1852.

RIMINGTON

v.

CANNON.

As to the sta. tute of limitations.

The counsel for the tenant objected that this evidence was insufficient to entitle the demandant to a verdict, and insisted that the issues should be found for the tenant. The learned judge refused to direct the issues to be so found, and directed the jury that there was evidence of the devise and gift alleged in the count, to Stephen Cannon, the father, and the heirs of his body (for it was agreed on the argument that the bill of exceptions should be amended to that effect); and, further, that the action of formedon had been brought in time.

We are all of opinion, that the court of Common Pleas were right in giving judgment on the demurrer for the demandant; and that the direction of the learned judge, so far as it related to the statute of limitations, given in conformity with that judgment, was correct. The reasons assigned for that judgment appear to us to be quite satisfactory.

The question is, whether, upon the true construction of the statute 3 & 4 W. 4, c. 27, the estate-tail having been discontinued, and the right of entry taken away by such discontinuance, on the 1st of June, 1835, the issue in tail can have his formedon within twenty years after the death of the tenant-in-tail, or whether the time begins to run in the life of tenant-in-tail.

The 38th section provides for this case. It enacts, "that, when, on the 1st day of June, 1835, any person whose right of entry to any land shall have been taken away by (inter alia) any discontinuance, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the 1st of June, 1835, but only during the period during which, by virtue of the provisions of that act, an entry might have been made on the same land by the person bringing such writ or action, if his right of entry had not been so taken away."

What, then, was the time when an entry might have

been made, by virtue of the act, if the right of entry had not been taken away by the discontinuance? That depends on the previous sections, the 2nd, 3rd, and 21st.

The 2nd prevents any entry except within twenty years after the right to make such entry accrues to the party making it, or the party under whom he claims.

It is clear that the demandant could make no entry until the death of his father; and, on the argument before us, Mr. Unthank, on the part of the tenant, conceded, that, if the question turned upon the 2nd section, he could not have argued the point. But he placed his chief reliance on the first part of the 3rd section, which enacts "that, in the construction of this act, the right to make an entry, &c., shall be deemed to have first accrued at such time as hereinafter mentioned, that is to say, when the person claiming such land, or some person under whom he claims, shall, in respect of the estate or interest claimed, have been in possession or in receipt of the profits of such land, and shall, while entitled thereto, have been dispossessed, or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time when such profits were received."

We are all of opinion that the discontinuance of possession here referred to, means, the quitting possession of land, to the possession of which he was entitled. The right of entry begins the moment the possession has been discontinued by the party entitled to it; and, if not exercised in twenty years from that time, it is barred. The principle of the act, generally speaking, is, to bar a person who has a right to enter, if he does not exercise that right in a certain time, not to bar those who cannot exercise that right,-"Contrà non valentem agere non currit præscriptio."

To this rule there are express enactments to the con

1852.

RIMINGTON

v.

CANNON.

1852.

RIMINGTON

v.

CANNON.

As to the construction of the will.

trary, as in ss. 21, 22, &c., which must of course prevail where they apply. But it is a strong thing to deprive a man of a right, who has had no opportunity of exercising it: and the general principle of the act, is, to extinguish rights which those who possess them have suffered to lie dormant.

The father of the tenant-in-tail could not have entered at any time after he had conveyed his estate to the feoffee. The discontinuance of possession mentioned in the 3rd section, is analogous to the dispossession mentioned therein, -the ceasing to possess, when he had a right to possess.

We agree with the court of Common Pleas, that the 21st section applies to the case where the right of entry of tenant-in-tail is barred by his neglect to make such entry in proper time, not to the case where he has conveyed away his own right to another, and put it out of his power to enter. In the latter case, the right of entry

is not barred by reason of the same not being made within the period limited, but by reason of his not being able to enter against his own conveyance.

We concur in opinion, therefore, with the court of Common Pleas, that the 38th section regulates the time within which the heir in tail must bring his formedon; that it authorizes the action to be brought within the time that he might have entered, if there had been no discontinuance; and that the time of entry was on the death of the tenant-in-tail. We, therefore, affirm the judgment of the court of Common Pleas on the demurrer; and we are of opinion that the ruling on the issue on the statute of limitations, on the trial, for the same reasons, was correct.

The points arising on the other issue, whether an estate-tail, as described in the count, was devised in the will, were argued before us at some length. Mr. Unthank conceded that the devise to Stephen Cannon, the

father, for the time of his life, and the devise over to his issue, gave Stephen Cannon an estate-tail; but he contended,-first, that the limitation to Stephen was an executory devise, and was too remote,-secondly, that, if not too remote, still the estate-tail was given to Stephen Cannon the son, not absolutely, which it was contended was the meaning of the count, but on a contingency, and so the allegation of the devise in the count was not proved.

To this it was answered, that though, if it was an executory devise, it might be too remote, that it was an immediate devise to Stephen in tail, defeasible if the real and personal estate devised to the trustees for sale and payment of debts and funeral expenses, should be insufficient for that purpose.

It was not argued, and indeed could not be successfully argued, that the devise to the trustees and their heirs, of the different estates, in trust to sell and pay debts and legacies and funeral expenses, operated only as a charge on the estates, particularly as the beneficial interest in each estate goes to different persons, according as the real and personal estates first devised are sufficient or not for the purpose of paying debts, &c. Nor do we think that the devise to Stephen Cannon can possibly be considered as an absolute devise to him, in the first instance, defeasible if the estate real and personal first devised should be inadequate. Such construction would be to do violence to the express words of the will, which gives the estate in question in this suit to Stephen Cannon, the son," in case the personal estate of the testator, and his lands, tenements, and real estate first above devised shall be sufficient to pay all his debts as aforesaid." The testator says, " then and in such case, I give and devise to my son Stephen" the lands now in question. The construction contended for would be to

1852.

RIMINGTON

V.

CANNON.

1852. RIMINGTON

v.

CANNON.

Limitation over

moteness.

change the words entirely, and to make a condition precedent into a condition subsequent to it.

The only questions, therefore, are,-first, whether the contingency, viz. the sufficiency of the real and personal estate first devised, was too remote a contingency,—and, secondly, if it was not, whether the allegation in the count was proved.

As to the question of remoteness, reliance was placed, on the part of the plaintiff in error, on the ruling of Lord Hardwicke in Bagshaw v. Spencer, 1 Ves. sen. 142, where he held, that a limitation was too remote, after all debts were paid, which would not necessarily happen within the prescribed limit. It was not, however, requisite to decide that point in Bagshaw v. Spencer, and therefore what Lord Hardwicke held did not amount to a decision.

In the present case, the limitation over does not denot void for re- pend on the actual payment of all the debts, but on the sufficiency of the assets to pay them, and on that sufficiency being ascertained by the sale of the real and personal estate of the testator comprised in the first devise, by public auction, pursuant to the trust on which the first devise is made to Williamson and Bowman, and their heirs. The second provision is, "in case it shall happen, that, upon sale of my real and personal estate herein-before devised, it shall be insufficient for the payment of all my just debts and funeral expenses," the residue of the real estate is given to the same trustees: provided, that, in case his personal estate and lands first devised shall be sufficient to pay all his debts as aforesaid, then and in such case there is a devise to Stephen, the son, in tail, of the lands and tenements in question in this suit. It seems to us that the words " as aforesaid" refer to the sale before directed, and are equivalent to saying, that, if the estate shall be sufficient upon