CHARGES BARRED BY TIME.

193

LETTER XXIV.

My last Letter relates to adverse possession of the estate itself, but a limitation has also been put upon proceedings to recover charges on the estate. Neither action nor suit can be brought to recover any money secured by mortgage, judgment, or lien, or otherwise, charged upon any estate, or any legacy (which, however, extends to legacies although payable out of personal estate only), but within twenty years, unless in the mean time some part of the money or interest has been paid, or some acknowledgment of the right to it shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled to it, or his agent, and in such case the twenty years are to run from the last of such payments or acknowledgments, but the time will not begin to run until next after a present right to receive the money has accrued to some person capable of giving a discharge for it. This is an important condition; for instance, if you, as tenant for life of your estates, were to pay off a charge upon it, but to take no step to keep it alive, and you were to live more than twenty years after the payment, yet the right to the charge would not be barred, for there would be no assignable person liable to pay it in your lifetime, and

* In Letter XIV. (on Mortgages), I have stated to you the operation of adverse possession on such securities.

+ 3 & 4 Will. IV., c. 27, s. 40; 19 & 20 Vict., c. 97, s. 10, appears to assume that there are savings in s. 40, 41, & 42 of the 3 & 4 Will. IV., c. 27, which are not to be found there.

N

194

rest.

ARREARS OF INTEREST.

the rent out of which the interest of the charge was to be paid belonged to you, who were entitled to the inteYou would be both the hand to pay and to receive. Where a judgment is entered upon a post-obit bond, time will not begin to run until after the death of the life, on the dropping of which the payment depends.

That part of the statute which requires an acknowledgment in writing to save time running, has received a liberal interpretation in favour of the claimant.

These provisions apply to the principal sums charged. Arrears of dower cannot be recovered for more than six years next before the action or suit.* And no arrears of rent or of interest of any money charged upon any land, or in respect of any legacy, can be recovered but within six years next after the same became due, or next after an acknowledgment of the same in writing has been given to the person entitled thereto, or his agent, signed by the person entitled thereto or his agent; with an exception, nevertheless, in favour of the creditor where a prior encumbrancer has been in possession within one year before the action or suit.+

This provision extends to interest on judgments, as well as to interest on mortgages, and if the remedy is barred against the real estate, the bar applies equally to any remedy against the personal estate of the debtor. There is still a further provision under another Act of Parliament, which was passed about the same time as the 3 & 4 W. IV., c. 27, to which I have already so amply referred, and which comes in aid sometimes of the latter

+ 3 & 4 Will. IV., c. 27, s. 42.

* 3 & 4 Will. IV., c. 27, s. 41. 3 & 4 Will. IV., c. 42. Unfortunately, the framers of the two Acts were ignorant of each other's labours; see 16 & 17 Vict., c. 113, s. 20, 23 (Ireland); 19 & 20 Vict., c. 97, s. 14.

PAYMENT OF INTEREST BY TENANT FOR LIFE. 195

statute. It is provided that all actions of debt for rent upon an indenture of demise, and all actions of covenant or debt upon any bond, or other specialty, shall be sued within twenty years after the cause of such actions. It contains savings in case of disabilities, with the nature of which you are already well informed,* and it gives effect to acknowledgments in writing, and part payments of any principal or interest; but it so far differs from a former provision, that although it requires the acknowledgment to be made and signed by the party liable, or his agent, it does not require it to be made to the person entitled, or his agent. But there are some nice distinctions on this head.

Where an estate of a deceased debtor is liable to a bond debt, which binds the heir, and the estate is settled on one for life, with remainders over after his death, payment of interest on the bond by the tenant for life, will keep alive the creditor's remedy against the remainder-men after the death of the tenant for life. will probably think this quite right.

You

* But 19 & 20 Vict., c. 97, s. 10, takes away the savings for absence abroad and imprisonment.

196

CHURCH PATRONAGE. RIGHT TO LIGHT.

LETTER XXV.

THIS Letter concludes my observations on Rights acquired by Possession.

As to your Church patronage, I may just notice that no advowson can be recovered by any person after three clerks in succession have held the same adversely, if the times of such incumbencies together shall amount to 60 years, and if not, then after the expiration of such further time as with the time of such incumbencies will make up the period of 60 years. No man, therefore, with ordinary vigilance, can be deprived of his advowson by an adverse enjoyment.*

The statute law† also provides for the claims to light, rights of common and rights of way, and other similar rights.

1. Where the access and use of light for any house or building has been actually enjoyed therewith for 20 years without interruption, the right becomes absolute and indefeasible, unless it was enjoyed by consent or agreement expressly given or made by deed or writing; and there is no saving for disabilities. The right, therefore, wholly depends upon enjoyment, and it is not required that the person enjoying it should have claimed a right to it; indeed, as it has been justly observed, every person has a right to all the light which comes to him. You should keep in view this distinction between the right to light, and rights of common and of way, or the like. But the Act converts into a right such an enjoyment only * 3 & 4 Will. IV., c. 27, s. 30.

+ 2 & 3 Will. IV., c. 71.

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197

of the access of light over contiguous land as has been had for the whole 20 years in the character of an easement, distinct from the enjoyment of the land itself. This may require explanation: A house and garden were always in the possession of the same person, and the access of light to the house was over the garden, and the garden was held under a yearly tenancy, consequently, the enjoyment for 20 years during the tenancy, which was by virtue of the tenancy, was held not to establish the right. As to an interruption of the enjoyment, that will have no effect, unless it has been submitted to for one year after the party interrupted had notice thereof, and of the person making or authorising the same to be made. The interruption has been said to mean some physical interruption. It means an interruption by the owner of the locus in quo.

2. Rights of common and other profits and benefits to be taken or enjoyed from or upon any land (except tithes, rents, and services), which have been enjoyed for 30 years by any person claiming right thereto (in that respect distinguishing them from light), without interruption, cannot be defeated, by only showing, according to the old law, that the right has not been enjoyed from time immemorial; for actual enjoyment for 30 years is now allowed as an equivalent, so that no presumption is admissible; but the claim may be defeated in any other way, in which it might have been defeated before the new Act; for example, by proof of a grant or license, written or parol, for a limited period, comprising the whole or part of the 30 years, or the absence or ignorance of the parties interested in opposing the claim, and their agents during the whole time it was exercised.

When the right has been enjoyed, as already described,