the claim may be defeated in any other way in which it was defeasible before the statute passed, so that, e.g., a case of thirty years' enjoyment would still be satisfactorily answered, by showing that the enjoyment was without the knowledge of the adverse party, or that it was by his mere licence or permission. And nothing is to be deemed an interruption of the right, unless it shall have been submitted to or acquiesced in for the space of one year (p); a mere cessation of the enjoyment being neither an interruption nor a discontinuance of the right (q). The Act also provides, that the time during which the adverse party shall have been an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action as to the claim shall have been pending and diligently prosecuted, shall be excluded in the computation of the period of thirty years (r); but that where there has been an enjoyment for sixty years, the claim shall be absolute and indefeasible, unless proof is given that the enjoyment took place under some consent or agreement in writing, expressly given for the purpose (8). And in addition to these regulations as to the time for a prescription, there are others as to the manner of making it, and among them the following, that he who prescribes under the Act shall not be required in any case to claim as in right of the owner of the fee (t); and that, as regards time, no time falling short of the full time prescribed by the Act shall raise any presumption of right under the Act.

Second, with regard to ways and other easements, watercourses and the use of water (u), the Act contains similar provisions; but the periods conferring a prescriptive right in the case of ways and other easements, watercourses and waters, are twenty and forty years (in

(p) Sect. 4.

(q) Hollins v. Verney, (1884) 13 Q. B. D. 304.

(s) Sect. 1.

(1) Sect. 5.

(u) Sect. 2.

() Sect. 7.

lieu of thirty and sixty years) respectively. When the land or water as against which the claim is made has been held for a term of life or for a term exceeding three years, such term is to be excluded from the computation of the forty years, in the event of the person who may be entitled in reversion resisting the claim within three. years after the term expires (x). As regards the valuable easement of lights, the uninterrupted enjoyment of these for twenty years constitutes at once an absolute and indefeasible right to them, any local usage or custom to the contrary notwithstanding; but, of course, even as regards lights, the claim may be defeated by showing that the enjoyment took place under some agreement in writing (y).

Referring to the statement made a short time ago (p. 421), to the effect that the passing of the Prescription Act has by no means abolished the old rules of the common law, we may point out that the Act, as its preamble shows, was passed with limited and definite objects. Where, therefore, its provisions are not inconsistent with the rules of common law (as, for example, in the enactment (z) that user for a shorter than the statutory period will not raise any presumption in favour of a claim), those rules will, it is presumed, still apply. And the Act itself expressly excludes from its operation claims to tithes, rents, and services; so that, at any rate as to the two last, the rules of prescription at the common law will still apply (a). It has also been held, that claims to profits in gross are not within the Act (b).

(x) Sect. 8. (A curious omission in this section has raised a doubt as to whether it applies to easements other than ways and watercourses. It obviously does not apply to profits à prendre.)

(y) Sect. 3. (This section, unlike the others, does not bind the Crown. Wheaton v. Maple & Co., [1893] 3 Ch. 48.)

(z) Sect. 6.

(a) Sect. 1. (Prescriptive claims to exemption from tithes are regulated by the Tithe Act, 1832.)

(b) Shuttleworth v. Le Fleming, (1865) 19 C. B. (N.s.) 687. [A curious rule of evidence has recently been laid down by the Charitable Trusts (Recovery) Act, 1891, to the effect that, when the Charity Com

Incorporeal hereditaments are capable of extinction. This may be effected by a release (c), as when a person, entitled to a common, releases the right of common to the owner of the soil over which it is claimed. But they may also be extinguished by abandonment or non-user; and, after disuse for twenty years, a release will in general be presumed (d). Incorporeal hereditaments may also be extinguished by unity of seisin, as where the person entitled to a way or common becomes seised in fee of the land which is subject to the right; for the dominion of the soil itself, and of an incorporeal right relating to the same soil, cannot, in general, subsist together in the same individual. But franchises are an exception to this rule for these, as before remarked, are of a nature collateral to the inheritance itself, and are consequently not affected by any unity of seisin (e); although franchises also may, in certain cases, be extinguished, e.g., by a reunion with the Crown, or by forfeiture for misuser, or for non-user. Formerly easements and profits did not escheat, but, on the death, intestate and without heirs, of their owners, became extinct for the benefit of the servient tenements. But now, by the Intestate Estates Act, 1884, the law of escheat is to apply to incorporeal hereditaments.

missioners are suing to recover a "yearly or periodical payment made in respect of any land," on behalf of a charity, proof of render for twelve consecutive years shall be prima facie proof of the title of the charity to payment of the sum

in perpetuity.]

(c) Co. Litt. 280 a.

(d) Seaman v. Vaudrey, (1810) 16 Ves. 390; Moore v. Rawson, (1824) 3 B. & C. 332.

(e) 4 Inst. 318.

CHAPTER XXIV.

THE CONVEYANCING AND SETTLED LAND ACTS,
1881 TO 1892.

As has already been indicated, many statutes relating to the law of real property were passed during the earlier part of the nineteenth century. These generally were designed for the purpose of releasing freeholds from the bondage of antient customs, and depriving them of the benefits of feudal privileges. Fines and recoveries as modes of conveyance were abolished, fee simple lands were made assets for the payment of their deceased owner's debts, and all interests in them were made freely alienable during their owner's life by deed of grant without livery, and on their owner's death by his will attested by two witnesses.

These have already been sufficiently discussed. But there was another series of important statutes passed in the latter part of the same century which we have not yet fully considered. This series was passed mainly with the object of facilitating what has been called free trade in land. The chief of these are the Vendor and Purchaser Act, 1874, the Settled Estates Act, 1877, the Conveyancing Acts, 1881 to 1892, the Settled Land Acts, 1882 to 1890, and the Land Transfer Acts, 1875 and 1897 (ƒ).

The Land Transfer Acts, 1875 and 1897, introduced an entirely new system of conveyancing, and a separate chapter will be devoted to them. The other Acts effected a revolution in the old system of conveyancing and in the

(f) These Acts will be shortly referred to in the discussion of their provisions as follows: V. & P. Act,

1874; S. E. Act, 1877; Con. Acts, 1881-1892; S. L. Acts, 18821890; L. T. Acts, 1875 and 1897.

position of a tenant for life of settled land. It will be convenient to deal first with those directly affecting conveyancing; and to devote the remainder of this chapter to the Settled Land Acts, 1882 to 1890, which form a sort of code in themselves.

PART I. THE CONVEYANCING ACTS, ETC.

The Vendor and Purchaser Act, 1874, and the Conveyancing Acts, 1881-1892, as has been said, effected a revolution in the old system of conveyancing. They did this, not merely by provisions affecting the form of deeds by which purchases, leases, and mortgages of lands are carried through, but by provisions affecting the relations between the parties at every stage throughout the transaction. It seems best then in explaining these Acts to take each such stage in its natural order, and point out as shortly as possible how the law or practice relating to it has been altered by one or other of them.

TITLE.-When a contract for the sale of land is entered into, the first step is for the purchaser to enquire into or investigate, as it is called, the vendor's title. This is done by the vendor placing before the purchaser an abstract of his title and evidence to prove such title.

Now the three questions that arise in investigating title are (1) What title the vendor shall show in his abstract; (2) How such title shall be proved; and (3) Who is to pay the costs of investigation. On all these the contract of sale may make what provision the parties please, and where such provision is made the parties are, of course, bound by it (g). Frequently, however, the contract makes no provision at all. It is then said to be "open" as regards these points. And in an open contract the Acts in discussion regulate the rights of the different parties to the conveyance.

1. As to the title the vendor must show in his abstract.

(g) In re National Provincial Bank of England, [1895]1 Ch. 190.