i UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY AN ESSAY THE NEW STATUTES llELATING TO LIMITATIONS OF TIME, ESTATES TAIL, DOWER, DESCENT, OPERATION OF DEEDS, MERGER OF ATTENDANT TEKMS, DEFECTIVE EXECUTIONS OF POWERS OF LEASING, WILLS, TRUSTEES AND MORTGAGEES. BY SIE EDWARD SUGDEN. LONDON: S. SWEET, 1, CIIANCERY-LANE, aatu ISoofesJclIcr antt ©utilisfjer. 1852. T London : Printed by Hnnry IlsnsarJ, near Lincoln's Inn Field*. ADVERTISEMENT. The foundation of this Essay was a chapter in the Writer's Treatise on Vendors and Purchasers, which, however useful in that work when the new laws were but little known, no longer forms a fit portion of it now that the decisions upon the acts have become numerous and important, as it would be inconsistent with the main object of the Treatise to load it with the introduction of the points decided. It is hoped that the Essay in its present shape will be found to be a useful comjoendium of the statute law as expounded by the decisions of our various Courts. A perusal of the Work will show where the legislative remedy is faulty, and requires amendment ; and this is a subject to which the attention of the Govern- ment should be directed : No time should be lost in amending the law as to the execution of Wills. Boyle Farm, GtU December 1851. 783159 CONTENTS, CHAPTER I. OF THE TITLE BY NON-CLAIM. SECTION I. OF THE BAR UNDER THE OLD LAW. 10. Rule in equity as to (runts . 14 "^ ' J. /I* to an equity of redemjitnm 18. J 17. In cases of f mud .... 20. Disnlji/ilies in equity . . . 21. Title by non-claim .... 2. Old statutes barred the remedi/ onli/, I..1 ."i. Sarinys in 32 H. S . , . . 2 4. And in 21 Jac. 1 2 G. Presumption of death .... 3 7. Disabilitu of coparcener ... 3 8. Sixty years' 2'OSsessio7i not a title, 3 SECTION II. OF THK NEW LAW : 3 & 4 W. 4, C. 27. WHAT THE ACT HAS ABOLISHED. 2. All real and mixed actions, except |. 4. Descent cast, discontinuance, &fc dower, quare impedit, and eject- ment p. 10 3. Savinys 10 abolished H 5. Continual claim also .... 1 1 6. Riyht extinyuished .... 11 7. Time runs from what period . 12 SECTION III. OF THE PERIOD OF NON-CLAIM, AND WHEN THE TIME FIRST ACCRUES, AND OF SAVINGS FOR DISABILITIES. 1. Meaniny of words in the act . p. 14 2.1 Twenty years' non-claim a bar : an l.i ejectment the remedy : sect 2, 10 3. But tithes recoverable from occupier, 16 4. Turnpike tolls not within the act, 17 I). Quarries and limestone land are, 17 G. Heriots and certain rents, how far affected 17 'In cases of possessions when time accrues: sect. 3. — 1. When claim- ant has been in jwssession. — 2. When a deceased person teas last in possession. — 3. When a ^ grantor was last in possession, 18. 19 jQ ^Rent created by will within 2d sec- j I *\ tioti : James v. Salter, with oh- \ serrations 19-23 10 17 Adverse possession in the old sense no lonyer necessary ... 24 Section 2 extends to rnortyayesasto the land 24 There must be an available riyht of entry : party binding himself by esto2)pel 25 18. Possession as apparent owtier may be held a tenancy at will . . 26 19. Whether time ran against a mort- gagee where interest paid : Doe v. Williams 27 20. A^otv by statute time runs only from last payment of any part of princi- pal or interest. — Mortgagee tenant for life of land 28 Time does not run against annuitant whilst annuity is paid ... 29 21 CONTEiNTS. 22. Nor ayainst the riijht to mines re- served, by non- working . . 31 23. Rent in 2d section means an estate in a rentcharge, Sfc. . . .31 24. Non-payment of rent binder lease does not bar a distress . . 32 25. When time runs for land and for rent 34 26. Charities, how far bound by time, 35 27. Heir barred as against devisees may claim ivfiat is undisposed of . 35 28. Possession without title good against person barred 35 29. Time running cannot be stopped, hit claimants entitled to same time as their grantor ... 35 30. T IVustee of attendant term not barred 31./ by possession q/" cestui que trust, 36,37 32. Term to raise jJortions ... 41 33. After tive^ity years, a power of re- entry in lease cannot be exercised, but lessor may recover when lease edpires 41 34. In cases of reversions where time runs: sect. 3. — 4. Reversionary estate, and no possession. — 5. On forfeiture or breach of condition, 42 35. Oil forfeiture or breach of condition, reversioner may wait tillpossessioti falls : sect. 4 42 36. Reversioner's right saved, although he was in possession before estates which have determiried : sect. 5, 43 Z7. ^Concurrent rights barred : sect 20, 52./ 43, 57 38. Grant v. Ellis, with observations, 44 39. " Profits" explained : mean rent as against lessee : sect. 35 . . 45 40. Right to recover at the end of lease, although rent not paid : Doe v. Oxenham 47 41. Lease in writing, at no rent, or at one under 20 s., not within 9th section : lessor may recover, al- though rent paid to wrongful claimant 48 42. Doe V Monlsdale : operation of bth and 20th sections . . , . 48 58 63 Doe V. Liverscdge : what is a reco- very of possession within sect. 20, 50 The operation of the bth clause of sect. 3, of sect. 4, and of sect. 5, considered 51 Administrator bound as from the death of deceased . . . . 53 Possession by tenant at will : when time runs : sect. 7 . . . .54 Meaning of " rent " in that section, 55 Continuous tenant at will : qu. . 55 Possession of tenant at will deter- mined before act : no bar . 56 }But possession before, operative where continued .... 57 Purchaser let into possession a te- nant at will : a tenant at will may create another 57 Possession by husband, prima facie a fee, cannot be adopted by wife, 58 Purchaser in possession a tenant at will : his devisee not such without sorne act by seller : constructive trusts not within sect. 7 . • 58 Tenancy by sufferance ... 59 Right of remainder-man or rever- sioner to recover, though no rent paid to tenant for life ... 59 Acts amounting to an acknowledg- ment that a man holds as tenant at will 59 Doe V. Moore 60 Possession by tenant from year to year, iortions 105 A trust for debts includes a judymcnt debt 106 rLeyacics secured on land or rent by J^ an express trust within section L 25 106 A mere charge not an express trust, 107 Remainder-man's right tinder sec- tion 25 107 , What amounts to a concealed fraud, 107 23. Possession tinder a common mistake, 108 24. Acquiescence still operative . 108 25. Mortgagee in possession toithout ac- knowledgment of mortgagor's title, time runs : sect. 28 ... 109 26. Effect of purchase by mortgagee of the estate for life in the equity of redemption Ill ^„ (TVansfer of mortgage, as such, by oa \ mortgagee alone not an acknov;- ' '- ledyment Ill 29. Keeping accounts not an acknow- ledgment, semble .... 113 30. Where a letter is an acknowledg- ment ; ivho is an agent to receive it 113 31. Ko savings for mortgagor under section 2S 114 32. Whether a bill filed will at law save time 114 SECTION VII. OF MONEY CUAUGEU ON LAND, LEGACIES, 13. 1. Twenty years a bar of money se- cured upon land, S^'c, or a legacy : sect. 40 . . . . . . p. 116 2. Rent or interest barred by s. 42, 117 3. Foreclosure suit not within s. 40, semble 117 4. Exceptions 118 5. Meaning of a present right to re- ceive 118 6. Judgment creditor has a new right on a revivor on scire facias : not on action of debt or judgment, 119 7. Whether a judgment creditor's right is saved by a creditor's bill filed by another, to which he is not a 2)arty ; Ber ring ton \. Evans, 119 8. Watson v. Birch .... 120 9. Observations on Berrington v. Evans 120 10. Opinions thereon .... 121 11. The rule suggested .... 122 12. Judgments affecting personal estate only, within the statute . . 123 14. 15. 16. 17. 18. 19. 20. 21. 22. DOWER, RENT, AND INTEREST. Collateral security saved by the con- tinuance of the original security : Bennett v. Cooper .... 124 Charge paid off by tenant for life not barred in his lifetime . 125 Must be a hand to pay and a party to receive 125 Judgment on post obit ; time does not run until death of person, 125 Vendor's lien barred by time, 126 Legacy out of personal estate barred by time ; residue a legacy : sub- seqteent assets: prior charges, 126 Remainder-man's right to legacy not barred during life of tenant for life 126 Part payment prevents the bar : effect on collateral securities, 127 Acknowledgment saves the right, 128 Acknowledgment by trustee suffi- cient : Lord St. John v. Bough- ton 129 a 4 Vlll CONTENTS. 23. IVArre letters amount to an acknow- ledymcnt 129 21. Letter written by an amanuensis binding: initials of writer . 130 25. f Schedules, affidavits, answers, may 26. \ amount to an acknowledyment , 130 27. Report of Master not an acknmoledg- vient : Hill v. Staioell : doubted, 131 28. Express trust takes cases ottt of the iOth section 132 20. Arrears of dower recoverable for six years only : ». 41 . . . . 132 30. Arrears of rent, or of interest of charge or legacy for six years only : effect of possession by prior incum- brancer : s. 42 133 31. Sect. 42 applies to ai-rears of an- nuity 133 32. And to interest of money charged on land: not to turnpike tolls, 133 33. iVor to an annuity by will payable out of 2)crsonalty ; sed qucere, 134 34. Interest on judgments tvithin A2d section ; right barred against real estate, barred also against person- alty 134 Section 12 operates on i. 26 of Z&(\ Vict. c. 105 .. . 135 Express trusts not tvithin s. 42, 135 No savings in s. A2 for disabilities, 135 (Judgment creditor of remainder- l man entitled to six years' arrears {only 137. 141 Acknowledgment of debt . . 137 Difficulty created by 2> S( A W. 4, c. 42 137 Whether rents reserved by lease fall within \2d section of c. 27 . 138 138 \Opinions thereon . . Rentcharge within both acts . 140 Possession by former incumbrancer saves the right 141 Possession of judgment creditor operative 142 Difficulty where principal and inte- rest claimed 142 Mortgage without covenant, toholly . within i2d section of c. 27 . 143 So if there is a covenant in the mort- gage . . 143 Arrears of fee-farm rent : no saving, 143 Of claiming the benefit of the sta- tute : pleading .... 144 SECTION VIII. OF CHURCH PROPEBTY AND ADVOWSONS, AND OF THE LIMITS OF THE ACT, AND OF MODUSES AND EXEMPTIONS. 1, Time for spiritual and eleemosynary corporations . . . . p. 147 2. When time begins to run . . 148 3. Advowsons 149 4. Incumbents by lapse : by promotion to a bishoprick .... 149 5. Estate tail in advowson . . 150 6. One hundred years full period, 150 7. Lin, its of act : Spiritual Court in- cluded : Scotland and partially Irel'ind excluded . . . . 150 8. 2 ij- 3 Will, i, c. 100, moduscs or exemptions : 30 years . 60 years, 151 9. Corporations sole . . . . 152 10. Enjoyment discharged of claim suf- ficient ...,.,. 153 11. Act operates in case of occupier i not to disputed titles to ownership of tithes . 153 12. 7* not repealed by the 2 &^ Z Will. 4, c. 27 : several operation of the two acts 154 13. Decrees 156 14. What time shall be excluded . 156 16. Mode of pleading .... 157 17. No presumption to be allowed upon enjoyment for less period . 157 18. Suits saved . Tithe Commutation Act 158 19. Certain demises and compositions saved ........ 158 CONTENTS. IX SECTION IX. OF RIGHTS OF COMMON, OF WAY, OF LIGHT, &C. 2^3 Will. 4, c. 71. «. I : riffhis of profits a prendre : thirty years : sLvty years p. 160 Section 2. Easetuents twe7ity years : forty years 161 Section 3. Light twenty years, 162 Section 4. Computation of time : interruption 162 , Section 5. Mode of pleading, 1 62 Section 6. Restriction of presump- tion 163 . Section 7. Disabilities saved: te- nancy for life, S^c. . , ,163 Section 8. Exclusion of time in computing the forty years . 163 yGeneral view of the operation of the j act 164 Party must claim right to j'i'ofts a prendre and easements: what amounts to such a claim . 166 Leave asked or agreement ivithin the period, admission of no right, 167 Unity of seisin : minify of possession , time does not run . . . . 167 Must be without interruption : what amounts to an interruption: the whole time must be covered, 167 Natural causes not an interruption, 169 Light must be enjoyed as an ease- ment distinct from the enjoyment of the laud 169 , Hartridge v. Warwick ace. . 169 Other modes in ivhich the thirty years for profits a prendre, or twenty years for easements, may be defeated 172 20. Custom of London excluded as to light 172 21. How time is to be reckoned : effect of interruption for less than a year, 172 22. Later years unaccounted for, fatal, 173 23. Cesser of user under agreement or new way : yet time runs . 1 73 24. Proof of enjoyment beyond the period 173 25. Abandonment of right, irrespective of time 174 26. Operation of disabilities : tenancy for life 174 27. Saving for reversioner as to forty years' claim of easement . 175 28. Difficulties upon section 8 : conve- nient substituted for easement, 175 29. No bar, unless the rights of all are barred 176 30. Pleadings : exclusion of presump- tion 176 31. Section 5 inust be literally followed, 177 32. Time must be stated according to section 4 177 33. What must be specially replied to ; and what given in evidence under a general traverse . . , . 177 34. Tenancy for life should be specially replied 179 35. Unity of possession or circumstances negativing user as of right may be proved under a traverse . . 179 36. Difficulties upon section 5 : light: rights in gross : disabilities. 179 37. What a purchaser should ascertain, 180 CONTENTS. CHAPTER II. or TITLE UNDER TENANT IN TAIL: 3 & 4 WILL. 4, C. 74. SECTION I. Of Dlil'ECTS IN llliCOVERlES, OF EXISTING AGKEEMENXS, AND WHAT THE ACT ABOLISHES. 1. Ancient demesne .... p. 183 2. Court ullhoul jnrisdiclion . . 18 4 3. Errors apparent from deed amended in fines 18t '1. So in recoveries 184 5. How acted UJI071 184 6. "1^ Recoveries drfeclive rendered valid, 7. J 184 8. Fines and recoveries abolished, 186 C Warranties by tenant in tail void against issue, i^'c. ... 186 10. Statute as to estates tail ex jirov. viri repealed 186 1 1 . Existing agreements to be performed by deed 186 SECTION II. 3. 4. 0. 7. 8 9. 10. 11. 12. OF THE POWER OF He can acquire the fee simple, p. 187 Against whom 187 Estates tail in contingency or di- vested 188 Persons taking in defeasance of the estate tail 190 Rojier V. Halifax .... 191 Powers 192 1 ./ ^Lord Scarborough's case . 194 Prior estate, to pass, must be con- veyed 194 Any di^jjosition effectual . . 194 TENANT IN TAIL. 13. Contracts; charges, Sfc. 195 14. Contracts may be enforced, but not to bind the entail under the act, 196 15. Estates tail ex provisione viri, 196 16. Confirmation of voidable estate 196 18. Base fee may be enlarged . . 197 19. Mortgage or other limited purpose : limited estate charge or incum- brance operate variously . 198 20. Explanation 198 21. Union of base fee and remainder in the same person, the former enlarged 199 SECTION III. OF THE OFFICE OF PKOTECTOK. 2. What prior estate gives the office, p. 201 3. Undivided shares: httsband and vife 201 4. Estates by confirmation give the right 202 5. Lessees at a rent, dowress, bare trustee or representatives, not en- titled 202 G Office accelerated .... 203 7. Savings of rights under existing settlements 203 8. Where a seller of a remainder may bar it 204 9. Where a jjrotector may be appoint- ed 204 10. Where the court will not appoint a protector in making a settle- ment 205 11. Saving of right of bare trustees, 206 12. Infant tenant in tail of estate to be be sold for payment of debts, 206 CONTENTS. XI 13. Tenant in tail selling before he has disentailed the estate . . . 206 14. Ltiuatics, traitors, infants, want of protector, S^'c, represented hij Lord Chancellor or Court of Chancery, 20G 15. Land in Great Britain, lunatic in L-eland 207 Wife of felon and the Court can jointly consent 207 Lunatic tenant for life of land- money, remainder- man in tail al' lowed to dispose of his interest, 208 16 17 18. No jurisdiction where lunatic tenant in tail : consent to be for benefit of lu7ialic's family . . . 208 19. Base fee not enlarged to the detri- ment of lunatic' s family . 208 20. Remainder in lunatic will not be barred except in special case, 209 21. Leases of lunatic's estate , . 209 23. Protector's consent necessary 209 25. Uncontrollable 210 26. Consent canyiot be revoked . 211 27. 3Iarried woman' s co7isent . 211 SECTION IV. WHAT DEEDS AUG TO BE EXECUTED BY TENANTS IN TAIL AND PROTECTORS, AND OF THE GENERAL OrERATION OF TUE ACT. 1 . A deed of conveyance : married woman .- contracts inoperative un- der the Act p. 211 2. Protector, how to consent . . 212 3. Enrolment 213 4. Leases for a certain term, &(c. ex- empted from enrolment . . 213 5. Hou> conveyance operates . . 214 6. Equitable jurisdiction excluded, 214 7. Quasi entails in estates pur autre vie, or i7i chattels, unaffected . 215 8. Tenant in tail may still create base voidable fee not under the statute, 215 9. Retains his old power by the sub- stitute ; greater power in one case, 216 Appointments operate as part of the settlement 217 11. Issue in tail cannot bar his expec- tancy 217 12. Protectors by estate, or by nomina- tion 217 10 13. Estate may be legator equitable, 218 15 Bare trustees excluded : operation of act considered . . . . 219 16. Assign excluded : like considera- ation 220 17. Power of tenant in tail enlarged, 221 18 Power of Lord Chancellor, or of Court of Chancery . . . 221 19. Savings of existing settlements, 222 20. Where a remainder has been sold, 222 21. Saving of right of bare trustees, 223 22. Error in dates 223 24. Protector by aj)pointment . 224 25. Limit of 2}0wer .- merely substitu- tionary 225 20. Nature of office 225 27. Purchaser's title under act . 226 1. Legal and equitable tenants in how to convey : consetit of lectors 2. Where the consent is not by deed, 228 SECTION V. OF COPYHOLDS. tail, pro- p. 227 3. "^Equitable tenant in tail may convey G.J by deed or surrender . . 229 4. Prior purchaser without notice pro- tected 229 5. Enrolment . 229 Xll CONTENTS. SECTION VI. OF BANKRUPTS Extent of repent of former acts p. 231 2. Power if comtnissioners over estates tail and base fees .... 232 3. Consent of protector .... 232 i. Enrolment and entry of deeds of con- sent 232 5. Base fee in purchaser enlarged by act 232 G. Voidable estate in purchaser con- frmed by disposition by commis- sioner 234 7. Saving of right of purchaser without express notice 234 8. Bankrupt's power over his surplus estate 235 9. Disposition by commissioner valid although bankrupt dead . . 235 10. Disposition of copyholds (not merely in equity) to operate as a surren- der 235 11. Assignees to receive rents and en- force covenants until a disposi- tion 236 12. New act of bankruptcy adopts these provisions 236 SECTION VII. OF MONEY ENTAILED ; AND OF DISPOSITIONS BY MARRIED WOMEN. 1 . Lands to be sold or the money con- sidered as land purchased, p. 237 2. Extended to lands in Ireland . 238 3. Acknowledgment unnecessary of deeds to be enrolled . . . 239 ■1. New bankrupt act .... 239 5. Power of married woman, not being tenant in tail, to dispose by deed 239 6. Power of married woman to dispose of reversionary interest in money charged on land or land-money : Hobby V. xMlen 240 T . May release right of dower . 242 8. Powers in feme covert not inter- fered with : how her deeds are to be executed, Sfc 242 9. Surrender of copyholds by husband and wife of equitable estate valid, 243 10. Power to dispetise with husband's concurrence 243 11. Wife authorised to convey copy- holds given to her separate use where husband living abroad with another woman 243 12. Married woman cannot be compelled to convey under decree for sale, 244 13. Enrolment of deeds executed by her as tenant in tail, 2>>'otector, or owner : separate examination, 244 14. She may disclaim by deed . . 244 SECTION VIII. OF ENROLMENT AND ACKNOWLEDGMENT OF DEEDS, AND OF CON- FIRMING A purchaser's voidable estate. 1. Acknowledgment unnecessary, p. 245 2. Operation of enrolment . • 245 3. Conflicting rights of purchasers : operation of express notice . 246 \. Policy and frame of the act . 247 CONTENTS. XIU SECTION IX. OF THE ACT KELATING TO IRELAND. 1. Operates, from what period, p. 249 3. Esfetids to contingent interests, 249 4. Rights of Crown partially saved in English act 25fl 5. To what extent saved in Irish act, 250 6. The like in bankrnptcy and moneg entailed 251 8. Confirination of voidable estate, 251 9. Married ivomans power . . 252 11. General power to convey contingent interests 253 12. Confined to Ireland, semble . 253 CHAPTER III. OF DOWER. 1. Dower barred by legal term, p. 254 2. Dower of wije of trustee or mort- gagee 255 3. Eviction of jointure . . . 255 4. Equitable jointure .... 256 5. Bar of dower no bar of thirds, 257 6. Infants 257 7. Equitable jointtcre on infant • 258 10. Exceptions out of neiv dower act, 259 11. Upon purchases, dower of pur- chaser's wife shotild not be barred without instructions . . . 260 12. New right of dower . . . . 261 13. Husband's power over dotver by dis position 202 15. By charge or contract . . . 2G3 10. Bg declaration in the conveyance, or by deed 263 17. By his will 264 20. Wife barred by devise to her of any dowable land 264 21. But not by personal estate, or of land not liable to dower . , 265 22. Covenants not to bar doiver binding in equity 205 23. Purchaser's inquiry . . . 265 24. Curtesy 265 CHAPTER IV. OF TITLE BY DESCENT 1/1 Descent to be traced from the pur- 19!/ chaser .... p. 200. 275 2. Actual seisin unnecessary . . 268 3. Descent to be proved to exclude title as purchaser 268 4. Son of illegitimate father , . 268 5. Heir though devisee to take by des- cent ; grantor or his heirs also, 270 6. The old law 270 7. Where purchaser's ancestor to be deemed the purchaser . . 271 9. Descent from brother or sister, 271 10. Lineal ancestors heirs to issue, 272 W. Male line before the female . 272 4 & 5 W. 4, c. 106. 12. Preference of mother of more re- mote male ancestor . . . 273 14. Half blood admitted . . . 273 15. Attainder not a7i impediment . 274 16.1 Limit of act 274 18. Possessio fratris abolished . 275 21. Canons of descent .... 270 22. Examination of pedigree , . 279 23. Where a son is the purchaser, 279 25. Where the father is the purchaser, 280 26. Estate of coparcener descends to her issue 281 XIV CONTENTS. CHAPTER V. Oi THE NEW OPERATION OF DEEDS, AND OF THE MERGEU 01' ATTENDANT TERMS, 1. S S^ 9 Vict, c. lOG, lease for a year; feoffment; j)artltion and exchange; surrenders; leases, assignments; "give," or "grant ;" stranger to deed; indenting deed . p. 285 2. Conveyance of contingencies, ^c. ,- disclaimer by inarried woman; contingent remainders saved; merged reversion .... 286 3. 8 d^- 9 Vict. c. 112; merger of at- tendant terms ; saving , . 287 4. Object of t lie act 288 5. Satisfied term attendant by express declaration, merged: Doe v. Price, 288 6. rf rigid to inheritance barred, so is right to term 290 7. Doe V. Jo7ics 290 8. Obsenations on that case . . 292 CHAPTER VI. or RELIEF AGAINST DEFECTS IN LEASES GUANTED UNDER POWERS OF LEASING. ..r 2. 12 (S;- 13 Vict. c. 2G; itivalid lease under power of leasing to operate as a contract for valid lease in L favottr of lessee ... p. 295 3. Acceptance of rent a confirmation, 297 [Leases granted prematurely, valid \' I if lessor live to time when he ''I conld have granted them . 297 ^Leases to operate under jiower, 298 8. J 6. Rights of lessors and lessees saved, 298 9. Right of lessee under the act : hard- ship on remainder-man . . 299 13 Sf 14 Vict, c. 17 : new proi'ision as to acceptance of rent : confirma- tion in writing required , . 300 Where person able to confirm the lease without variation, lessee bound to accept the confirmation, 300 12. Observation on the two acts , 301 10 11 CHAPTER VII. OF TITLE BY DEVISE. SECTION I. WHO CANNOT MAKE A WILL, AND HOW A WILL IS TO BE EXECUTED AND ATTESTED. 1. Wills which are not within the act, p. 303 2. Rules which remain unaltered, 305 3. Infant cannot make a will . 30G 4. Married woman's power to make a will 307 5. Lunatics, ^c, incapable of making a will 308 G. Alien's will 308 7. Will made under a disability, 308 8. IJow a will is to be executed, 308 9. Appointments by will included, 309 CONTENTS. XV 10. Publication unnecessary . . 309 11. Witnesses how to attest will . 309 12. No relief in equity : aiypointment, 310 13. Leyacies by unattested codicil not sripported by charge in will . 310 14. Testator's siynature to be at thehot or end oftvill 310 15. Early construction of the words, 311 IC. Where a printed form was used, 312 17. Name introduced into the attestation clause 313 18. A siynature in the margin invalid, 313 19. Restricted construction of the words '^ foot or end" .... 314 20. Smee v. Bryer : signature required to be immediately at conclusion of will 314 21. Observations thereon . . . 316 22. Signature after attestation clause still valid : even where it follows the names of the witnesses . 317 23. Cases in which the rule in Smee v. Bryer has been applied : Holbech v.Holbech 319 Where the signature is after the at- testation clause, there must not i be a blank space before that clause: Minty^s case: Hearne''s case: Hill's case . . . 321 26. Wliitile's case contra . . . 323 27. Smith's case : appointment . 324 28. Shadwell's case 325 29. White's case 326 30. Observations on those cases . 328 31 . Rowe's case : Wrightson's case, 328 32. Space allowed for a blind testator's signature 331 33. Will must be signed before witnesses sign : testimony of witnesses, 332 34. Attesting ivitness may sign for tes- tator •• marksman : signature by first husband's name . . . 332 35. What is a sufficient ackiwwledgmcnt by testator of his signature . 332 37. May be 7nore than two witnesses: competency of witnesses : felony .• lunacy 334 38. How they are to sign : marksman : initials 336 39. What is a sufficie7it presence of testator during signature by wit- nesses : blind man . . . 337 40. Not material where witnesses place their signatures .... 338 41. No form of attestation necessary, 338 42. Where a codicil sets up an informal will: incorporation by reference of other papers .... 339 43. Effect cannot be given by will to future codicils not duly executed : operation of confirmation . 340 44. Effect of unattested and uneorj^lained alterations 340 SECTION II. OF THE REVOCATION AND REVIVAL OF WILLS. 1. Revocation by marriage . p. 342 2. Revived by codicil .... 342 3. Woman's will under power revoked: except ioti 342 4. N^o revocation by alteration in cir- cumstances 343 5. Revocation by another will, 8fC., or by burning, teariny, or otherwise destroying the will: ivhen there are two parts, how destroyed, 343 6. Old rules which are still operative, 344 7. Destruction of the instrument, 345 11. Destruction of testator's signature S7ifficient : so pencil writing rub- bed out 345 Cancellation not a revocation 340 How obliterations, interlineations, or other alterations are required to be executed 347 Obliteration where substitution in- tended not operative unless the latter is valid 347 Obliieralion efective, where . 348 Magnifying glasses used to discover parts obliterated .... 348 XVI CONTENT?;. 14. Revival of revoked vill. nf v>HI, first parili/ revoked and tticn wholly revoked .... 348 15. Codicil must shorn an intention to revive a revoked vill . . . 348 IG. Operation of a codicil in reviving revoked wills 349 17. Republication: operation of will on the objeds of bounty . . . 350 18. Republication after the act, passes subsequently acquired estates, 351 19. But cannot pass vjhat the words of the will do not comjmse . . 351 20. No conveyance, S^'c, prevents the will passing the testator's interest at his death 352 21. Will as to the estates comprised in it speaks as if exectited immedi- ately before testator's death, 353 22. Rule ofeqiiity before the act ; opera- tion of will on remaining or new interest 353 24 25 23. Contract for sale after the will a re- vocation 354 Lessee with a contract for the fee, devise passes the fee . . . 354 Leasehold specifically bequeathed, and then fee conveyed to testator, bequest void 35G 26. Effect of an election to purchase under an option, after testator's death, on the devise . . . 358 27. Devise after a contract giving an option to purchase, carries the money to the devisee . . . 358 28. Observations on Emuss v. Smith, 358 29. Sale by testator, a revocation of a devise to trtistees to sell . . 359 30. Four modes of revocation . . 359 31. Will made before the act, wholly re- voked by a deed operating a revo- cation 359 SECTION III. OF THE PROPERTY WHICH MAY BE DISPOSED OF BY WILL, AND OF THE OPEUATION OF RESIDUARY AND GENERAL DEVISES. 1 . What estates may be disposed of by will p. 360 2. Will speaks as if executed imme- diately before death . . . 363 3. Contingent interests, hopes of suc- cession, copyholds without sur- render, after-acquired property, Sf'C.,pass 363 4. Nature of contingencies . . 364 5. Devise by joint tenant . . . 365 6. Quasi tenant in tail cannot devise, 365 7. Effect of ademption on specific le- gacy 365 Testator's intention still to rule: devise of land of which he is now seised 366 9. Devise of mines, &,'C. . . . 366 10. Lapsed and void devises to pass to residuary devisee .... 367 11. Effect of death of a residuary de- visee 367 12. Operation of clause on chorines on real estate 368 General devise includes copyholds, 368 Wilson V. Eden 368 General devise an execution of a general power of appointment, 369 16. Operation of statute on powers to the survivor of several persons, 369 13 14. 15. SECTION IV. WHERE WORDS OF LIMITATION SHALL BE SUPPLIED, AND OF THE CONSTRUCTION OF THE WORDS " DIE WITHOUT ISSUE," &C. ; OF DEVISES TO TRUSTEES, AND OF LAPSE. 1. Devise carries the fee tvithout words of limitation . . . . p. 371 2. To what projierty it extends . 371 3. Devises with words of limitation, 372 4. Operation of statute . , . 372 CONTENTS. xvu 5. " Die without isstie," SfC, to be con- fined to a failure of issue in the lifetime or at the death . . 373 6. Unless a contrary intention appear, 373 7. Construction of the enactment , 374 8. Cases excepted by the proviso : pro- bable operation in various cases of the enactment ..... 374 9. Harris v. Davis 375 10. In re O'Beirne 378 11. Devise to trustees to pass the fee un- less a definite term or an estate of freehold be given ; s. 30 . 379 12. Devise to trustees without words of limitation to pass the fee, ivhere ; 5. 31 379 \7).'\Consiruction of the 30th section, U.J 380 15. AndoftheZlst 381 16. Devises of estates tail not to lapse, 383 17. What issue must be living at testa- tor's death to prevent a lapse, 383 18. Gift to children or other issue not to lapse 384 1 9. What issue must be living to prevent the lapse 384 20. Property in last case belongs to de- ceased legatee 384 21. No lapse although child die before will 384 22. Does not extend to an appointment ivhere the property is settled in default of appointment . . 385 23. Particular devises failing by lapse, to go to residuary devisee . 385 24. Administration of assets not altered by the act 385 CHAPTER VIII. OF TRUSTEES AND MORTGAGEES, 13 & 14 ViCT. C. 60. 9 1. Repeal of former acts: acts unre- pealed p. 387 I. Of lunatic and infant trustees or mortgagees. 2. Power of Lord Chancellor over trust and mortgage estates of lunatic : contingent rights : stock : choses in action 387 3. Like power in regard to infants, 390 4. Infant's money to be paid into Court, 390 II. Of trustees out of jurisdiction or the like. 5. Power of Court where trustee out of jurisdiction or caniiot be found : contingent rights .... 390 6. Or uncertain which of several trus- tees survived 390 7. Or not known ivhether last-known trustee is living or dead . . 391 8. Or trustee has died intestate without an heir, or his heir or devisee shall not be known 391 10 11 Contingent rights in unborn persons may be released .... 391 Power where trustee refuses, 8fc., to convey 392 After decree for sale for debts of a deceased person, every person claiming under him a trustee, 392 22 (Powers under 1 Will. 4, c. 47, not lo 1 repealed: how surplus money to '[go 392 14. Extension of last act by 11 Sf 12 Vict. c. 87 394 15. After decree for a conveyance, 8fC., parties may be declared trustees, 394 16.~i Provisions in regard to stock and 17./ choses in action .... 395 18. Where decree may be made in ab- sence of trustee .... 396 III. As to mortgages. Mortgagee out of possession dead, and money paid to person entitled, cases in which Court may make vesting order, or person may be appointed to convey , . . 396 19 XVUl CONTENTS. 20. How copyholds are to be assured, 397 21. Allegations in order made conclusive evidence 397 22. Provision in 1 Will. 4, e. 60, as to mortgages 398 23. Esclteat, SfC, saved bg 4 8fb Will. 4, c. 23 .• mistake in that act . 398 24. Provision in 1 i^- 2 Vict. c. 69, as to m,ortgages : 2)roviso in act . 399 25. Operation of new act on infant heir of mortgagee 401 26. Mortgagee out of jurisdiction not affected 401 IV. As to escheats of trust estates or mortgages. 27. No escheat or forfeiture to affect es- tate of trustee or mortgagee except as to beneficial interest . . 401 28. Operation of I Sf 2 Vict. c. 69, on mortgages 402 29."] Whether neto act supplies in all 30. \- cases the want of an heir of a 31. J mortgagee 402 32. Old provisions as to escheat, &;c., repealed; new ones prospective only 404 33. 7^8 Vict. c. 79, s. 9, repealed, 404 V. Appointtyient of new trustees. Power in Court to appoint new trus- tees 404 Extended to charities . . . 405 Parties may proceed by claim, 405 (Observations on the policy of the \ act as regards this head, and of L its operation 406 To what extent trustees may be ap- pointed under powers . . 408 New trustees may be appointed after the death of both, although the power contemplates concurrence of survivor 408 So a vacancy may be supplied on the removal of a surviving trustee, 409 34. 35. 36. 37. 38. 39. 40. 41. 42. A continuing trustee may exercise a power given to t/ie survivor . 409 43. Where the power is annexed to the office 409 44. Executors who act may exercise a power to executors . . . 410 45. Common poiver in will does not ap- ply to the death of a trustee in tes- tator's lifetime : sed qu. . 410 46. Several classes of trustees : power confined to some . . . . 411 47. Bankruptcy of trustee an unfitness, 412 48. Marriage articles; by whom trus- tees to be appointed . . . 412 49. Where the trustee may make his devisees, trustees . . . . 412 50. One trustee cannot be appointed, contrary to intent, in the place of tivo 412 51. More than one may be appointed in the place of one ; semble . 412 52. Sandys v. Nugee : D'Almaine v. Anderson accordingly . . 413 53. Ex parte Davis contra, but a later case ace 414 54. Court of Chancery would appoint a larger number of trustees if ^Jro- per 415 55. Court in appointing new trustees cannot give them a power to ap- point their successors . . 415 50. Poiver in a party not disregarded by Court 416 VI. As to the form of procedure. 57. Who may apply under the act, 416 58. Powers of the Masters and of the Court 417 59. Order may be postponed till right declared in suit . . . . 417 60. Powers to Lord Chancellor and Court of Chancery of Ireland, 417 XIX INDEX TO CASES CITED. ADAMS V. Barry Allan's case . . Allen's case . . Amiss's case Andievvs v. Turner Anson v. Lee Arkwright v. Gell Arnald v. Arnald Ashmore's case . Attorney-General v, Flint V. Persse Austin V. Daley , Ayling's case Ayres i\ Ayres B, Bacon's case Bailey's case Bailey v. Appleyard . Baker v. Hetton . Baldwin's case Bampton v. Birchall Bankes v. Le Despencer Barber ii. Shore . Barke's case Barrett v. Birmingham Batchelor v. Middleton Batten's or Bauly's case Bayley v. Mansell Bayliss v. Sayer . Beach v. Clarke . Beadle's case Beadon's case Beaseley v. Clarke Beckford v. Wade Bennett v. Bernard • V. Cooper . Berrington v. Evans, 99, Bevant v. Pope . BeviJl's case , Bibb V. Thomas . Biederman v. Seymour Bigge V. Bensley Birch V. Cropper Birmingham v. Burke Billing V. Webb Page. 126, 146 344 n. • 336 . 33G 303 n. . 353 1G7, 168 . 359 334, 330 . 103 35, 101 . 371 . 339 . 314 339 332 168, 177 113 340 145 206 126 340 130, 132 111 318 416 332 339 318 325 179 1, 7 121 125 119, 121, 122 255 4 344 270 376 n. 415 121 395 17 101 Page. Blackwell, in re . . 393 Blair v. Nugent . 105, 107, 130, 131 Blair's case . 332 Blake's case . . , 8 Blake v. Foster . 8 Blake v. Knight 333 Blewitt, in re 208 Bond V. Hopkins 9 Boraston's case 381 Bowles V. Stewart 9 V. Weeks 416 Boyd V. Higginson 101 Bradley's case 340 Branch v. Browne 393 Brasier v. Hudson 412 Brenchley v. Still . 3: $2, 339, 343 Bright V. Walker, 167, 1! 2,174, 176 British Museum v. White 334 Brocklehurst v. Jessop . 127 Brook V. Smith . 392 Brooke or Brooks v. Kent 303 n._347 Brouncker v. Bagot 376 n Brown v. Brown . 416 V. Whiteway 366 Browne i\ Bishop of Cork . 8, 36, 111 Bryce's case 332 Bullock's case 312 Burgoyne v. Showier . 338, 341 Burrell ii. Lord Egremont 2 ), 125 Burne t\ Robinson 102, 133 Burroughs v. M'Creight . 66, 103 Burtonshaw v. Gilbert 344 n Byfield's case . . 377 n. Byrd's case . 332 C. Cafe V. Bent 409 Campbell v. Sandford . 106 V. Sands 372 Carr v. Foster 168 Carroll v. Darcy . lo' 1, 122 Carter v. Barnadiston . 380 Caruthers v. Caruthers 258 Carver's case 312 Casement v. Fulton 337 Casson v. Dade . 337 Cater v. Croydon Can. Comj ). 100 Cattell V. Coirall 206 b 2 XX INDEX TO CASES CITED. Page. Page. Chadwick ?". Croadwood . 64 Dillon V. Leman . 2 Chamney's case . . 338 V. Cruise 106, 133 Chaplyn's case . 313 Doe V. Angell 32 , 55,64,70 Chapman v. Tennant . . 392 V. Barnard . . 58 Charles v. Andrews . 257 V. Bartle . 308 Cheese v. Cheese . 393 V. Beckett . 30 , 62, 65, 70 Cholmondeley V. Clinton' 7 V. Benham or Bill ett . . 61 Christian's case . . .336 V. Bingham 40, 48 Christian v. Devereux . 126 V. Bird . 308 Church V. Edwards . 202 V. Blackburn . 269 Clarke's case . 3:52 V. Bold . 57 Clay V. Clay . 5,6 V. Bramston 71, 79, 87 V. Shackeray or Thackrah, 107, V. Carter 55, 58, 59 168, 178, 179 V. Danvers . 8 Clayton v. Corby 167, 175 V. Edgar . 80 Cloncurry's (Lord) case . 68 V. EdUn . 382 Cloves V. Awdry . 369 V. Edmonds 36, 42, 68 Cole V. Scott . 366 V. Ellis 377 n. Cole V. Sewell . . 285 V. Ewart . 373 Coleman's case . . 338 V. Field . 382 CoUiiigwood V. Pace . . 272 V. Gopsall or God sill .' . 65 Commissioners of Char. Don. v. V. Groves 26, 57, 60 Wybrants . . 3 5, 103, 104 V. Harris 344, 382 Cooper ?'. Bockett . .332 V. Harbrow . 80 V. France . 282 V. Hinde . 61 Corbet v. Corbet • 258 V. Horrocks . 66 Corbett v. Bai ker 8 V. .lesson 3 Cordal's case . 380 V. Jones (T. Rep.) 2 ('order's case . 318 V. Jones (Jur.) . 290 Corneby r. Gibbons . 313 V. Ketc 350, 383 Costello V. Burke . 146 V. Lea . 331 Cotterell v. Button . 2, 3 V. Lightfoot . 25 Cotton's case 318, 326 r. Liversedge . 50 Couch V. Stratton . 257 V. Ludlam . . 308 Creagh v. Blood . .49n. V. Manifold . . . 337 Cresswell v. Byron . 257 • V. Martyn . . 382 Croker v. Lord Hertford . 340 V. Millett . 77 Crosbie v. M'Doual . 349 V. Moore 23, 57, 60 V. Sugrue . 48, 64 V. Moulsdale 48, 290 Culley V. Taylerson 66, 70, 81 V. Nepean . 3,51 Culsha V. Cheese . 367 V. NichoUs . . 381 Cuppage's case . . 318 I'. Oxenham . 42 47, 63, 64 Curtis's case . 328 V. Page ■ V. Parkes 56, 57 . 344 D. V. Phillips . V. Robinson 22, 36 . 372 D'AImaine i;. Anderson , . 413 V. Rock 55, 59 "^ ''^'? Darby's case . 339 V. Scarborough, E arl of . 191 Davis's case . 313 V. Simpson . 380, 382 Davis, ex parte . . 414 ■ V. Sumner , . 61 V. Thomas . . 108 V. Thompson 55 56, 70, 78 Davy V. Smith . 337 V. TomkiQSon , 364 Dawnay's case . 319 V. Turner 56, 59 Dearman v. Wyche . 117 V. Walbark . . 382 De Beauvoir v. Ovyen, 34, 68 , 74, 136 n. V. Walker . 351, 352 Denys r. Shuckburgh . 64, 07, 108 V. Willan , 382 Devey v. Peace . . 415 V. Williams 24 27, 78, 79 Dew V. Clarke . 308 V. VVoodrofTe 25, 66 Dewdney, ex parte 6 Donn V. Penny 376 n. Dickins' case . 339 Dormer v. I'arkUurst . 9 INDEX TO CASES CITED. XXI Page. Drant v. Vause .... 358 Drought V. Jones , . 141, 146 Drury v. Drury, or Earl of Bucks V. Drury .... 257, 259 Dublin, Archbishop, v. LordTrim- leston . . . . .148 Dundas v. Blake . . . 105, 107 Du Vlgier v. Lee, 117, 134, 141 n., 143 Egremont, Lord, v. Hamilton ". 6 Eilbeck V. Wood . . .345 Ellis's case ..... 338 Veu^iJ^^^"^ w. Eason . . . 37G n. Ely, Dean and Chapter of, v. Cash, 17, 32, 152, 156 V. Bliss . . . 154, 158 Emussw. Smith, 352, 354, 357, 358, 366, 385 England r. Wall . . . 167, 179 Estcourt V, Estcourt . . . 257 Farran v. Ottiwell , . 118 V. Beresford . 119, 146 Farrar v. Lord Wintertc n 354 Farrell v. Gleeson . 119, 146 Faulds V. Jackson , , 334 Faulkner v. Daniel , , 127 Fellowes v. Clay . . 153 Ferguson v. Livingstone . 145 Ferraris, Countess of V. Lord Hertford . 310, 339 340 Fish V. Klein , 308 Flight V. Thomas . . , 172 Forster v. Thompson . 101 Fortescue v. M'Kone , 146. Forth V. Chapman 375 n. Foulds V. Jackson . 336 Fourdrin v. Gowdey . 308 Foxon V. Foxon - i 244 Francis v. Grover . 30 107 Fulton V. Creagh . 71 Fursdon v. Clegg • 68 G. Gale V. Gale , 365 Garrard v. Tuck . 38, 55 288 Garthshore v Chalie 257 Gathorne, in re '. 399 Gaze V. Gaze 333 Gervoyes's case . 256 Gibson v. Hale 363 Glover's case 332 Glover v. Monckton . 382 Goddard, in re 398 Goldie's case . ! 310 330 Goodright v. Jones ... 8 Goodtitle v. Jones ... 6 V. Whitby . . . .381 Gore's case . . . . .313 Gough V. Bult . . 105, 107, 135 Gove V. Gawen .... 339 Grafton, Duke of, v. Lon. & Bir. Rail. Co 183, 196 Grant v. Ellis . 32, 34, 44, 45, 64 Grant ». Yea . . . . 208 Granville, Earl, v. M'Neile . . 410 Graydon, in re . . 207, 209, 253 Green v, Holden .... 400 Greenwood v. Wakeford . . 416 Gregson v. Hindley ... 29 Grenfell v. Girdlestone . . 7, 70 Griffiths V. Gale . . . .385 Gunning's case .... 313 H. ' Hall V. Swift . . . .169 Hally's case .... 339 Harmood v, Oglander . . . 5, 6 Harper, in re . . . . 242 Harris v. Davis . . . 366, 378 Harrison's case . . . 333, 334 Harrison v. Borwell . . . 145 V. Duignan . . 101,107,132 V. Elvin .... 336 V. HoUins '. . . . 8 Hasell, -ex parte, 66, 70, 76, 78, 101. 108 Hart V. Bateman . Hartridge v. Warwick . Hawker v. Hawker Haynes v. Hill Heardson v. Williamson Hearne's case Heenan v. Bertry . Helling's case Henning v. Archer Henry v. Smith . 106, 12 Herey v. Ballard . Heron, in re Hester's case Hill's case . . 309 ». Stawell . Hoare v. Pick Hobbs V. Knight Hobby V. Allen . Hodge V. Churchyard . Hodges V. Croydon Canal pany . . . Holbech v. Holbech Holder V. Darbin Holdernesse, Countess of, v. quis of Carmarthen . Ilolford V. Hankinson . Holiaud V. Clarke . 105 169, 179 . 382 . 340 . 382 . 322 . 105 . 331 392, 394 4, 134, 135 5 257 318 n., 322, 339 . 132 . 145 344, 345 . 240 . 107 Com- 143, 158 . 320 . 416 Mar- . 371 177, 178 54, 130 XXll INDEX TO CASES CITED. Page. Holland's case . . . 318,31!} Holmes v. Newlands . . 35, 70 Hood V. Hall .... 395 Hooley v. Jones .... 336 Houston V. Russell , . . 382 Hoveaden v. Lord Annesley . 5, 6, 8, 9 Howard v. Rhodes . . . 416 Howcutt V. Bonser . . 70 n. Howell's case . 312, 319, 327, 329 n. Hudson V. Parker . . 333, 337 Hughes V. Kelly . . . 107, 143 Hulme V. Hulme . . , 412 Humfrey v. Gery 136 n., 144, 145 n. Hunt V. Bateman . . 104, 107 V. Bourne .... 2 Hunter v. Nockolds . . . 144 Hutchins v. O' Sullivan . .121 Hyde tJ. Dallaway . . 29,111 ■ V. Johnson . , , . 70 n I. Ibbetson's case .... 348 Ilott V. Genge .... 333 Incorporated Society v. Richards, 35, 09, 82 Ingoldby v. Ingoldby . . . 339 Jackson v. Innes . James v. Roberts James i\ Salter Jenner v. Tracy . Jervis V. Tayleur . Johnson v. Johnson Jones's case . Jones, ex parte V. Ham V. Jones V. Price Jordan i\ Savage . Joyce V. Joyce Jumpson V. Pitcher K. Kealy v. Bodkin . Keating v. Brooks Keene v. Deardon Keigivin v. Keigivin Kempe v. Gibbon Keogh V, Waring Kilcher's case King V. Leach Kinloch v. Nevile Kiubold V. Roadknight Kirby's case . , Knight V. Lord Waterford Kuoi- V. Kelly . , . 199 344 n. 20, 85, 133 6 . 233 . 384 . 313 . 63 . 393 96, 244 172, 177 . 257 . 416 . 88 119, 134 . 312 5 . 333 . 158 . 146 . 336 . 395 . 178 . 359 . 313 . 154 . 106 Page. L. Lancaster v. Evors ... 99 Langford, Lord, v. Little . . 360 Law V. Bagwell . . . .102 Lawes v. Bennett .... 358 Lawson v. Langley . . 172, 174 Leeds, Duke of, v. Lord Amherst 99 Levock's case . . . . .347 Lewis V. Thomas .... 69 Llewellyn v. Mackworth . . 5, 9 Lloyd V. Lloyd .... 255 Lockington's case . . . 184 Longchamp v. Fish . .331, 332 Lucas V. De unison . . .112 Lyster v. Mahony . . .261 Lytton V. Lytton .... 8 M. Machell w. Clarke . . . 215 M'Carthy ?;. Daunt . . . 125 V. O'Brien .... 130 M'Donnell v. M'Kinty . 30, 31 Mahon v. Davoren . . .128 Major V. lies . . . . 349 Mansfield's case .... 256 Mansfield v. Dugard . . .381 Marston v. Roe . . . .342 Martin's case . . 313, 336, 341 Matthews v. Venables . . . 345 Mead's case ..... 336 Medlicott V. O'Donel ... 6 Meinertzhagen v. Davis . 414, 415 Mellish V. Brooks . . 17, 134 Middleton v. Reay . . .416 Milfield, in re . . . . 395 Milligan's case . . . 309 n. Minty's case . . . 318,322 Monmouthshire Canal Company v. Harford . . . . 167, 178 Moor V. Raisbeck . . 354, 359 Moore v. King .... 336 Morris?;. Ellis . . . .101 V. Preston . . , .409 Mower w.Orr . . . 351,384 Mustow's case .... 339 N. Neate v. Pickard .... 342 Nepean v. Doe . . .3, 70, 81 Newman, in re . . . . 208 Newton v. Clarke . . . 337 Noel i\ Jevon .... 255 Norwich Charities, in re . . 416 O. O'Bierne, in re . . . , 379 Ockleston v. Heap . . 412, 416 Oglunder v, Oglander . . . 416 INDEX TO CASES CITED. XXIU O'Hara r. Creagh O' Kelly r. Bodkin, Oldham ?'. Pickering Olding's case Onions v. Tyrer . Onley v. Gardiner Orrell v. Maddox . O'Shee v. Warrens O'Sullivan v. M'Swiney Owen V. De Beauvoir . P. Page. . lOG 119, 120, 121, 134 . 372 344 n. 332 345 167 . 128 . 70 17, 73, 96 Paget V. Foley , . 133, 158 n. Palmer t). Alego . . . .118 Parker w. Mitchell . . .173 Parslow's case . . . ,313 Payne, ex parte .... 398 Payne t». Shedden . . .173 Payne v. Trappes . . . 349 Pearson v. Pulley ... 6 Pemberton v. Pemberton . . 344 Pennant v. Kingscote . . . 339 Penny v. Pretor . . . 206, 393 Perkins v. Micklethwaite . . 350 Phelps' case .... 340 Phillipo V. Munnings . , . 104 Philpot's case .... 333 Pickering v. Lord Stamford . . 257 Piercy's case , . . .338 Piggott V. Jefferson . . . 127 Pimm V. Goodwin ... 8 Playne v. Scriven . . . 336 Plunket V. Lord Burlington . 145 Pomfret, Lord, v. Lord Windsor . 5 Pope V. Garland . . . . 54 n, Portsmouth, Lord, v. Lord Effing- ham ..... 5 Power V. Sheil .... 259 Prendergast's case . . 309 n. Prendergast v. Eyre . . . 398 Prentice's case .... 318 Price V. Cai-ver . . . 393 n. V. Copner .... 8 Prior V. Horniblow . . . 126 Purcell V. Blennerhassett . . 101 Pye w. Mumford . . 175,179,180 Q. Queen, The, v. Chorley B. RadcHffe v. Eccles Raffety v. King Ravald v. Russell Rawlins' case Rawson v. Moore Richards v. Fry . V . 174 130 . 333 . 130 172, 173 Ripley v. Waterworth Rippin's case Roch V. Callea Roche, in re Roe V. Jones V. Rowlston Roper V. Halifax ?'. Radcliffe Rowe's case Ryan v. Carnbie Ryder's case Page. . 372 . 347 104, 134, 145 409, 412 . 364 3 191, 192 . 345 . 328 , 118 335 n. 354 313 St. John, Lord, v. Boughton 129, 130 Salkeld v. Johnston . . 153, 157 Salter v. Cavanagh . . .103 Salters' Company i>. Jay . .172 Sampayo v. Gould . . .416 Sandys w, Nugee . . . .413 Saumarez case .... 341 Saunders v. Lord Annesley . Saunders v. Cramer Scarlett's case .... Scarborough, Lord, v. Doe, d. Savile 193 Scott V. Knox . , . . 5, 7 V. Nixon . . .11, 68, 82 Searle y. Colt . . . . 30 ' Seymour's case .... 344 Shadwell's case .... 325 Sharp V. Sharp . . . 409, 412 Sheil V. Incorporated Society 32, 153 Sheldon v. Sheldon . . . 339 Sheppard v. Duke . . 106, 126 Shires %\ Glasscock . . .337 Shirley, Ann, ex parte . . 244 Sibbering v. Lord Balcarras . .109 Simmonds' case .... 330 Simmons v. Rudall . . 35, 341 Simpson v. Gutteridge . . . 256 Sims V. Thomas . . . .140 Skinner v. Ogle .... 351 Slater v. Dangerfield . . .195 Smartt's case .... 339 Smee v. Bryer , . 314, 318, 326 Smith's case .... 340,>///» Smith V. Harris .... 332 V. King .... 5 1). Poole . . . .130 V. Smith . . . .258 Smythe, in re . . . . 238 Suell V. Silcock .... 9^ Southwell ». Ward . . , 416 Spunner v. Walsh . . . 400 Stackhouse i>. Barnston . .6,15 Stackpoole v. Stackpoole . 35, 87 Stafford, Earl of, v. Buckley . 371 Stamford, Lord, v. Dunbar . 153, 177 Standley's case .... 318 •U.J, XXIV INDEX TO CASES CITED. Stanley, in re Stark ie, in re Stead I'. Berier Stephens v. Tafrell Sterndale v. Hankinson Stow's case . Straclian v. Thomas Strickland v>. Strickland Summers' case Swindin's case Taylor v. Horde . Thomas v. Gwynne Thompson's case . Thompson v. Simpson Thomson, in re V. Hempenstall Thynne, Lord J., v. Stanhop Tickle V. Brown . Tinny r. Tinny Titley v. Woolstcnholme Toft V. Stephenson Tolson V. Kaye Tomkins v. Laurence Topham v. Topham Totton's case Townley v. Bedwell V. Watson . Townsend i\ Townsend Tozer's case Tribe v. Tribe Trimmer v. Jackson Trinder's case Tristram v. Harte Trulock V. Robey Tuckey v. Hawkins Tuthiil V. Rogers . Tweddell v. Tweddell Page. 398, 399 . 209 . 350 . 346 119-123 . 311 38 (a), 142 , 270 . 334 . 341 102, ipe 167, U. Utterton v. Robins 4 . 395 309 n. 107, 108 . 399 . 349 . 344 177,178 . 257 . 412 103, 126 2 . 61 . 318 , 184 . 358 . 348 5 . 336 . 337 . 334 . 333 . 130 . 114 . 126 11, 12 340 Vickers ». Oliver .... 99 Vincent v. Willington . . .127 r. Going . . . 137,141 Vizard v. Longdale, or Vizod v. Londeu 257 W. Wainewright, in re Wakeling's case . Walker v. Aston . Walsh V. Gladstone Ward, in re V. Arch Warden's case Warter v. Hutchinson Waterford, Lord, v. Knight Watson V. Birch . . 120, Walters v. Lidwill Welch's case Welcome v. Upton Welsh, in re V. Welsh Wetherell v. Bellwood V. Weighell . White's case . . 319, White V. Ewer V. Hillacre . V. Parker V. White Whittle's case Whitton, ex parte Wickham v. Hawker Wild V. Reynolds Willesford's case . Williams v. Chitty V. Jones V. Welch Willis V. Lowe Wilson, in re V. Eden Winchelsea v. Wauchopi Winter v. Rudge V. Winter . . 303 Withington v. Withington Wollaston's case . Wood, in re . Wood's case Woodington's case Wright V. Williams Wrighton's case . Wrixon v. Vize, 24, 70, 99, 101, Wynne v. Styan . Young V. Lord Waterpark ton. . V, WUton^ • V. ULrx. . 208 . 313 . 393 . 411 396 n. . 105 . 333 . 381 . 154 122, 124 118, 119 . 318 169, 179 . 415 . 146 . 158 . 158 327, 336 6 . 128 . 409 . 416 318, 323 . 399 . 179 . 351 . 339 . 257 . 345 126, 128 . 314 . 399 . 308 . 337 . 411 351, 384 . 412 . 340 208, 209 . 319 . 313 172, 173 . 330 111,118 29, 111 41, 105 . 105 {a) Add the name of the case to the reference (u) in p. 138, and to {x) in p. 140. [ XXV ] ADDENDA. In p. 39-2, pi. 10, refer to Rowley v. Adams, 3 Mac. & Gor. 130; as to a sufficient refusal by a married woman to surrender a copy- hold. In p. 397, pi. 19, refer to In re Meyrlck's Estate, 9 Hare, 116; an administrator of a mortgagee who died intestate, and his heir is unknown, cannot obtain an order vesting the estate in him, subject to the equity of redemption. In p. 404, pi. 34, refer to In re Hodson's Settlement, 9 Hare, 118; section 32 does not enable the Court to discharge a trustee willing to remain, nor can the Court act where there is a power to appoint new trustees, although it may have been intended to corruptly exercise it; see p. 408; but if one trustee is a lunatic, although there is a power in the settlement, the Court will act. In re Davies, 3 Mac. & Gor. 278. In p. 390, pi. 5, and in p. 405, pi. 34, refer to hi re Watts's Settlement, 9 Hare 106; as to a vesting order severing a joint- tenancy; and refer to the same case in p. 412, pi. 47 : that bank- ruptcy, &c. does not create an incapacity to act. In p. 415, pi. 55, add a reference to Newman v. Warner, 1 Sim. N. S. 457 ; trustees appointed by the Court in lieu of trus- tees in a settlement, cannot exercise a power of sale in the settle- ment to the trustees and the survivor of them, his executors and administrators. In p. 417, pi. 60, refer to In re Davies, 3 Mac. & Gor. 278 j Lord Chancellor of Great Britain no jurisdiction over lands in Ireland. In p. 417, pi. 58, refer to In re Were, 3 Mac. & Gor. 233 ; in- quiry directed before the Master. AN ESSAY ON THE NEW LAWS OF REAL PROPERTY. CHAPTER I. OF THE TITLE BY NON-CLAIM. SECTION I. OF THE BAR UNDER THE OLD LAW. Old statutes barred the remedy only. Savings in 32 //. 8. And in 21 Jac, 1. Presumption of death. Disability of coparcener. Sixty years^ possession not a title. 10. Ride in equity as to trusts. ' [As to an equity of redemption. 17. In cases of fraud, 20. Disabilities in equity. 21. Title by fion-claim. 1. It is proposed first to consider generally the operation of the ohl statutes of limitations, and then to ])roceed to an examination of the provisions of the new statute of limitations ; and first of the law as it stood before the late statute. 2. The statutes of limitations operated by way of bar to the remedy, and not, like the statutes of fines, as a bar to the right {a). Therefore, although a person (a) See Beckford v. Wade, 17 Ves. 87. Z SUCCESSIVE DISABILITIES. \vas barred of one remedy, yet lie could pursue any other remedy Mhich might afterwards accrue to him. Thus, where a tenant in tail discontinued for three lives, and the issue in tail was barred of his formedon by the 21 Jac. 1. (/») ; afterwards by the death of the three tenants for life, a right of entry accrued to the issue, who entered, and his entry was held lawful (c). '3. It has frequently been thought that the rights of infants, femes covert, persons in prison, and beyond sea, are saved by the act of 32 Hen. 8. {d) ; but on examination it will appear, that the savings extended only to persons who laboured under any of those dis- abilities at the time the statute was made (e). 4. The saving clause in the act of James only extends to the persons on whom the right first des- cends ; and therefore, when the time once began to run, nothing could stop it(/). So that on the death of a person in whose life the time first began to run, his heir must have entered within the residue of the ten years, although he laboured under a disability at the death of his ancestor; and issue in tail were barred like heirs in fee-simple {g). 5. In the case of a fine, it was formerly thought, that if a person died under a disability, his heir was excepted out of the statute of fines, by the proviso (Jl) ; but the contrary w^as determined by a modern case (/). In the statute of James, the legislature being aware of {h) Ch. 16. {g) S.C.Tolson«?.Kaye,3Brod. (c) Huntv. Bourne, Lutw. 781; & Bing. 217; C Mann. & Gran. 2 Salk. 422; Com. 124; 1 Bro. 589. P. C. 53. {h) See Cruise on Fines, 258, {d) Ch. 2. and the cases there cited . (e) See Bro. Reading, p. GO. {i) Dilloni). Leman, 2H.Black. (/) Doe V. Jones, 4 T. Rep. 800 ; 584. Cotterell v. Dutton, 4 Taunt. 826. SIXTY YEARS POSSESSIOiV NOT A TITLE. 3 this point, expressly provided for the death of the per- son to whom the first right should descend ; and, therefore, where a person to whom the right first descended, died under a disability, his heir must have entered within ten years after his death {k). G. It seems that where no account can be given of a person within the exceptions in tlie act, he will, at the expiration of seven years from the last account of him (l\ be ])resumed to be dead : and this rule applies equally to the new act. But the presumption only is that the person is dead ; not that he died at the begin- ning or the end of any particular period during those seven years, and therefore if it is important to any one to establish the precise time of such person's death, he must do it by evidence of some sort to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was last heard of (m). 7. The disability of one coparcener would not pre- serve the title of the other, who must have entered within twenty years after the title accrued, although during the whole time her coparcener laboured under a disability {71). 8. It was generally conceived, that a possession for sixty years created a good title against all the world. Thus Judge Jenkins {0) lays it down, without qualifi- cation, " that a peaceable possession for sixty years makes a right; for 21 Jac. 1, c. 16, takes away the entry and assize ; 32 Hen. 8, takes away the writ of {k) See Jenkins, 4 Cent. pi. 97; ('«) Doe v. Nepean, 6 Bavn. & Doe V. Jesson, 6 East, 80 ; Cotte- Adol. 8G ; Nepean v. Doe, 2 Mees. rell V. Button, 4 Taunt. 82(), and & Wels. 912 ; see Sugd. Cone, observations in 10th edition of View, 307. Purch. («) Roe v. Rowlston, 2 Taunt. {I) Doe i'. Jesson, ??/->(! s;y:».; Doe Ml. V. Nepean, 5 Barn. & Adol. 86. (o) 1 Cent. pi. 49. A 2 4 RULE IN EQUITY AS TO TRUSTS. right and tlie fornicdon." 80 Mr. Justice Blackstono says (/;), '• that the possession of lands in fee-sinij)le and uninterruptedly for sixty years, is at present a suf- ficient title against all the world, and cannot be im- peached by any dormant claim whatsoever." But it was possible that an estate might be enjoyed adversely for hundreds of years, and yet at last be recovered by a remainder-man. For instance, suppose an estate to be limited to one in tail, with remainder over to an- other in fee, and the tenant in tail to be barred of his remedy by the statutes of limitation, it is evident that, as his cMale subsisted, the remainder-man' s right of entry could not take place until the failure of issue of the tenant in tail, which might not happen for an im- mense number of years. 9. After ]>assing the act of 32 Henry 8, and before that of the 21 Jac. I, although a man had been out of possession of land for sixty years, yet if his entry was not tolled, he might enter and bring any action of his own possession () 3 Com. 196 ; see Taylor r, (;•) Wood's Inst. 557; and Horde, 1 Bun-. 60 ; 5 Bro. P. C. Christian's note to 3 Black. Com. 247 ; Cowper, 689. 19G. (y) See Bevill'a case, 4 Co. 11 b. RULE IN EQUITY AS TO TRUSTS. 5 qiience without such a trust, and so the act woukl never take place. 1 ] . Therefore, where a cestui que triisl and his trus- tee were both out of possession for the time limited, the party in possession had a good bar against both {s). 12. Although the statute could not, as between the trustee and cestui que trust, operate as a bar to the latter, yet the trustee might, in some cases, be barred by the possession of the cestui que trust, or those claim- ing under him (t). A cestui que trust is as a tenant at will to the trustee, and his possession is the posses- sion of the trustee (w) ; and therefore, unless under very particular cirsumstances, time could not operate as a bar (.r). Where a cestui que tru^t sold or devised the estate, and the vendee or devisee obtained posses- sion of the title-deeds, and entered and did no act recognising the trustee's title, there was great reason to contend that this was a disseisin of the trustee, and, consequently, that the statute would operate from the time of such entry. This was a point which daily occurred in practice ; but it rarely happened that a purchaser could be advised to dispense with the conveyance of a legal estate, where the defect would appear on the abstract when he sold. And where (s) Per Lord Hardwicke, iu (t) Lord Portsmouth v. Lord Llewellyn V, Mackworth, Barnard. Effingham, 1 Ves. 430; Harmood Rep. Cha. 445 ; 15 Vin. Abr. 125, v. Oglander, G Ves. 199 ; Ves. n. to pi. 1 ; and see Townsend v. lOG. See 2 Mer. 860. Townsend, 1 Bro. C. C. 550; Clay V. Clay, 3 Bro. C. C. (339, n. ; ^''■> ^ ^'"*'- '^-"^' Ambl. 045 ; Hercy v. Ballard, 4 (x) 3 Mod. 149 ; Earl of Pom- Bro. C. C. 469 ; Harmood «. Og- fret v. Lord Windsor, 2 Ves. lander, 6 Ves. 199 ; 8 Ves. lOG ; 472 ; Keene v. Deardon, 8 East, Hovenden v. Lord Annesley, 2 248 ; Smith v. King, IG East, Scho. & Lef. 629 ; Scott v. Knox, 283. 1 Long. & Towns. 881. a3 6 AS TO AN EQUITY OF REDEMPTION. there had been any dealing on the legal estate, and it had been recently noticed in the title-deeds as a subsisting interest, it was clear that a purchaser was bound to consider it as such (?/). 13. The statutes of limitations certainly could not operate as between cestuis que trust; but it seems that equity, in analogy to the statute, would hold time a bar {^z) ; and indeed that equitable rights in general would, by the like analogy, be affected by time in the same manner as legal estates {a). 14. This is exemplitied, in some degree, by the rules respecting an equity of redemption, which is a mere creature of the Court {b). 15. In Clay v. Clay (c), Lord Camden laid down this doctrine very clearly. He said, " as often as Par- liament has limited the time of actions and remedies, to a certain period, in legal proceedings, the Court of Chancery adopted that rule, and applied it to similar cases in equity. For when the Legislature has fixed the time at law, it would have been preposterous for equity (which by its own proper authority always maintained a limitation) to countenance laches beyond the period that law had been confined to by Parliament. And therefore, in all cases where the legal right has been barred b}^ Parliament, the equitable right to the same thing- has been concluded by the same bar." (^) Goodtitle V. Jones, 7 Term {h) White v. Ewer, 2 Ventr, Rep. 47. 340 ; Pearson v. Pulley, 1 Cha. Ca. {z) Harmood v. Oglander, %M 109 ; Jenner v. Tracey ; Belch, v. sujp. Harvey, 3 P. Wms. 287, n. Ap- (a) 1 Atk. 476 ; Stackhouse v. pendix, No. 13, to Purch. Barnstoii, 10 Ves. 4GG ; Ilovenden (c) 3 Bro. C. C. G39, n,; Amhl. V. Lord Annesley, 2 Scho. ^' Lei', 045 ; and see U.v jxn-fe Dewdney, 030 ; Lord Egremont r. Hamilton, lo Ves. 490 ; Medlicott v. O'Donel, 1 Ball & Beat. 516. 1 Ball & Beat. 150. AS TO TRUSTS AND FRAUDS. / 16. In Beckford v. Wade (d), Sir William Grant, in delivering- judgment, said, that it is certainly true that no time bars a direct trust as between cestui qtte trust and trustee ; but if it was meant to be asserted that a court of equity allows a man to make out a case of constructive trust, at any distance of time after the facts and circumstances happened out of which it arises, he was not aware that there was any ground for a doctrine so fatal to the security of property as that would be ; so far from it, that not only in circum- stances where the length of time would render it extremely difficult to ascertain the true state of the fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would originally have been given upon the ground of constructive trust, it is refused to the party who, after long acquiescence, comes into a court of equity to seek that relief. 17. And it seems that even in cases of fraud, where the facts constituting the fraud were known, where there was no subsisting trust or continuing influence, the same principle would apply (e). 18. It was held by Sir William Grant, that whilst the equity of redemption subsisted, the question to whom it belonged must remain open ; and therefore mere possession without title would not give any person a right to redeem (/). The right belonged to him wdio showed a title, although he had been out of possession upwards of twenty years. But Sir Thomas Plumer decided otherwise, and his decision was affirmed in the (c?) 17 Ves. 97. See 2 Ilavgr. (/) Cholmondeley v. Clinton, 2 Jur. Exc. p. 394 ; Scott i\ Knox, Mer. 173 ; Grenfell v. Girdlestone, 4 Ir. Eq. Rep. 397. 2 You. & Coll. (562. (e) 1 Ball & Beat. 166. a4 8 DISABILITIES IN EQUITY. House of Lords (g). And it seems that unless in the case of disability, twenty years' adverse possession was a bar to relief in equity (h). 19. But if a jnortgagce purchased an interest in the equity of redemption — for example, the estate of the tenant for life — he became liable to perform the obligations of the seller, and was therefore bound to keep down the interest, and consequently the redemp- tion would thus be kept open («). 20. The legal provisions were so strictly adhered to, that persons labouring under any of the disabilities specified in the statute of limitations, were allowed the same time as they would have been entitled to in the case of a legal claim (k). 2 1 . These observations may be closed by observing, that few cases occurred in which a title depending on the statute of limitations could be recommended. The bare receipt of rent was no ouster, for it is a contra- diction in terms, that a man by wrong should have my right (/) ; so the non-payment of rent was no ouster, and therefore the operation of the statute was fre- quently prevented by the existence of a lease granted (ff) 2 Jac. & Walk. 1, 189, n. ; Lord Manners, in Ireland. See 2 Tweddell v. Tweddcll, Turn. & Mer. 240 ; Blake v. Foster, 2 Ball Rus9. n, 12. & Beat. 5G5 ; 4 Bligh, O. S. 133, (h) See Price r. Copner, 1 Sim. 140 ; Beat. 4(31 ; Harrison v. Hol- & Stu. 347. lins, 1 Sim. & Stu. 471 ; Raffety (*■) See Corbett v. Barker, 1 v. King, 1 Kee. 601. Anst. 138; 3 Anst. 755; Raffety (1) Gilb. Ten. 97. Goodright V. King, 1 Kee. GOl ; Browne v. v. Jones, Cruise on Fines, 3d edit. Bishop of Cork, 1 Dru. cS: Wal. 295 ; Doe v. Danvers, 7 East, 299; 700. and see Orrell v, Maddox, Run- (l) Lytton V. Lytton, 2 Bro. C. nington's Eject. 458 ; Saunders v. C. 441. Two cases on this point Lord Annesley, 2 Scho. & Jjef. 73. were for a long time depending, Consider Ilovendeui'. Lord Annes- Pimm V. Goodwin, before Lord ley, 2 Scho. & Lef. G23. Eldon, and Blake's case before THE NEW LAW. 9 by the person whose interest, or the interest of persons claiming- nnder him, was sought to be barred. So {tn) there might be a case where the circumstance of con- cealing a deed would prevent the statute from barring ; but then it must have been a voluntary and fraudulent detaining ; for to say that merely having an old deed in one's possession should deprive a man of the benefit of the act, w^ould have been going too far, and would be a harsh construction of a statute made for the quieting of possessions. (>») Per Lord Ilardwicke in Snell v. Silcock, 5 Ves. 4(59 ; Llewllyii V. Mackworth, Barnard. Bowles v. Stewart, 1 Sclio. & Lef. Rep. Cha. 445 ; 16 Vin. ALr. 120, 209 ; Bond v. Hopkins, ib. 413 ; pi. 8 ; 2 Eq. Ca. Abr. 579, pi. 9 ; Hovenden v. Lord Annesley, 2 Dormer v. Parkhurst, 3 Atk. 124 ; Scho. & Lef. 607. SECTION II. OF THE NEW law: 3 & 4 w. 4, c. 27. — what the act has ABOLISHED. 2. All real and mixed actions, except dower, quare impe- dit, and ejectment. 3. Savings. 4. Descent cast, discontinuance, cSc abolished. 5. Continual claim also. 0. Right extinguished. 7. Time runs from what pe- riod. 1. Thus the law stood before the late important Act of 8 & 4 Will. 4, c 27. It is seldom possible to understand a law which repeals a former one and sub- stitutes new provisions, unless we have a competent knowledge of the law repealed. It has, therefore, in- 10 SAVINGS. dependently of the savings in the act, been thought useful to retain the foregoing short account of the old law as a fit introduction to the new one. Under this head we are to consider, 1. What the act has abolished. 2. The new period of non-claim, and when the time first accrues. 3. The savings from disabilities. 4. Of adverse possession. 5. Where the bar of tenant in tail extends to those in remainder. 6. Of bars in equity. 7. Of money charged on land, legacies, dower, rent, and interest. 8. Of church property and of advowsons. 9. The limits of the act. 10. Of rights of common, of way, and of water, and of lights ; and, 1 1 . Of moduses and exemptions from tithes. And first, what the act has abolished. 2. All real and mixed actions of every description are abolished after 81st December 1834, except a writ of dower, quare impedit, or an ejectment («) ; but the right to bring real actions where there was no right of entry, was saved till the 1 June 1835 (b), under which savino- the last writ of ridit that can be maintained O O has been tried. 3. And there is a further saving which is still in operation : this applies to cases where, on the 1st Juno 1835, any person whose right of entry to any land shall have been taken away by any descent cast, discon- tinuance, or warranty, might maintain any sucli writ or action as is abolished, such writ or action may be brought after that day, but only within the period during which, by virtue of the provisions of the pro- sent act, an entry might have been made by the person bringing such writ or action, if his right of entry had (a) Sec. 36. in s. 15, which has ceased to ope- (&) Sec. G7 ; and see the saving rate. RIGHT EXTINGUISHED. 11 not been so taken away (c) ; so that, although such rights are preserved, yet they are brought, as to the period within which they may be maintained, within the limits allowed by the act, where a right of entry exists. 4. And consistently with this saving, it is provided that after the 31st December 1833, no descent cast, discontinuance, or warranty, shall toll or defeat any right of entry or action [d), and thus this doctrine is at an end in this important respect {e). 5. Continual or other claim will no longer preserve any right of entry, or distress, or action (/). 6. As we have already seen, the old statutes of limitation barred the remedy, but did not extinguish the right ; but now, when the remedy is barred by time, the right and title of the person in any land, rent, or advowson, whose remedy is taken away, is extinguished {g). This is a great improvement, and very much assists titles depending upon non-claim. The rights of the Crown are subject to a like pro- vision, under another act of Parliament (A). The effect of the statute is, after the proper period of limi- tation has passed, to vest the legal fee simple in the party who has been in possession during that period, and he is competent to convey it to another, and con- sequently such a title may be forced upon a purchaser (z) ; and so may a title depending upon non-claim, even against the Crown, where the Crown is specially barred (c) Sec. 88. {g) Sec. 84. Id) Sec. 89. ; / . , . , . , (h) Tuthill V. Rogers, 1 Jo. & (e) And as to warranty, vide ^ ' ^ ' PI t-n , Lat. 36. urch. p. 574. (/) Sec. 11 ; and as to posses- (?) Scott v, Nixon, 3 Dru. & sion by joint-tenants, younger bro- War. 888. ther, &c., y'l^Q post. 12 THE PERIOD OF NON-CLAIM. by act of Parliament, in which there is a like provi- sion barring the estate as well as the remedy {k). 7. Before I proceed to state the new period of limi- tation, I may observe, that unless where existing rights are preserved in the instances already pointed out, the time which may have run before the passing of the act, even where it has not barred the right, will count as part of the period allowed by the new law, and therefore it will continue to run until it amounts to the twenty years, or it may be the forty years allowed, as we shall presently see, by the new law. {k) Tuthill V. Rogers, ubi sup. SECTION III. OF THE PERIOD OF NON-CLAIM, AND WHEN THE TIME FIRST ACCRUES, AND OF SAVINGS FOR DISABILITIES. 1. Meaning of words in the act. (Twenty years' non-claim a ^'< har: an ejectmeiU the rc- ' * y medy : sect. 2. 3. But tithes recoverable from oc- cupier. 4. Turnpike tolls not within the act. 6. Quarries and limestone land are. C. Heriots and certain rents, hoiv far affected. 8.'\/rt cases of possessions when 9./ time accrues : sect. 3 : 1. When claimant has been in ^jo5S ^^^- ^' ces in the act, the words " the same (/•) Doe v. Williams, 5 Adol. & estate or interest " appear by the Ell. 291 ; Wrixon v. Vize, 3 Dru. context to mean literally what & War. 104. they express. MORTGAGEE WITHIN THE ACT. 25 the 40tli section ; and notwithstanding tliat there is some variance between the 40tli section and the 2d, 3d, and 14th sections of the statute, and the 1 Vict. c. 28, yet there is, it is said, the same restriction upon a suit for recovering the land as there is upon a suit for the recovery of the money (^). Where a mortgage deed was executed by the mortgagor only, and vested the legal fee in the mortgagee, subject only to redemp- tion, on payment of the money at a future day, it M'as held, no interest having been ])aid, that the time under section 3 ran from the date of the mortgage against the mortgagee, and not merely from the day appointed for payment of the money, although the mortgagor's covenant for quiet enjoyment w\is in the usual terms that the mortgagee should and might, after default should happen to be made in the payment of the money or interest, enter and possess and enjoy the property, and the covenant for further assurance Avas in case of default in payment (/) ; but this is a very strict construction against the legal right. 17. It has been decided in the House of Lords (w) tliat the true construction of the old statute of limita- tions is that it bars those only who, having an available right of entry, have omitted during the statutable period of twenty years to exercise it, even where the party is estopped by his own act from entering ; there- fore, where a Avoman was tenant in special tail, and the reversion in fee was in her eldest son, the issue in tail, and she created a base fee in his favour, which it was ruled did not merge in his reversion in fee by (s) 3 Dru. & War. 121. & Wels. 608 ; 15 Mees. & Wels. (0 Doe V. Lightfoot, 8 Mees. & 769; 2 House of Lords Cas. 811 ; Wels. 653. compare 21 Jac. 1, c. 10 , Avith the (m) Doe V, WoodrofFe, 10 Mees. new statute, 26 NATURE OF POSSESSION MAY BE EXPLAINED. reason of the estate tail, the son entered and suffered a recovery to himself in fee in his mother's lifetime, by which it was held he had hound himself by estop- pel, and therefore his entry did not avoid the base fee, which continued till his death. It was also held that he had no available right of entry as heir in tail under the statute of limitation on the death of his mother, M'ho died in his lifetime, but that the time be^an to run at his death, and not before, against the person then entitled to claim as issue in tail under the estate tail. 18. Athough a man has been in possession twenty years as apparent ow^ner, yet the rightful owner may show that the possession was not such as the statute will give effect to. Thus, where a widow and her only son, an infant, resided together on the property which had descended from the husband to the infant, and she married again, and her second husband lived with her son until 1805, when the latter, who was about twenty- one, left the premises, and the second husband acted as owner of the property ; but the son occasionally resided two or three weeks at a time in the house, inhabited by the second husband and his wife, and so resided there at the death of his mother in 1841, and remained about three Aveeks after her death, and in 1842 the surviving husband procured the son, the heir-at-law, to execute a mortgage of the property, and the money was paid by the son to the husband, it was held in ejectment by the mortgagee against the husband that the former was entitled to recover, as the presumption was that the husband held as tenant at will to his son-in-law {v) . The defendant said that he {v) Doe V. Groves, 10 Adol. & EU. N. S. 486. BAR OF MORTGAGEE THOUGH INTEREST PAID. 27 occupied as a]^parent owner for twenty years. To this the reply was tliat the real owner came now and then and lived with him. Mr. Justice Patteson observed, that he did not say that a party having a legal title to an estate conveys it away by mere equivocal acts, which may amount to an admission of title in another. But here the defendant's title rested merely on the statute of limitations, and his acts might well amount to an admission, that during the period in question he was, in fact, tenant to another. We may observe, that the circumstance that the son-in-law acted as owmer in raising money on the property at the request and for the benefit of the stepfather long after the period when time per se would have been a bar, was also entitled to great weight. 19. In Doe v. Williams (x), where the question was whether the possession of the mortgagor was adverse before the statute, and it was held according to the old law that it was not, Mr. Justice Patteson, during the argument, asked the counsel of the mortgagor w^hether he said that the possession was adverse as soon as twenty years had elapsed from the right accruing ? Suppose, he said, interest had been paid on the mortgage regularly, the plaintiff, according to that construction, would nevertheless be barred. To this it was answered that the statute excepts the case of a written acknowledg- ment, and that the payment of interest was tantamount. The learned Judge added, that if the legislature meant to except the case of payment of interest, it was very odd that they did not do so in express terms; and in delivering judgment he said, how far, under the 3d sec- tion, it was necessary for the mortgagee to bring his {x) 5 Adol. & EU. 29L 28 mortgagee's right saved bv statute. action within twenty ycurs^froin ihc daij of default, lie could not say; lie did not sec his way at all. If the 3d section was intended to comprehend the case of a mort- gagee, it was very ill penned ; and the 40tli section, if meant to apply to actions of ejectment, was still worse penned. 20. These observations led to an enactment that it should be lawful for any person entitled to or claiming under any mortgage of land (being land within the defi- nition of the 1st section of the former act) to make an entry or bring an action at law or suit in equity to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit in equity shall have first accrued (?/). In this act it was not deemed necessary to point out Avhen the right first accrued. By the 14th section of the first act an acknowledgment in writing within the terms of that section operates to make the time run only from that period, and the last act gives a like effect to the payment of any part of the principal or in- terest {z). Where the mortgagee is also tenant for life of the land, the statute does not begin to run against the right to the mortgage until his death; and it is said that the same rule applies where the mortgagee is one of several tenants in conmion of the land, for a tenant in common is entitled to receive the whole of the rent, subject to an account with his co-tenant. That view of the case is confirmed by i\\Q fact, that one tenant in common of the equity of redemption may redeem, iy) 7 Will. 4 & 1 Vict. c. 28. {z) 3 Dru. & War. 117—110. ACKNOWLEDGMENT BY TENANT FOR LIFE. 29 which assumes that as against an incumbrancer one is entitled to the \\hole(rt). In a case where the tenant for life under the will of the mortgagor of the equity of redemption, more than twenty years after his death, took an assif^nment of the morto-a^'e in the name of a trustee, but there was no proof that any interest had been paid from the death of the mortgagor, and before the execution of the transfer ; a recital in the transfer to which the tenant for life was a party, that the principal sum only remained due, all interest for the same having been paid, was held not to be a statement that any interest had been paid within twenty years. The Vice-Chancellor said, that suppose the fact was that for more than twenty years no interest had been paid during the life of the tenant for life, it then became a serious question whether, after the rever- sioner had obtained the benefit of the statute, it Avould be competent for the tenant for life to create a redeem- able mortgage by her own act. The grossest fraud might be practised on tenant in remainder, as for a mere sixpence the tenant for life might sign an acknow- ledgment that no interest was due (b). 21. It may be thought, having regard to the general intention of the original act, as shown in sections 2, 3, 7, 14, and 40, that the above statutory provision M^as not necessary. It seems, however, still to have been con- sidered an open point, whether a grantee of an annuity charged on land, whose annuity has been punctually paid, but the grantor has been in possession of the land, and has received the rents for twenty years without any {a) Wynne v. Styan, 2 Phil. ."iOS ; Per Cur. Hyde v. Dallaway, 2 Hare, 528 ; see Burrell v. Lord Egremont, 7 Beav. 205. {b) Gregson v. Hindley, 10 Jur. 883, 30 ANNUITY WHILST PAID, CANNOT BE BARRED. acknowledgment in writing- of the grantee's title, is not barred of his right by the original act ; and this case is not provided for by the later one (c). The statute clearly did not intend that time should run in such a case. The original relation of the parties is in no respect varied, and it would be singular if the regular discharge of the obligation should amount to a bar for the time to come. Every ])ayment, on the contrary, is a submis- sion to the incumbrance subject to which the estate is held. The grantee receives all his rights when his annuity is regularly paid : he can neither enter on the estate nor require the grantor to acknowledge his title in writing, yet it would be impossible to hold that be- cause he regularly enjoyed his right, at the end of twenty years it must be barred by this statute {d). This is a stronger case in favour of the continuing right than the case of a mortgagee where the interest is regu- larly paid. The point seems to be free from doubt. It seems to have been decided in Francis v. Grover (e), where an annuity, which was held to be a charge only and not to create a trust, was given by a will to one for life and charged on all the testator's estates, wliich estates (charged with the aunuity) were given to trus- tees to the use of certain persons. The acting trustee in possession of the estates paid the annuity from the death of the testator in 1808 until 1827. In 1829 a devisee of the beneficial interest attained twenty-one and entered into possession, and to a bill filed by the annuitant in 1844, for payment of the annuity out of the real estate, set up the statute as a defence. Wigram, (c) Searle v. Colt, 1 You. & & Ell. N. S. 601 ; M'Donnell v. Gol. C. C. SG ; but this received no WK.miy,'post, pi. 22. sanction from the Vice-Chancellov. ((?) 5 Hare, 89. {d) See Doe v, Beckett, 4 Adol. MINES RESERVED, RIGHT NOT BARRED BY NON-USER. 31 V. C, said that lie thought the annuity was not barred by the statute, 'Ihe annuity was paid in 1827 by the party who was then actually in possession or receipt of the rents and profits of the estate, not adversely, but according to the trusts of the will. He did not think there was any ground for saying that the annuity was barred. Ihe payment up to 1827 was sufficient to take the case out of the statute. 22; " Discontinuance of possession," in the statute means an abandonment of possession by one person followed by the actual possession of another person, for if no one succeed to the possession vacated or aban- doned, there could be no one in whose favour or for whose protection the act could operate. To constitute discontinuance there must be both dereliction by the person who has the right; and actual possession, whether adverse or not, to be protected {f). Therefore where a man had conveyed to another certain lands, reserving- the mines, with a right of entry, it was held that the right was not barred simply by the omission to work them for twenty years. The grantee of the land enjoyed the lands, but the possession of the land was not the possession of the mines, which had become a distinct hereditament, and it was only by user of them, or by some unequivocal act of possession, that the rightful owner could have been dispossessed of them {rj). 23. It has been held that the word " rent " in the 2d section, is confined to cases where an estate in the rent is claimed, and where the defendant sets up an adverse possession of the rent itself for twenty years (/) 10 Ir. Law Rep. bW, per Ir. Law Rep. 514: the effect of Cur. user and possession of a part of the {g) M'Donnell v, jM'Kinty, 10 mines is there consideretl. 32 NON-PAYMENT OF RENT NOT A BAR. as an answer to the plaintiff's claim. The word " rent,'' it was observed, had an ambiguous meaning, being either the estate in the rent, or the rent reserved under a lease ; and the Court held that in this section it was confined to the former meaning alone, and that a mere non-receipt of rent under a lease for more than twenty years did not deprive the lessor of his right to rent under the lease (A). In the 1st section of the act, the interpretation clause, the word rent is used in two senses, viz., in the sense of a rent charged upon land, and of a rent reserved under a lease ; in the 2d section it is used in the sense of rentcharge only, and it is used in the same sense in the 3d, 4th, and 25th sections, and in the 7th section it is used in the same sense (i). The sense in which the word is used in the 8th and 9th sections we shall presently see. 24. Where under a lease of land for ninety-nine years a rent of 25 /. was reserved in the usual manner, and none having been paid for more than twenty years, the person in possession under the lease set up the statute as a bar to the landlord's right to distrain for any por- tion of the rent in arrear, it was held that the case did not fall within the statute ; for the word " rent " in the 2d section has no reference to rents reserved on leases for years by contract between the parties, but is con- fined to rents existing as an inheritance distinct from the land, and for which before the statute the party entitled might have had an assize, such as ancient rent service, fee-farm rents, or the like. The Court considered that this would have been the true view even if the (h) Per Cur. Dean and Chapter porated Society, 10 Ir. Eq. Rep. of Ely V. Cash, 15 Mecs. & Wels. 411. 022 ; Grant v. Ellis, 9 Mecs. (i) Doe v. Angell, 9 Adol. & & Wels. 113; Sheil v. Incor- EU. N. S. 356, 366 ; i^er Curiam. NOX-PAYMENT OF RENT NO BAR. 3^ 2(1 section had stood alone, but the subsequent parts of the statute strongly confirmed the correctness of this construction. The first case put in the 3d section is that of a party who has himself, in respect of the estate or interest claimed, been in possession of the rent, and who afterwards had been dispossessed or has discon- tinued the receipt of the rent. The estate or interest claimed must, according to the context, mean the estate or interest claimed in the rent, and not in the land out of which the rent issues. Now a person entitled to the rent reserved on a common lease for years has no estate in the rent at all : he is himself the free- holder of the land, and can therefore have no estate in rent issuing out of the land. And by the 42d section a limit is imposed as to the number of years' arrears for which a party entitled to rent may distrain, and there the subject matter to be recovered by the distress is described not as " rent," but as " arrears of rent." At the end of the ninety-nine years the reversioner would clearly be entitled to the possession of the land, for by one of the provisions of section 3 the right to the reversion is to be deemed to have first accrued when the estate falls into possession, unless, which was not the case here, some third person should in the mean- time have got into wrongful receipt of the rents : as therefore his right to the reversion Mas preserved, his right to recover the rent incident to that reversion could not be deemed to be barred, for otherwise he might, by the dealing of the tenant wrongfully with another claimant, be barred of his right. The Court considered the 9th section as corroborating their view, and in this view the reversioner, by distraining for or otherwise obtaining his rent within twenty years after the first wrongful receipt of it by the adverse claimant, c 34 TIME RUNS FROM LAST RECEIPT OF RENTCHARGE. might eft'ectually prevent his being, by the wrongful act of another, deprived of the estate at the expiration of the term (k). 25. Section 2 fixes the period for land or rent from the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent ivere or loas received ; but although the statute provides in the same sentence both for the case of land of which a party has been dispossessed, and for that of rent which he has ceased to receive, the sen- tence must be read not as giving in either case a choice, but reddendo singula singulis, i. e. fixing the actual moment of dispossession or discontinuance of possession as the point from which tlie twenty years are to run in the case of land of which a party has at some moment of time ceased to be in actual possession, and the last actual payment of rent as the point from which the twenty years are to run in the case of a party ceasing to receive rent (/). So that in the case of a rent the time will run from the last actual receipt of it, and not from the time when the first payment after such receipt became due (?«). If a man is dispossessed of land he has a full term of twenty years from the time of his being dispossessed. But a person disseised of a rent has only twenty years from the last payment ; and so if an annual rent has been paid on the day on which it became due, and is afterwards unjustly withheld, the party aggrieved has only nineteen years instead of twenty during which he can bring his action or distrain, for during the first (-1) Grant v. Ellis, 9 Mees. & (I) Per Cur. 16 Mees. & Wels. AVels. 113 ; the above is an abritlg- 564. ment of the judgment as delivered (?n) Owen v. De Beauvoir, 16 byRolfe,B.; DeBeauvoir, t'.Owen, Mees. & Wels, 647; 5 Excheq. Excheq. Rep. 179, infra ; Cros- Rep. 166. bie V. Sugrue, 9 Ir. Law Rep. 17. CHARITIES : HEIR .* NAKED POSSESSION. 35 year of the twenty it is plain that he has no right of distress or action (?i) . 26. It has been considered that this statute makes time a bar even against charities ; but in most cases their rights woukl be saved under a later section (25), as in general charity estates are held under trusts, and whilst the right of the trustees remains unbarred, the interests of the charities cannot be affected by the trustees (o). 27. Where an estate is devised to trustees, and time has run against the heir, the filing a bill by a third person to have the trusts performed cannot of course preserve the rights of the heir adverse to the will ; but although his rights as heir adversely to the will may be barred, yet in the suit he would be entitled to any portion of the property which in the events which have happened the trustees hold for the heir, as being un- disposed of (/:)). 28. A person in possession (with or without title) may of course resist the claim of a party whose entry is barred by the statute (q). 29. Although when the time has once begun to run, the party to be affected cannot by any settlement create new rights (r), yet persons so claiming under him will have the same time to bring an ejectment as he himself would have had if he had continued alive, (n) 16 Mees. & Wels. 565 ; per Char. Don. v. Wybrants, i7ifra, Parke, Baron. As the learned judge n. to s. 24, s. 25. IJointed out, this construction (p) Simmons v. Rudall, 1 Sim. would prevail as to other branches N. S. 115. of the act. (g) Holmes v. Newlands, 11 (o) See Incorporated Society v. Adol. & Ell. 44 ; 3 Adol. & Ell. Richards, 1 Dru. & War. 258 ; N. S. G79. Attorney-General v. Persse, 2 Dru, (r) Stackpoole i\ Stackpoole, 4 & War. 67 ; Commissioners of Dru. & War. 320. c2 36 EFFECT OF SETTLEMENT AFTER TIME BEGINS TO RUN. and remained oAvnerof tlio estate. Therefore, where at the period possession was taken upon which time was to operate, the estate stood limited to one for life, with remainder to her sons successively in tail, with remain- ders over, and by a settlement and recovery the tenant for life and her only son resettled the estate under which the son became tenant for life in remainder, with re- mainder to his issue in tail, with remainder to his sister for life, with remainders over, and he died Avithout issue, and before his remainder fell into possession, and his mother died in 1822, it was held that the sister could maintain an ejectment within twenty years from 1822 ; for the effect of the recovery and resettlement was to bar all remainders over and to create new estates out of the son's estate tail, and therefore the persons who took such estates had the same time that he had, viz., twenty years from 1822 (s). Where a man by his will creates particular estates and remainders, and then mortgages his estate, of course he and his devisees have only in common the allotment of time to claim against the mortgagee in possession, and the Avill cannot give to the devisees successive rights (t). 30. The third provision of the 3d section, coupled with the 2d section, has been held to apply to a term of years assigned to a trustee to attend the inhe- ritance, where of course the trustee is not in possession, so that the twenty years would run against him from the time when he became entitled to the possession. In the case in which this was decided (u), there had been no demand of possession before ejectment brought. Patteson, J., observed, that he would not say the words (s) Doe V. Edmonds, G Mees. & Wels. 295. (0 Browne v. Bishop of Cork, 1 Dru. & Wal. 700. (w) Doe V. Phillips, 10 Adol. & Ell. N. S. 130. OPERATION OF STATUTE ON ATTENDANT TERM. 37 of the 3d section were specially pointed to tlie case of trustee and cestui que trust, but they certainly seemed to be very applicable. Now if the termor could have brought ejectment within twenty years before this action was brought, there was an end of the case. The 3d section seemed clear, and there was nothing in any other part of the act to militate against their construction of it. Coleridge, J., added, that to sus- tain this action it must bo conceded that the termor might sue without demand of possession. Then the 2d section, with which the 3d section, as being ex- planatory of it. was to be read, seemed to embrace this very case, inasmuch as the right of entry first accrued beyond the period limited. 31. The point was not, however, fairly raised in the case of Doe v. Phillips, because no demand of pos- session had been made ; and considering the case to fall within the 2d section, and the branch relied upon of the 3d section, if the trustee of the term could re- cover without a demand, it was manifest, as pointed out by the Court, that he might have recovered, with- out any previous demand, more than twenty years before the action brought ; and in that view his action was too late. It was not decided that the cestui que trust was not tenant at will to his trustee, nor was it even decided that the demand of possession would not determine the will. Indeed it appears that the plain- tiffs were trustees for infants, and that both the trus- tees and the cestuis que ti^ust had been kept out of possession for more than twenty years by the uncles and aunts of the latter, and that the case fell pro- perly within the 12th section. If, as Maule, J., sub- sequently observed, not l)arred in twenty years, tiiey c3 38 OPERATION OF STATUTE never would be (.r). It seems to have been a case in which both trustee and cestui que trust were barred. 31 rt. In a later case (y), where upon a writ of dower the tenant pleaded an outstanding term, the Court of Common Pleas held that in the case of an attendant term, the cestui que trust was tenant in will to his trus- tee, unaffected by the 7th section, and that whilst the estate at will remained, the statute did not operate ; and this seems to be the better opinion. Wilde, C. J., in delivering the opinion of the Court, observed that the general object of the act seemed to have been to settle the rights of persons adversely litigating with each other, not to deal v. ith cases like that of trustees and ctstui que trust, where, although there are two parties, one only is interested, and that the party bene- ficially entitled. The term having been assigned to attend the inheritance, the assignee became trustee, and the purchaser cestid que trust during the term; the cestui que trust entering into possession of the land, he was, at law, tenant at will of the trustee. By sect. 2, it is enacted that no person shall make an entry, or bring an action to recover any land, but within twenty years next after the time at which the right to make such entry or bring such action first accrued. The, right of entry as between landlord and tenant accrues on the expiration of the tenant's term, if he has a term. If a tenant at will, the right of entry, in the terms of this section of the act, would naturally be understood to accrue upon the dctermina-: lion of the tenancy at will. It might be said indeed, (.r) See 8 Com. Ben. Rep. 242, (j/) Garrard v. Tuck, 8 Cora. 253 ; see and consider 8 Adol. & Ben. Rep. 231 ; 13 Jur. 871. Ell. N. S. 158, n. ON ATTENDANT TERM. 39 as in the case of a tenancy at will, the lessor may at any time determine his will by entering ; that a right of entry exists at all times from the commencement of the estate at will, and is not dependent on a previous determination of the estate. But the Court thought that the term " right of entry," in the 2d section, ought not to be so construed. The right which a lessor has in such a case is a right to determine the tenancy at will ; and it is only on the determination of the tenancy at will that there is such a vested right of entry as is in the contemplation of the 2d section of the act. This view appeared to be con- firmed by the proviso of the 7th section respecting tenancy at will, which provides in cases of ordinary tenancy at will, that the right to make an entry " shall be deemed to have first accrued either at the termination of such tenancy or at the expiration of one year next after the commencement of such tenancy." The object of that section obviously was to fix a definite period after the commencement of the tenancy at will, beyond which the tenancy shall not be presumed to have had a continuance, a provi- sion which would have been wholly unnecessary if the right of entry, within the meaning of the 2d section, had at all times existed from the very commencement of the estate at will. But passing from the 2d to the 3d section of the act, it was contended that the present case fell within that clause of the 3d section which we have just stated. But the Court did not think that this case, of a cestui que h'ust holding possession of lands under a trustee, fell within this clause, which was meant to apply to cases where the person holding the land does not hold it under, or in privity with, the person in c 4 40 OPERATION OF STATUTE ON ATTENDANT TERM. whom the right of entry is supposed to be. A cestui que trust in such case holds possession under the trustee, and under the protection of an instrument by which the estate is conveyed to the trustee. It couhl not, therefore, be said that it was a case in whicli no person entitled under the instrument had been in pos- session, for the cestui que trust had been virtually in possession under the instrument (1). The provision in the 7tli section respecting trustees appeared to the Court to reflect light on the nature of their estate, and on the l^rovisions of the 2d and 3d sections, as far as their estate is concerned. The object of that section ap- peared to be to fix a definite period, at the end of which the right of entry of the lessor was, as against the tenant at will, to be deemed to have accrued ; and it provides, that no cestui que trust shall be deemed to be a tenant at \vill within the meaning of that clause, which was equivalent to saying that the right of entry of the trustee, as against the cestui que trust, should not be deemed to have first accrued from the expira- tion of one year next after the commencement of the tenancy ; and therefore the exception seemed to have been introduced in order to prevent the necessity of any active steps being taken by the trustee to preserve his estate from being destroyed, as in the case of an ordinary tenancy at will by mere lapse of time. The intention appeared to be to put the estate of the trustee (I) This seems to refer to the assignment of the term to attend : the possession of tlie cestui que trust might bo deemed the possession of the assignee of the term, but tlie assignment was not made " by a person being in respect of the same estate or interest in tlie possession or receipt of the profits of the land" (see sect. D), ])ut by a person who never had been in possession. PORTIONS WHERE TERM NOT BARRED. 41 in a better state, in this respect, than that in which tlic estate of an ordinary lessor was as against his tenant at will ; whereas his situation would be worse than that of an ordinary lessor, on the construction contended for, for the time of limitation contended for would run, as against the trustee, from the commencement of his estate ; whereas as against an ordinary lessor, the time would only run from the actual determination of the tenancy, or from the end of the first year's tenancy. This well considered view of the statute is not now of much importance as to attendant terms, but it is of great importance with reference to other cases. 32. In the case of Young t^. Lord Waterpark (2), where a term of years created by a marriage settlement to raise portions was considered as still in existence, it was held that it could not be objected to a suit by the children for the portions that they were bound under the 40th section, to which our attention has not yet been called, because the trustee did not hold adversely to them, but for them. It should be kept in view that this case did not decide that time mav not run ao-ainst both the trustees of the term and the cestuis que trust, but there are not many cases it is apprehended in which such a defence could be maintained. 33. If a man have a power of re-entry under a lease upon non-payment of rent, and no payment of rent be made for 20 years, during which time he has not re- entered, he cannot re-enter afterwards and maintain an ejectment during the lease {a), although as we have seen, his right to recover the possession at the end of {z) liJ Sim. 204 ; 10 Juv. 1. 179G : no rent had been paid, and (a) Doe V. Bingham, 3 Ir. Law in 1805 he purchased from a per- Rep. 45G. The defendant was the son claiming adversely to the lessee under a lease granted in lessor. 42 WHEN TIME RUNS AGAINST REMAINDERS, ScC. the lease Avill not be affected by the mere non-payment of rent (I). 34. After providing, as we have seen, in three events for estates and interests in possession, the 3d section proceeds to provide when time shall be held to first ac- crue in regard to reversionary and future interests (b). 4. When the estate or interest claimed sliall have been an estate oj' interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to ho^o, first accrued at the time at which such estate or interest became an estate or interest in possession (c). And the words, " or other future estates or interests," are large enough to comprehend, and would comprehend, all executory devises (d). 5. And when the person claiming such land or rent, or the person through whom he claims, shall have become entitled Z»y reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such for- feiture was incurred or such condition was broken. 35. But section 4 provides that when any right to make an entry or distress or to bring an action to recover any land or rent by reason of any forfeiture or breach of condition, shall \i2i\e. first accrued in respect of any estate or interest in reversion or remainder, and the land or rent shall not have been recovered by virtue of such right, the right to make an entry or distress or (J) Sect. 3, supra, p. 18. {d) Per Tindal, C. J., 3 Bing. (c) See Doe v. Edmonds, 6 Mees. N. C. 664. & Wels. 295. (I) One learned judge thought this a startling state of things if such were the law ; 3 Ir. L. Rep. 463. In this case, according to Alderson, B., the judges in fact controverted Doe v. Oxenliani, though thej are reported to have stated otherwise ; l&Mees. & Wels. 560, 661 ; see post, pi. 40. RIGHT OF REVERSIONER. 43 bring an action to recover such land or rent shall be deemed to hsiYeJii'st accrued in respect of such estate or interest at the time when the same shall have be- come an estate or interest in possession, as if no such forfeiture or breach of condition had happened (e). 36. And a right to make an entry or distress or to bring an action to recover any land or rent shall be deemed to hsivejirst accrued, in respect of an estate or interest in reve^^smn, at the time at which the same shall have become an estate or interest in possession by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof or such rent shall have been received, notwith- standing the person claiming such land, or some person through whom he claims, shall, at any time previousli/ to the creation of the estate or estates which shall have determined, have been in possession or receipt of the pro- fits of such land, or in receipt of such rent {/). So that the remainder-man is not bound to enter for a forfeiture until his estate fall into possession, nor is the right of a reversioner affected by a possession by him, or any person through whom he claims, previously to the creation of the estate which shall have determined. 37. But several rights in the same person may, con- trary to the old rule, be barred without any new allow- ance. For when the right to make an entry or distress, or bring an action to recover any land or rent to which any person may have been entitled for an estate or interest in possession is barred by the lapse of time, and such person shall at any time during the said period have been entitled to any other estate, interest, right (e) Sect. 4 : this of course applies like the other provisions to equitable rights ; 2 Phill. 125, infra, s. 6 of this chapter. (/)Sect. 5. 44 NON-PAYMENT OF RENT NO BAR. or possibility, in reversion, remainder or otherwise, in or to the same land or rent, no entry, distress or action shall be made or bronght by such person, or any per- son claiming through him, to recover such land or rent, in respect of such other estate, interest, right or pos- sibility, unless in the vieantime such land or rent shall have been recovered by some person entitled to an estate, interest, or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession (g) . 38. Where rent reserved by a lease, although amounting to 20 s. or upwards, has been simply with- held for 20 years, the lessor, the reversioner, would, as we have seen, be entitled to recover the land on the determination of the lease. This clearly was the intention of the act, and the intention is shown by the provision in the 9th section giving effect to a payment of rent by a lessee to a person wrongfully claiming the reversion (A). In Grant v. Ellis ( i ) the Court of Exchequer thought that the remedy was under the 4th clause of the 3d section, relating to estates and interests in reversion and remainder. Now that clause provides that when the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession. If in this clause profits of the land included the rent of it, and rent had been received by the lessor, the re\er- (ff) Sect. 20. (h) OMees. & Wels. 12G. (e) 9 Mees. & Wels, 113, ««/>/•«. RENTCHARGE, HOW AFFECT-ED. 45 sioner, in respect of his estate, altlioiigh the payment of it to him M'as discontinued, it might be doubted whether the case we are considering would fall within that branch of the 3d section. But although profits should include rent, yet if the clause in question is to be read as referring to the period when the reversion or remain- der falls into possession, which view is assisted by the terms of the 5th section, then the case would clearly fall within tliis clause, for neither possession nor receipt of profits would have been obtained in respect of the estate in possession. But profits do not seem to include rent before the reversion or remainder falls into possession. 39, In the case of Grant v. Ellis already referred to, the Court observed (j) that it was not unworthy of notice that throughout the act the receipt of rent is constantly mentioned in a mode which appears as if studiously designed to mark that the rent contem- plated is not the ordinary rent reserved on leases for years ; not that which is usually spoken of as the rents and pro/its, but something distinct from both. For instance, in the 3d {k) section the language is, *' Where the person claiming such land or rent shall have been in jjossession, or in receipt of the profits of such land, or in receipt of such rent :'^ and the same, or nearly the same, mode of expression is used through- out the act. This, the Court added, is certainly not the ordinary mode of speaking of a person in actual possession of land, or in receipt of the rents received on leases for years. They did not rely very much on this argument, but the circumstance they said was worth adverting to. It appears to be a circumstance entitled to great attention. The frame of the act (j) 9 Mees. & Wels. 128. (X) It is the 2nd in the report : probably a misprint. 46 MEANING OF PROFITS: OF RENT. fully justifies the opinion of the Court. In the first section of the act no meaning is assigned to the word profits, and the meaning assigned to the word rent was not intended to include rents reserved on leases (/) ; but of course that word would receive its ordinary signification v>here the nature of the provision or the context of the act shows that it was used in that sense; for example, the 8th section, relating to te- nancies from year to year or other period, without a lease in writing, speaks of the last time "when any rent payable in respect of such tenancy shall have been received;" and section 9 provides for the case of a lease in writing, " by which a rent amounting to the yearly sum of 20 s. or upwards shall be reserved, and the rent reserved by such lease shall have been re- ceived" wrongfully, and throughout leaves no room for doubt that the rent referred to is a rent reserved by lease, whether the lease be of land or rent [charge] . And in both of these sections, and also in section 7, relating to a tenancy at will, the tenant is spoken of as a person " in possession or in receipt of the profits of any land," or in receipt of any rent [charge]. It is clear therefore that the expression, " in receipt of the profits of any land," is used in the act, in conjunction with the words in possession of the land, to denote not the receipt of rent from a tenant, but the receipt of the actual proceeds of the land ; and they were no doubt introduced to prevent any question arising where the owner, although he received the proceeds, did not actually occupy the land {?n). This use of the word profits explains the meaning of the 35th section, which enacts that the receipt of the rent payable by (I) See and consider 9 Mees. & (m) See 1 Jo. & Lat. 81, Wels. 128. LESSOR MAY RECOVER LAND THOUGH RENT UNPAID. 47 any tenant from year to year, or other lessee, shall as against such lessee, or any person claimhig under him (but subject to the lease), be deemed to be the receipt of the profits of the land for the purposes of the act. The framers of the act appear to have been apprehensive that the tenant being in the actual re- ceipt of the profits of the land, as that term was used in the act, might claim adversely to the lessor, who received the rent only. On the other hand, they guarded the tenant's lease against the landlord's claim, on the ground that the receipt of the rent was to be deemed a receipt of the profits of the land. It is no doubt a singular provision. The question could only arise between the tenant and the person receiving the rent; and the receipt of it is made binding only against such lessee, or any person claiming under him. Had the clause been general, it would in every case, as regarded the purposes of the act, have made a pay- ment of rent to a wrongful claimant binding. As the clause stands, such a payment binds the lessee ; and the act itself, in section 9, provides where such a pay- ment shall bar the riohtful owner of the reversion. 40. The right to recover at the end of the term, where the rent has been simply withheld, was esta- blished in the case of Doe v, Oxenham, where a lessee for years depending upon lives, at an annual rent of 38 /., agreed with the lessor to allow him to make certain improvements, and the lessor agreed that the lessee should not be called upon for payment of the rent during the lease — at the expiration of the lease — twenty years having elapsed since the payment of any rent — the lessee set up the statute in bar of the les- sor's ejectment, and insisted that the case fell within 48 OPERATION OF THE StiI the former breach of the 3d section, relating to the discontinuanee of possession or receipt; but it was held clearly that the case fell Avithin the fourth branch of the 3d section ; and the 9th section, the Court thought, threw light upon the subject. There had been no adverse claim ; it was the mere case of a landlord omitting to compel his tenant to pay the rent reserved by his lease. The right of the lessor mani- festly accrued on the determination of the lease, and he was entitled to bring his action at any time within twenty years from that period (n). Where there has been a payment to a wrongful claimant of the rever- sion, if the rent amount to the yearly sum of 20*. or upwards, under a lease in writing, the case will fall within the 9th section (o). 41. Where a lease in writing is made at no rent, or at one under 20 s., it does not fall within the 9th section, which we shall presently consider; and the lessor may recover the land within twenty years of the cesser of the lease, although the rent has been paid to a wrongful claimant for twenty years before the expiration of the lease (/j), for in this case, according to the old law, which is left to operate on it, the receipt of rent is no ouster. 42. The operation of the 5th and 20th sections was fully considered in the case of Doe v. Moulsdale (y). An estate was devised for three lives to W. Jones, his heirs and assigns, who devised it to his wife Ann Jones, her heirs and assigns, for the lives, and she in 1793 conveyed it for valuable consideration to her (w) Doe «. Oxenliam, 7 Mees. & (o) Infra. Wels. 181, yide infra-. Doe v.Bing- {j)) Infra; 7 Mees. & Wels. ham, 8 Ir. L. Rep. 450 ; Crosbie v. 132 ; 4 You. & Coll. 4G7. Sugrue,9lr.L.Rep.l7;s?<^;'.,42,n. {q) 16 Mees. & Wels. C89. AND THE 20th SECTIONS. 49 second son, Richard Jones, his heirs and assigns, for the lives, with a proviso that the estate should revert to her, her heirs and assigns, if he should have no child living at his death. In 1811 Richard Jones purchased the reversion in fee, which was accordingly conveyed to him (I). He died in 1812 without issue, leaving Lewis Jones his nephew and heir at law. On Richard's death without a child, of course the lease for lives reverted to the heirs of Ann, who had died in 1819. At the time of Richard's death in 1812 Lewis Jones was Ann's heir as well as Richard's, and was therefore entitled to the estate for the lives m esse, but he did not take possession of the property, which was enjoyed by other persons. Li 1835 the last of the three lives died, and the person who was then heiress at law both of Lewis Jones and Richard Jones, brought an ejectment, and it was held that her right was barred. The Court observed, that by section 3, the title of Lewis Jones, as heir of Ann, would be deemed to have accrued when it became an estate in posses- sion, that is, at the death of Richard without a child then living. By the .5th section, his right to the reversion as heir of Richard (supposing he had no other title) accrued at the end of the term in 1835. The Judges thought that this section applied to those cases only where another person than the termor (II) was the reversioner. This, they said, appeared from the 20th section. In the case before the Court in the (I) A question was argued, whether the lease for lives had merged hy the accession of the reversion in fee in the same person, hut tlie Court found it unnecessar}'- to decide that point. The question of merger was much considered in Creagh v. Blood, 8 Jo. &. Lat. 133. (II) This means the person entitled to the lease for lives : throughout the judgment the estate of the lessee is called the term. D 50 REMAINDER SAVED BY RECOVERY OF PREVIOUS ESTATE. meantime the land had not been recovered by any person, and consequently Lewis Jones's right in respect of his estate in possession having been barred by the determination of the period of twenty years from 1812, the right of the person claiming through him was barred also. 43. In an earlier case (r), where copyholds were limited to the husband and wife for their lives, with remainder to the husband in fee, and he absconded in 1805, and was made a bankrupt in 1807, and the bargain and sale was executed in that year, his wife upon his absconding occupied and continued in tlie occupation during her life, which endured for more than twenty years, the assignees were allowed to recover upon her death for her husband's remainder, was held to be a future estate within the 3d section. And if the 20th section applied to this case, the quali- fication at the end of it applied also ; because the wife was in possession till her death, and thoujih she had not recovered the possession by legal proceedings, it was a sufficient recovery for the purposes of that section if she had been in possession during the whole period of her life. The Court thought that, inde- pendently of the bankruptcy, the husband Avas entitled during the joint lives of himself and his wife, and that upon his death his wife was entitled for her life, and the heirs of the husband upon the expiration of the joint lives. Now in this view we may observe, the property belonged to the assignees upon the bank- ruptcy, which took place in 1807 ; the husband went abroad in 1805, and was never afterwards heard of. The wife therefore held the estate in possession in (r) Doe V, Liversedge, 11 Mees, & Wels. 517. forfeiture: conditions broken: reversions. 51 opposition to the title of the assignees till her hus- band's death, Avhich when seven years expired in 1812 might be considered as proved, although the lapse of the seven years would not prove the exact time of his death, and still less that such death took place at the end of seven years (s). Upon his death she became entitled under the limitations, but there was no change of possession or other act done. The case did fall within section 3, but it does not seem to have been within the 20th section, for the right of the assignees to recover the estate in possession was not barred " by the determination of the period" limited by the act, inasmuch as twenty years liad not elapsed after the bankruptcy, and before the period when the bankrupt's death would be considered as proved. 44. It is somewhat difficult to understand the pro- vision at the conclusion of section 3, and that in sec- tion 4, regarding forfeiture and conditions broken, or the provision in section 5 as to reversionary rights. The last head of section 3 provides, that when the person claiming the land or rent, or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such for- feiture was incurred or such condition broken. Now this section applies as well to cases where the claim- ant has no title except in consequence of the neglect or misfeasance of the party in possession — e. g. in the case of a condition broken where the whole fee has been disposed of subject to the condition — as to cases where the claimant has an actual estate in the land or rent in reversion or remainder ; and section 4, there- (s) Doe V, Nepean, 2 Bai-n, & Adol. 8G ; 2 Mees. & Wels. 894- d2 52 OPERATION OF ACT ON fore, upon the ground that a man should not be com- pelled to take advantage of a forfeiture or of a condi- tion broken, properly gives a new right to the rever- sioner or remainder-man where he has not already re- covered, when his estate becomes an estate in posses- sion, just as if no such forfeiture or breacli of condition had happened. Section 4, therefore, is a modification of the last provision in section 3. The 5th section is confined to reversions, and provides that the right shall be deemed to have first accrued in respect of an estate in reversion at the time at which it shall become an estate in possession by the determination of any estates in respect of which the lands shall have been held, " notwithstanding the person claiming such land, or some person through whom he claims, shall at any time premously to the creation of the estates which shall have determined, have been in possession of the land." Now this provision does not seem to have any connexion with section 4, or with the last clause of section 3, nor do I understand why it was inserted, for it does not seem possible to contend that any portion of section 3 rendered it necessary. The only portion of that sec- tion which by any ingenuity could be supposed to render the qualification necessary, is the first {t) ; but that enacts, that when the person claiming, or some person through whom he claims, shall in respect of the estate or interest claimed have been in possession, or in receipt of tlie profits, &c. and shall, while entitled thereto^ have been dispossessed or have discontinued such possession or receipt, then the right shall be deemed to have first accrued at the time of such dis- possession or discontinuance of possession, or at the (0 See 1 Hayes' Conv. %60. REVERSIONS AND REMAINDERS. 53 last time Avhcn any such profits or rent were or ^vas received. This provision is carefully confined to pos- session of the estate or interest claimed, Avhicli under section 5 must be the reversion. But no one could be in possession of the reversion before it existed, and it could not exist before the creation of the particular estates, and, therefore, the possession of the owner as such before the creation of the particular estates could not possibly affect him under section 3, as the rever- sioner under the settlement after those estates had determined, but his right would properly fall within the fourth division of section 3. The distinction may be a thin one, but there appears to be one between this first clause of section 3 and that upon which the Court of Common Pleas observed in James v. Sal- ter {u). Section 5, as we have seen, applies only to a reversioner who has no particular estate. The case of a reversioner vA\o has also a particular estate falls within section 20. If section 5 had not been inserted in the act, both cases would have fallen within section 2, and the case of a mere reversioner would have been governed by the 4th clause of the 3d section, whilst that of a reversioner entitled also to a particular estate would have been governed by the 20th section. The special provisions as to certain tenancies, to which our attention will presently be drawn, prescribe the time when the right to enter shall in those cases be deemed to arise, and they should be constantly kept in view. 45. An administrator is to be deemed to claim as if there had been no interval of time between the death (?0 Siqyra, pi. 18, 14, p. 22, 23. D 3 54 WHEN TENANCY AT WILL ENDS. of tlie deceased person and the grant of the letters of administration (v). 46. The act contains the following special provisions in regard to the possession of tenants, and provides in other cases where one man's possession shall or shall not enure to the benefit of others. 47. When any person is in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress or bring an action to recover such land or rent will be deemed to have fit^st accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy will be deemed to have determined (I) ; but it is provided that {v) Sec. 6; see Holland ». Clark, 1 You. & Col. C. C. 170. (I) The Tth section was framed chiefly for the purpose of protecting the possession of small patches of land taken from commons, &c., of which the parties might have been allowed to remain in possession without in- terruption for a long period, but of which it would be difficult to prove the commencement of the holding. Tlie reasonable construction, there- fore, is, that in any event the right of action shall accrue ultimately at the end of a year from the commencement of the tenancy, though it may accrue sooner by the actual determination of the will. Arguendo, 7 Mees. & Wels. 282. The section, however, has a much wider appli- cation. It seems to be assumed in this section that no rent is paid ; for in the next section (8), which provides for the case of a tenant from year to year, or other period, without any lease in writing, the right is first to accrue at the determination of the first of such years, or at the last time when any rent payable shall have been received {icliich shall last happen) ; and see s. 35. Where a tenant originally at will continues in possession, paying a yearly rent, a tenancy from j'ear to year would in most cases be created. In Pope v. Garland, 4 You. & Coll. 309, Alder- son, B., said that a tenant at will at a yearly rent is a tenant from year to year. WHEN TENANCY AT WILL ENDS. 55 no mortgagor or cestui que trust shall be deemed to be a tenant at will within the meaning of this clause to his mortgagee or trustee ioc), and which proviso has been held to apply only to express trusts (j/). The words, " within the meaning of this clause," should not be lost sight of, for the provision is not that no mortgagor or cestui que trust shall be deemed to be a tenant at will to his mortgagee or trustee, but that none shall be deemed such within this provision ; and therefore, as we have already seen, a cestui que trust has been held still to be a tenant at will to his trustee under the general provision in this act (sect. 2 and 3), and time will not run until the tenancy is regularly determined {z). 48. In this section, as we have seen, the word rent is used in the sense of rentcharge only: the words are, " where a person shall be in possession, or in receipt of any rent as tenant at will." Now a tenant at will of land out of which a rent is reserved cannot by any possibility of language be said to be in receipt of that rent which he pays\ he cannot be tenant at will of the land, and of the rent also : indeed no one can be said to be tenant of or to have any estate in the rent reserved by a lease {a). 49. In Doe v. Carter (&), Patteson, J., doubted whether there can now be a continuous tenant at will. There maybe a new one every year. The statute, s. 7, considers tenancy at will as determining at the end {x) Sec. 7. Doe v. Thompson, 5 {y') See 4 Mann. & Gr. 32, Adol. & Ell. 532 ; Doe v. Thomp- {■:) Garrard v. Tuck, Com. son, 6 Adol. & Ell. 721 ; Doe v. Ben. Rep. 231 ; vide supra, p. 38. Rock, 4 Mann. & Gran. 30; and (a) Doe v. Angell, 9 Adol. & see 10 Adol. & Ell. N. S. 132, Ell. N. S. 355, 35G ; per Curiam. 133. (i) 9 Adol. & Ell. N. S. 867. d4 56 EFFECT OF TOSSESSION of Olio year after its commencement. To this it was answered from the bar that that Mas for the pur])ose of the twenty years' limitation ; but the learned Judge said that it seemed to be for all purposes. The pro- vision, however, can hardly be deemed a general one. Mortgagors and cestuis que trust, as we have seen, are expressly excepted out of it ; but in other cases the true construction appears to be, that as regards the bar created by the statute, the section gives a right of entry at the determination of the tenancy at will at any time within a year after its commencement, l)ut at all events, at the expiration of a year from its com- mencement (c). Mr. Justice Pattcson observed, in a previous case, that if a new tenancy is to be inferred from the mere holding of a tenant at will, the statute never could apply at all as to cases of tenancy at will (d); but it would be a question for a jury, whether tlie parties had by a fresh agreement, express or im- plied, created a new tenancy at will (e). 50. It was attempted under this section to maintain that a tenant at will who had been twenty years in possession, but whose possession had determined by his death before the act passed, had acquired the fee by force of the act, so that his heir could recover in ejectment against a person having no title (the widow of the tenant at will) ; but this was overruled (f), althouoh it was admitted tliat the case would have been quite different if the tenant at will had continued in possession. (c) See .5 Adol. & Ell. N. S. (c) Doe v. Turner, 7 Mees. & 771 ; 9 Adol. & Ell. N. S. Wtls. 22G ; 9 Mees. & Wels. 6^0. 660. (/) Doe V. Thompson, G Adol. (d) 9 Adol. & Ell. N. S. & Ell. 721 ; Doe v. Page, 6 Adol, 658. & Ell. N. S. 707. BY TENANT AT WILL. 57 51. The provision is a general and continuing one, and is not confined to cases existing at tlio time the act passed, although it applies to them. A continual possession, therefore, by a tenant at will, partly before and partly since the act, or Avholly after the act, will, if it endure twenty-one years after its commencement, vest the fee-simple in the tenant at will, for the remedy of the owner will not only be barred, but his estate ex- tinguished. 52. Although the seventh section is not retrospect tive (g\ yet it applies where there has been no express act done to determine the tenancy at will up to the time of passing the statute. Therefore where the jury found that a man's daughter and her husband, who had occupied his property without paying any rent (I) for upwards of thirty years, including the period when the statute passed, held as tenants at will, and not adversely, this M'as held to be a bar by the seventh section, coupled with the second ; and as neither the owner nor his de- visee availed himself of the five years allowed in such a case by the statute, the right was barred (A). 53. And where a purchaser of the fee not having paid all the purchase money, was let into possession, and therefore became tenant at will to the seller, and he let his son into possession as tenant at will without paying any rent, and the son died within twenty-one years of his entry, and his wife entered and occupied till the expiration of twenty-one years from her 1ms- {g) Doe V. Page, 5 Adol. & Ell. (A) Doe v. Moore, 9Adol. & Ell. N. S. 767 ; Doe v. Bold, 11 Adol. N. S. 555 ; see Doe v. Groves, 10 ik Ell. N. S. 127. Adol. & Ell. N. S. 48G. (I) The father himself paid the taxes, but this was not held to vary the case, 9 Adol. & Ell. N. S. 561. 58 EFFECT OF POSSESSION AND TRANSFERS band's entry, it was held tliat the right of the father, the purchaser, was barred, for a tenant at will may create a tenancy at will as against himself; and it was ruled that this tenancy in his son was not affected by a subsequent conveyance of the fee to the father, nor by a mortgage afterwards by the father, of which the mortgagee had not given any notice to the tenant, although of course his own estate at will was deter- mined (i). 54. But in a like case, where a husband had occu- pied for eighteen years, and his wife for thirteen years after his death, and being dispossessed she brought ejectment, it was held that she could not recov.er, because her husband's possession allowed prima facie a seisin in fee, and as he left children her title was defeated (k). 55. So where a purchaser was let into possession without a conveyance or payment of the purchase money, and was considered to be tenant at will to the sellers, and he built and agreed to sell to a third person, but continued in possession for several years, and died leaving a widow, to whom he devised all his real estate, and she entered and received the rents for fifteen years and then died, and the contest was between her de- visees and the devisee of the sub-purchaser, who twenty- two years after that purchase had obtained a convey- ance of the fee fi*om the original sellers — the ejectment was brought by the devisee claiming under such con- veyance exactly twenty years after the burial [it did not appear when he died] of the first purchaser. The jury found that no tenancy at will had beeti created be- (i) Doe '(?. Carter, Adol. & Ell. (l) Doe v. Baraard, 9 Adol. N. S. 863. & Ell. N. S. 868, n. BY TENANT AT WILL. 59 tween the original sellers and the widow qf^ the first purchaser, and it was lield that this was correct ; for in order to constitute a tenancy at will something must be done by the lessor, and there was no evidence to show that she claimed under her husband, consequently the ejectment was too late. The widow's entry, there- fore, was not considered as a continuation of the tenancy at will which existed between the sellers and her husband ; she therefore held as against and not under them. And it was held, that although by the rule of equity a vendor is a trustee for the j^urehaser, yet this case was not that of a trust within the proviso in the 7th section, which does not apply to constructive trusts {I). 56. "Where the tenancy at will is by the act of the landlord converted into a tenancy by sufferance, still the twenty years must be computed from the expira- tion of the first year after the commencement of the original tenancy at will ; but if a new tenancy at will be created between the parties, then the twenty years will be calculated from the expiration of the first year of such new tenancy {m). 57. If there was a tenant at will who paid the rent up to the time of the reversioner's death, and the re- versioner devised to A, for life, remainder to B., B. might maintain ejectment on ^.'s death, although no rent was paid during J..'s life(w). 58. As we have already seen, a man's acts during his occupation may amount to an acknowledgment that he is tenant at will, and therefore where a stepfather {I) Doe V. Rock, 4 Mann. & Doe iJ. Carter, 9 Add. & Ell. N. S. Gran. .30. 803. (m) Doe V. Turner, 7 Mees. & (w) Per Patteson, J., 9 Add, & Wels. 226 ; 9 Mees. & Wels. 643 ; Ell. N. S. 657. 60 WHEN TENANCY BY PAROL ENDS. occupied for tw(Mit}' years as ai)parent oAvncr, but the stepson, the real owner, went now and then and lived with him, it was ruled that this submission showed that he held as tenant at Avill during the whole of the period (o) . 59. In a case before referred to, where a man's daughter and her husband were tenants at will under him without rent, and twenty years had elapsed, but the father-in-law after the statute, but before the five years allowed by section 15 had elapsed, devised the land to his daughter for life, with remainder to another in fee, and gave to his daughter an annuity charged on another estate, although the five years had not elapsed at the father's death, and tlie son-in-law received the annuity, it was held in ejectment after the daughter's death, by the devisee in remainder, that the wife could not be taken to have entered within the five years as against her own husband, and to have clothed herself with the life estate under the will, and that her hus- band could rely on his occupation under the tenancy at will, and was not precluded by his receipt of the annuity (p). 60, When any person is in possession or in receipt of the profits of any land, or in receipt of any rent as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims to make an entry or distress, or to bring an action to re- cover such land or rent, will be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent ])ay- (o) Doe V. Groves, 10 Adol. & (/») Doe i\ Moore, 1) Adol. & Ell. N. S. 486, sujmi, pi. 18, p. 20. Ell. N. S. 565, supra, pi. 62, p. 67- WHEN TENANCY BY PAROL ENDS. 61 able ill respect of such tenancy shall have been received (which shall last happen) (q). The great distinction between this section and section 9 should be kept in view. 61. In this the 8th section, the sense of rentcharge only must be given to the Mord rent in the earlier part of the section, but at the close of it the word is mani- festly used in the other sense, viz. that of rent re- served, the vrords being, " or at the last time when any re?it payable in respect of such tenancy shall have been received " (r). This section is retrospective, and the effect of the act is to make a parliamentary con- veyance of the land to the person in possession after the period of twenty years has elapsed (s). 62. A rent service (not pecuniary), e. g, sweeping out a parish church, is within this section (/). But keeping a grindstone on land for the use of the parish- ioners is not a rent within the statute, and therefore the person holding the land may maintain his title to it under the statute, although he has kept the grindstone which has been used by the parishioners (zf). 63. By the statute of frauds a lease by parol cannot exceed three years ; but where a tenant from year to year continues in possession paying rent, a new tenancy springs up every year, and the lessor's right under this 8tli section is renewed accordingly (,r). A parol ad- mission by a party that he is paying rent is binding {q) Sec. 8. Billett, 7 Adol. & Ell. N. S. 976, (r) Per Curiam, 9 Adol. & Ell. 983. N. S. 336. {u) Doe «?. Hinde, 2 Mood. & (s) Doe V. Sumner, 14 Mees. & Rob. 441 ; see 7 Adol. & Ell. N. Wels. 39 ; see 9 Adol. & Ell. N. S. S. 978. Denman, C. J., had ruled 369. that the keeping of the grindstone {t) Doe v. Benhani, Doe v- was a rent. {x) Tomking^. Lawrence, 8 Car. & Pay. 729. 62 EFFECT OF PAYMENT OF RENT TO within this section, and the ease does not fall within the 14th section iy). 64. And when any person is in possession or in receipt of the profits of any land, or in receipt of any rent [charge] by virtue of a lease in writing, by which a rent amounting to the yearly sum of 20 s. or upwards shall be reserved (I), and the rent reserved by such lease shall have been received by some person wrong- fully claiming to he entitled to such land or rent [charge] in reversion immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease shall afterwards have been made to the person rightfully entitled thereto, the right of the person entitled to such land or rent [charge] sub- ject to such lease, or of the person through Avhom he claims, to make an entry or distress or to bring an action after the determination of such lease, will be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claimmg as aforesaid ; and no (j/) Doe V. Beckett, 4 Adol. & Ell. N. S. 601. (I) Anotlier rule is, that in case of a lease, adverse possession so as to bar the reversioner does not commence till the expiration of the term. Where rent is reserved on a lease, we consider it more reasonable that the limitation should run from the time when the rent began to be received by a person claiming adversely, so that there shall not be a new period of limitation from the expiration of the temi. The receipt of rents and profits is ecjuivalent to the occupation of the soil ; the person who is in receipt of them can do nothing more to establish his right, and the person to whom they are denied is virtually dispossessed. Where no rent, or only a nominal rent, is reserved, tery slight neglige7ice can be imputed to the reversioner in merely not requiring a recognition of his title from the tenant; and in such cases, till the expiration of the lease, we think there should not be a commencement of adverse possession to bar the land- lord. Any rent less than 20 5. a year may, for this purpose, be con- sidered nominal. 1st Report on Real Property. WRONGFUL CLAIMANT BY TENANT UNDER LEASE. 63 such right will be deemed to have first accrued upon the determination of such lease to the person rightfully entitled (z) (I). Here therefore the time runs from the period at which the rent was first so received by the person wrongfully claiming as aforesaid ; but to give effect to a payment to a wrongful claimant, it is neces- sary that he should be a person wrongfully claiming " to be entitled to the land or rentcharge in reversion immediately expectant upon such lease," and also that no payment should afterwards have been made to the person rightfully entitled thereto. Q^. If my tenant under a lease paid to a stranger, I might, under the old law, treat that as a forfeiture, or wait till the lease expired ; but now, by section 9, payment to any other is an adverse possession by such other, and if I wait I lose my action {a). In this section the word " rent " is used seven times. The first time it means rentcharge; the second and third, rent reserved; the fourth, rentcharge; the fifth, rent reserved ; the sixth, rentcharge ; the seventh, rent reserved (b). This section is retrospective (c). 66. In e.vparte Jones {d), it was contended upon the construction of this section, that there was no adverse possession in a lease except by adverse payment of rent ; but the Lord Chief Baron said that, in his opinion, if a landlord granted a lease subject to rent, and the party paid no rent, that would be adverse possession as well {s) Sect. 9 ; see Doe v. Oxenliam, {b) Id. 856 ; per Lord Denman, 7 Mees. & Wels. 1 31, supra, pi. 40, C. J. p. 47. (c) Id. 359, (o) 9 Adol.&Ell. N. S.341; Pe>- [d) 4 You. & CoU. 466. Patteson, J. ; see p. 349, 358, 359. (I) The Avords in the text between crotchets are said to give the true meaning of the section ; 9 Adol. & Ell. N, S, 356, 357. 64 RENDER OF MINES IN SPECIE. as if the lessee paid rent to another person ; but he added, that where no rent was reserved the statute wouhl not apply. The non-payment of rent under a lease however does not, as we have seen, operate adversely : such is not the old law, and there iy no such enactment in the statute. It has accordingly been held that the right to recover possession of land subject to a lease accrues not from the time when any person dealing with the leases, or dealing with those who are entitled to the leases, gets possession and claims to be entitled in fee, but from the time when the person claiming under a lease pays rent to a party claiming wrongfully in reversion immediately expectant upon such lease, for then the adverse title of the person who receives the rent under such circumstances is first really brought into operation against the party who claims on the expiration of the lease (e). When the rent is thus paid to a person receiving it wrongfully the time begins to run, and no right first accrues upon the determination of the lease by the express words of the statute {f). Where the rent is simply not paid, we have seen that the lessor's right to recover the land within 20 years after the determination of the lease is not barred {g) . Q7. Where the render for mines is in specie, the time runs from the last receipt of the produce, and not from the time of converting it (Ji). 68. Where a man purchased, subject to a long lease at 4 /. per annum, and also subject to an annuity of 4 /., (e) Chadwick v. Broadwood, 3 (g) Doe v. Oxenham, 7 Mces. & Beav. 808. Wels. 13] ; CrosLie v. Siigrue, i) (/) Doe V. Augell, 9 Add. & Ir. Law Rep. 17. Ell. N. S. 828 ; Grant V. Ellis, 9 (//) Denys v. Shuckburgli, 4 Mees. & Wels. 118. You. & Coll. 42. PAYMENT OF RENT TO AN ANNUITANT. G5 and had not received the rent or been in possession for twenty years, but the tenant had every year paid the annuity to the annuitant, the latter insisted that the payment was a payment of rent to liim, and that it showed that he hehl adversely to the landlord ; but the jury, under the direction of the Judge, and with the approbation of the Court above, found a verdict in ejectment for the latter, on the ground that the ])ay- ment was in consequence of an arrangement that the tenant should pay tlie annuity due from the landlord, instead of paying the same sum to the latter as rent, although there was no evidence to that eifect (i). It is a point which perhaps ought not to have been con- sidered open to doubt, for although in a certain sense the rent was paid to the annuitant, yet that w^as to prevent circuity of payment, and the annuitant who received his precise annuity could not repudiate his rightful claim, and simply because the rent was of the same amount, — for which very reason the payment to him was made directly by the tenant, — change his character, and insist that he filled that of landlord, and that the payment to him was the evidence of it. 69. Where tlie payment of rent within twenty years is proved against the tenant to the lessor, though a person claiming under the lessee is in jiossession, and has paid no rent, that is immaterial, for an under- tenant cannot bo permitted to dispute a title Avhich is valid against the person of whom he holds (j). 70. No person is to be deemed to have been in pos- session within the meaning of this act, merely by reason (i) Doo V. Gopsall, 4 Adol. & (j) Doe v. Beckett, 4 Adol. & Ell. N. S. C03, n.; 5 Jur. 170, Ell. N. S. OOl. noui. Doe v. Godsill. B 66 WHERE ALL THE JOINT TENANTS, COPARCENERS, of having made an entry (A) ; and continual or other claim is, as we have seen, no longer operative (/). 71. And when one or more of several persons en- titled to any land or rent, as coparceners, joint tenants or tenants in common, have been in possession or receipt of the entireli/ or more than his or their undivided share or shares of such land, or of the profits thereof, or of such rent for his or their own benefit, or for the benefit of any person or i)ersons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receij^t of or by such last -mentioned person or persons (771). This sets at rest an important point constantly arising be- tween such owners, and it operates by relation back from the first commencement of the separate posses- sion {n) ; and although the legal estate is vested in a trustee for several persons as tenants in common, yet if some have been for twenty years in the possession of the whole, or received the profits thereof, through their agent, and the trustee has taken no step, that would constitute a clear title under the statute to the whole in the persons who have thus enjoyed the property (0) ; and now an entry by one coparcener is not an entry of both, for the statute makes the possession of one co- parcener no longer the possession of the other (p). 72. Where under certain settlements two persons {k) Sec. 10. sell, 3 Yoxi. & Coll. G17 : see 16 \l) Sec. 11. Mees. & Wels. 712. (»i) Sec. 12. {o) Burroughs v. M'Creight, 1 {n) Culley v. Taj-^lerson, 3 Per. Jo. & Lat. 200. &Dav. .530; 11 Adol. & Ell. (;>) Doe w. WoodrofFe, 10 Mees. 1008 ; Doe v. Ilorrocks, 1 Car. & & Wels. G08 ; 15 Mees. & Wels. Kir. 566; Burroughs v. M'Creight, 769 ; 2 H. of L. Cas. 81 1. 1 Jones & Lat. 290 ; cz 2)ar(e Ila- OR TENANTS IN COMMON, ARE NOT IN POSSESSION. 67 had each an equitable interest in a separate but not divided one-fourth of some mines, and the interest of one in her one-fonrth ceased on the death of a third persofi, and went over to the owner of the other one- fourth, but she had another one-fourth in another right, and continued in receipt of the produce of her own and of the settled one-fourth, that is, of two-fourths, just as if her interest in one had not ceased, and her co- tenant in common continued to receive the produce of his original one-fourth only, and this arose from mis- take, and not from arrangement or from fraud, it was held that this was not an adverse possession of the one- fourth share which had gone over, unless it could be contended that every tenant in common receiving more than his share must be considered as in adverse pos- session of the surjilus so received by him ; but this could not be maintained. Both parties had a right to receive, and did during all the time receive, a share in the rents and profits as tenants in common. Then the case fell expressly within the statute of Anne, which gives in such cases an action of account against the co-tenant in common who has received more than his share ; and when an action of account will lie, a bill for an accomit may be sustained, but the equitable relief, it was held, must be governed by the rule given by the statute at law as its guide (q). But although this case, having regard to the extent of the relief given and the circumstances, seems to have been rightly decided, yet it should be kept in view that the statute expressly provides a bar where one tenant in common has been in possession or receipt of the entirety, or (?) Denys v. Shuckburgh, 4 You. & Coll. 42. E 2 GS POSSESSION BY YOUNGER BROTHER, ETC. more than his undivided share of the land, or of the 2)rofits thereof, for his own benefit. 73. And tlie possession or receipt by the younger bro- ther or other relation of the heir, is not to be deemed the possession or receipt of the heir himself (?•). 74. But when any ackuowledgmvnt of the title of the person entitled to any land or rent has been given to him or his agent in luriting signed by the person in possession or in receipt of the profits of such land, or in receipt of such rent, then such possession or receipt of or by the person by lohom such acknoioledgmcnt has been given ivill be deemed to have been the 2)os- session or receipt of or hy the person to whom or to ivhose agent such acknowledgment has been given at the time of giving the same, and the right of such last- mentioned ])erson, or any person claiming through him, to make an entry or distress or bring an action to recover such land or rent will be deemed to have first accrued at the time at Avliich such acknowledgment, or the last of such acknowledgments was given (s). 75. It is for the Judge and not for the jury to decide whether a writing amounts to an acknowledgment of title within the statute (/). A letter written in answer to a claim for rent, which in effect is an admission that rent was due, Avill be an acknowledgment of the title of ilie claimant (w). Jf two parties are dealing (r) Sec. 13 ; Scott i\ Nixon, 3 Cloncurry's case, 3 Jo. & Lat. Dru. & War. 883. 637. (s) Sec. 14; see Doe v. Ed- (t) Doe ?). Edmonds, G Mces. & monda, 6 Mces. & Wels. 295 ; Do Wels. 295, where, at the trial, the Beauvoir ». Owen, 6 Exch. Reii. question had l)efn left to the jury ; 173. As to an acknowledgment and see 1 Dru. & War. 290. of a jud;^ment debt in Ireland, (u) Fur.sdon v. Clegg, 10 Mees. after 8 Geo. 1, c. 4, and before.tho ^' Wels. 572 ; sec the cases on ss, 3 is. 4. Will. 4, c. 27 ; see Lord 28, 40, and 42. ACKNOWLEDGMENT OF TITLE. 69 witli each other, the one claiiuirig a right to the property and the other only an iucumbrance on it, the incumbrancer cannot bo heard to say that an acknow- ledgment contained in a correspondence between them is not binding- on him, in case some third person were to make a claim to the property (y). Deeds accepted by a grantee may be evidence that he claims under and not against the grantor ; they may amount to a direct acknowledgment of the grantor's title, so as to prevent the grantee's title from being adverse (c?'). The ac- knowledgment is expressly required to be in writing (y), signed by the person in possession or in receipt of the profits, but it may be given to the person entitled, or his agent (I). But a parol admission by a person that he is paying rent to another, and by the person in possession that he is tenant to the person making the (v) Incorporated Society 2J. Ri- (.«) Lewis ». Thomas, 3 Hare, 26. cliards, 1 Dru. & "War. 290. (y) lnc.Soc.v.Iiic\iavds,uhisup. (I) Section 14, relating to acknowledgment of title, requires the ac- knowledgment to be given to the person entitled, or his agent, in writing, signed by the person in possession or in receipt of the profits. Section 28 bars the right to redeem after 20 years' possession by the mortgagee, unless in the meantime an acknowledgment of title shall have been given to the mortgagor, or some person claiming his estate, or to his agent, in writing, signed by the mortgagee, or the person claiming through him. Section 40, relating to charges ujion land, &c., gives effect to au acknowledgment of the right given in writing signed by the person l)y whom the same shall be payable, or his agent, to the person entitled thereto, or his agent. And section 42, relating to arrears of rent or interest, in like manner gives effect to an acknowledgment of the same in writing given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent. In all four cases, tliereforo, the acknowledgment is binding if given to the party entitled, or his agent ; but an acknowledgment of title or of a right to redeem cannot be given by an agent, whilst in the cases of inoney charges, and of arrears of rent or interest, an acknowledgment by an E 3 70 ACKNOWLEDGMENT OV TITLE. admission, may be relied on, without Laving resort to this section of the act (2) (1). 70. It is provided by the act that when no such acknowledgment shall have been given before the passing of tlie act, and the possession or receipt of the profits of the land, or the recei})t of the rent, shall not at the time of the passing of the act have been adverse to the right or title of the person claiming to be entitled thereto, then such person, or the person claiming through him, may, notwithstanding the period of twenty years before limited shall have expired, make an entry or distress or bring an action to recover such land or interest (which word interest, which is in the Parliament Roll, appears to be a mistake for rent) («), at any time within five years next after the passing of the act (3), which provision, although very (s) Doe V. Beckett, 4 AdoL & parte Hasell, 3 You. & Coll. 617 ; Ell. N. S. 601. Holmes v. Newlantls, 11 Adol. & (a) Doe V. Angell, 9 Adol. & Ell. 44 ; 3 Adol. & Ell. N.S. 079; Ell, N. S. 860. 3 Per. &: Dav. 128 ; Culley v. Tay- (b) Sec. 15 ; see Doe t'. Tliomp- lerson, 3 Per. & Dav. 539; 11 son, 5 Adol. & Ell. 532 ; Doe v. Adol. & Ell. 1008 ; O'Sullivan v. Williams, ib. 201 ; Doe v. Thomp- M'Swiney, 1 Long. & Town. Ill ; son, Adol. & J:11. 721 ; Nepean v. Wrixon v. Vize, 3 Dm. & War. Doe, 2 Mees. & Wels. 894; ex 104. affent will be effectual. See ss. 28, 40, 42, hifra. Lord Tenterden's Act, 9 Geo. 4, s. 1, required the acknowledgment to h^ signed by the party chargeable thereby ; and it was held that an acknowledgment signed by an agent was inoperative : Hyde v. Johnson, 2 Bing. N. C. 776 ; see Grenfell v. Girdlestoue, 2 You. Sc Coll. 676. ' (I) In Howcutt V. Bonscr, 3 Excheq. Rep. 491, a recital of a mortgage in a deed to which the mortgagee was not a party was held not to be necessarily an acknowledgment of the debt Avithin the 5th section of 3 & 4 Will. 4, c. 42. The recital would be quite true, even though the mortgagee should have been in possession of the property, and should out of the rents have satisfied himself, his debt and interest. A trust in the deed to pay off all mortgages was held to amount to nothing, having no reference to any particular mortgage. SAVINGS OF DISABILITIES. 71 materia] to the right iiiulerstanding of the act, has now ceased by the lapse of the five years to have any direct oj^eration. 11. Of savings in cases of disabilities. 11 . If at the time at wliich the right of any person to make an entry or distress, or bring an action to recover any land or rent first accrues as aforesaid, such person is under any of the disabilities hereinafter men- tioned (that is to say,) infancy, coverture, idiocy, lunacy (c), unsoundness of mind, or absence beyond seas, then such person, or the person claiming through him, may, notwithstanding the period of twenty years before limited has expired, make an entry or distress, or bring an action to recover such land or rent at anv time within ten years next after tlie time at which the person to whom such right first accrued as aforesaid ceased to be under any such disability, or died (which shall have first happened) {d). 78. But no entry, distress or action can be made or brought by any person who at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent first accrued, shall be under any of the disabilities before mentioned, or by any person claiming through him, but within forty years next after the time at which such right first accrued, although tlie person under disability at such time has remained under one or more such disabihties during the whole of such forty years, or although the term of ten years from the time at which he ceased to be under any such disability, or died, has not ex- pired (e) ; nor although the person under a disability (c) See Fulton v. Creagli, 3 Jo. (c) Sec. 17 ; Doe v. Bramstoii, & Lat. 329 ; 3 You. & Coll. G20. 3 Add. tSc Ell. C3 ; infra, s. 4 ; (rf) Sec. 16. Fulton v, Creagh, 3 Jo. & Lat. 329. e4 /2 SAVINGS OF dies Avithout having- ceased to be under sucli disability, is any time beyond tlie period of twenty years, or the period of ten years, to be avowed by reason of any disability of any other person ( /) ; or, in other words, a succession of disabilities does not extend the time (I). 79. We have already seen that in the case of a rent- cliarge or the like, the time runs, under the 2d section and the first clause of the 3d section, from tlie last time when the rent v.as received, and not from the period when the rent could have been distrained for. Against this construction, the 16th section, which we are noAv considering, which saves the rights of persons under disabilities, was relied upon. In considering this ol)jection, the Court observed that the clause was made to operate only where the party intended to be protected was under disability at the time when the right to make the distress or bring the action first ac- crued ; and if this were held to be the time when the last payment \\as made, the protection would in many cases be wholly illusor}^ Put the case, for instance, of a party regularly receiving his rent up to a given (lay, and becoming lunatic before the next day of pay- ment arrives, if he should by reason of his lunacy omit (/) Sec. 18. (I) Section 18 enacts, that ^vllen any person shall be tinder any of the disabilities before nicntionod at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the said period often years next after the time at which such person shall have died, shall be allowed by reason of the disability of any other person. DISABILITIES. 73 to enforce payment of his rent for twenty years, it would seem on all principle that he must have been intended to be protected ; but certainly, as he was not under disability at the last time of payment, he would not come within the protection of the 16th section. Many other similar cases might be pointed out. Tliis was no doubt a very serious defect, and would afford strong grounds for adopting any reasonable construc- tion of the 3d section, by which it might be remedied. But no construction Avould have that result ; for even if by a forced and difficult construction of the sixth {g) branch of the section, they were to hold that the point of time there designated was not the last actual pay- ment, but the time Mdien the rent first fell in arrear, yet the very same difficulty would exist in all the other cases pointed out by the statute, namely, the case of a person dying seised, and leaving an heir not under disabilities, but who should become disabled before any rent has accrued due ; and the case of a person claiming under a settlement, who may be a feme sole when her title accrues, but may be under coverture before she has any title to distrain or sue for rent ; and so as to the other cases provided for by the 3d section. The same thing might be said of the 8tli section. For these reasons, though the Judges of the Court of Exchequer were fully sensible of the incon- gruities of the case, yet they felt bound to act on the plain and natural construction of the language of the 3d section (//). The decision, it will be observed, turned wholly on the 3d section, and the IGtli section was only relied upon in argument with a view to the {g) The section referred to is tlie thii-d, and the branch of it intended to be referred to is the first, and not the sixth. (/i) Owen V. De Beauvoir, 16 Mees. & Wels. 667, 668, 74 SAVINGS OF true construction of the Ibrmer section. lu the Ex- chequer Chamber this flecision Avas affirmed ; and referring to the objection raised on the 16th section, that Court observed that the inconvenience of a per- son coming under any disability after the receijit of rent, and before the riglit of action, &-c. accrued, was strongly pressed, and was indeed more substantial [than the objection on the 3d clause] ; but it was to be observed, that the Legislature in passing this act had in a much more imjiortant instance (?) left the rights of persons under disability unprotected, inasmuch as section 42, which bars the recovery of arrears after six years, had no proviso in favour of such persons. The circumstance therefore of their not being perfectly jDrotected by the 16th section did not afford a ground for presuming against a construction which involved that consequence (/). 80. Tn the course of the argument in the Exchequer, Alderson, B., observed, that if they took the literal and plain construction of section 2, they should escape from the difficulties in which section 3 would plunge the case with reference to the savings for disabilities {k). It is much to be regretted that this view was not adopted. In favour of the clear intention, this con- struction seems to have been open to the Court. If a case within the 2d section should not fall Avithin the 3d, there clearly the 16th section would operate only from the time at which the right to make an entry or distress or to bring an action first accrued. The words do not seem to be too powerful to be struggled with where the case is within both the 2d and 3d {i) De Beauvoir v. Owen, 5 Exch. Rep. 182. {k) 16 Mees. & Wels. 661. DISABILITIES. 75 sections. In such cases the 3d section prescrihcs the period when the right shall be deemed to have first accrued, in order to fix the time when the 20 years' bar shall commence, and that would still operate in the given case, although the 16th section should receive a limited construction. Now the 2d section forbids any person to prosecute his right but within 20 years after the time at which the right to enter, distrain, or sue shall have first accrued. Leaving therefore the 3d section to provide in certain but not in all cases when the 20 years shall begin to run, we may pass on to the 16tli section, which enacts, that if at the time at which the right of any person to make an entry, &c. " shall have first accrued as aforesaid," such person shall have been under any of the disabilities enumerated, he may, notwithstanding the 20 years shall have expired, prosecute his right within 1 years after he shall have ceased to be under a disability, &c. Now here the time spoken of is not with reference to the time allowed, but with reference to the incapacity of the person entitled at the time at which his right to make an entry or distress, or to sue, first accrued as aforesaid. Why should not this refer, as it was no doubt intended to do, to what it expresses, the time when his right to enter, &c., first accrued, or in other words, to the 2d section, instead of to a period when he had no such right, which is arbitrarily appointed by the 3d section for a distinct object. Omitting altogether the 3d section, the construction would admit of no doubt. Leaving to that section its manifest object to operate upon, still the construction would not be open to any serious difficulty. As there are cases within the 2d section which are held not to be within the 3d section, 70 PLACES NOT BEYOND SEAS. SO tlicre may be cases within the latter section as far as its i)rofessecl object is concerned and yet not governed by it, \Yliere a contrary intention can be collected from the context of the act, and no actual violence is done to the words. It is observable that the subsequent sections 17 and 18 both speak generally " of the per- son who at the time at which his ri"ht to make an entry, &c., first accrued " shall be under any of the dis- abilities before mentioned. If the Courts should feel themselves at libert}^ to adopt this construction when the point calls for a decision, not only would the inten- tion of the legislature be effected and a real protection be afforded to persons under disabilities, but the i6th 17th, and 18th sections w^ould in all cases have the same operation instead of having different o])erations, accord- ing as a case may be within both sections 2 and 3, or within the former and not within the latter. 81. No part of Great Britain and Ireland, nor the islands of Man, Guernsey, Jersey, Alderney, or Sark, nor any island adjoining to any of them (being part of the dominions of the Crown),, is to be deemed to be beyond seas Avithin the meaning of the act (/). 82. It seems to have been held that this provision is applicable to cases of residence in Ireland before the passing of the act, where the controversy arises subse- quently to the act (m). 83. The provision in section 20 should be ke])t in view, because it bears upon all the im})ortant sections already considered. Where the right to an estate in possession is barred, the right of the same person to any other interest is also barred, unless in tlie meantime some person entitled to an estate limited after the (0 Sec. 19. (m) Ex parte Ilasell, 3 You. & Coll. 617. SEVERAL RIGHTS IN SAME PERSON BARRED. 77 estate in possession shall have recovered (n). The enactment applies only to sucli other estate, interest, right, or possibility, whether in reversion, remainder, or otherwise as the person barred shall be entitled to at any time during the period required to bar the estate in possession, so that no interest acquired after that bar has taken effect would be affected. Of course the in- terest recovered by another person which would prevent the bar, must necessarily be an estate intervening between the estate in possession and the estate in remainder, &-c., of the person whose estate in possession has at all events been barred. (w) Svpra, pi. 87. SECTION IV. OF ADVERSE POSSESSION. 1. Report of commissioners. 2.'\Doev. Williams: ivliat is ad- S. j verse possession. . (Doe V. Bramston : husband jind _ < ivife out of posscssio7i for I forty years, 8. Possession by tenants at will, or without lease in writing. 9. Achiowledgment of title. 10. Danger of time running ivherc possession is not adverse. 1 1 . Lease in writing. 12. Tenancies at iv'dl and at suffer- ance. 13. Rents and particular estates. 14. Forty years not a perfect bar. 15. Imperfect conveyance by husband and wife. 16. Jmnpson v. PitcJier, 1 . The real property commissioners observe in their first report («), that great i)ractical difficulty has arisen in determining what is adverse possession, and when (a) Page 47 : the last case upon adverse possession before the statute b Doe p. Millett, 11 Adol, & Ell, N. S. 1030. 78 OF ADVERSE POSSESSION. it shall be considered to have beG^uri. This must n^ene- rally, they add, be left as a question of fact for a jury ; but there are some rules of law, prwsiimptlones Juris et de jure, which absolutely prevent the possession from being considered adverse, and the expediency of which is very questionable, as they do not seem necessary for preserving' rightful claims, and they greatly impair the healing tendency of the statutes of limitation. One of these rules, they observe, is, that a possession which began rightfully cannot be considered as having become wrongful, — that is, adverse as against the rightful owner, — by being merely continued after the right of the party in possession has determined (I). It apjieared to them that it should be open to a jury to find that adverse possession began from the determination of the rightful estate of the party, 2. There is no direct provision in the act as to adverse possession, nor is the expression used except in some sections, which we shall presently consider {b), and except in the 15th section, which, as we have seen, saved for five years the right of a ]3arty existing at the time the act passed, where the possession or receipt of the profits of the land should not have been adverse to the right or title of the jjerson claiming to he entitled thereto, although tlie twenty years allowed by the act should have expired ; and several cases were saved by this provision ; the possession, although long, not having been adverse (c) . (b) Sections 80, 31, 33. Adol. & Ell. 721 ; see 9 Sim. 575 ; (c) Doe V. WiUiams, 5 Adol. & 11 Adol. & Ell. 51 ; 1 Dru. & Ell. 291; Doe v. Thompson, ib. Wa.r.289 ; ex jMrteB.aseU,8You. 532 ; and see Doe v. Thompson, G & Coll. G17. (I) This, 1 apprehend, was not the law. WHAT IS ADVERSE POSSESSION. 79 3. It was observed by Mr. Justice Pattoson, in Doe V. Williams {d) , that from the language of the 1 5tli section it plainly appears that something or other was, after the act passed, to be considered as adverse pos- session, which was not so before the act passed ; for in that section it seemed to be considered that the pos- session which, up to the passing of the act, was not adverse as the law then stood, would, by the operation of the act, become so on the very day after the act passed, and that by relation ; otherwise the provision as to the five years w^as not needed to protect the right of the party against whom such adverse possession might be set up. 4. And where a woman seised in fee in possession, married, and she and her husband continued in posses- sion for some years after the marriage, but more than forty years before the commencement of the action they left the place, and did not afterwards exercise any act of ownership, or occupy the estate, and the wife died in 1 828, and the husband in 1 832, and her eldest son brought an ejectment in 1835, it was held that he was barred by the statute (e). The Court observed, in de- livering judgment, that the fact being clear that within the terms of the 3d section of the statute, the plain- tiff's mother was dispossessed or discontinued the pos- session or receipt of the rents above forty years before the action, the action was clearly barred by the 17th section. Some argument was raised on the question whether the possession was adverse or not, but the terms of that clause are unequivocal, and one of its objects was to avoid the necessity of inquiring into (d) 5 Adol. & Ell. 207 ; and Ell. G3 ; ) Per Curiam, 3 Dm. & War. 118, 119. waste: purchase money unpaid. 99 estate, by the rigLt which he would have had if his estate had been a legal instead of an equitable one. And it was said, that if the 24th section does not extend to a legal mortgage, then it is a casus omissus out of the act ; and as the general right of a mortgagee to file a bill of foreclosure is not taken away, equity would once more adopt the legal rule by analogy (c). 3. Upon the provisions in the section under consi- deration it has been observed, that the statute intended to put an end altogether to the discretion of courts of equity in those cases in which they had before acted by analogy to the time limited at law. That was an analogy founded both in law and good sense, but it no longer remains in the discretion of the Court, but is incorporated in the statute (d). 4. A claim to compensation in equity for equitable waste falls within the provisions as to the land itself, and a suit for such compensation is subject to the like limitations : of course therefore a tenant in tail in remainder has twenty years wherein to file his bill, however long may have been the period of the life of the tenant for life subsequently to the waste (e) ; and the circumstance that there is a fund in Court, the rights in wliich have not been ascertained, may assist the claim of an equitable incumbrancer (/). 5. Where a company took common land under the provisifm of an act of Parliament, to which a title could not then be made, but did not pay the money as they ought to have done into the Court of Chancery, and (c) Wrixon v. Vize, 3 Dru. & (c) Duke of Leeds v. Lord Am- War. 104; see sect. 40, infra. herst, 2 Pliill. 117. (/) LancastemEvors, 10 Beav. (i) Bernngton v. Evan., 1 You. ^^^ . ^^^ yj^j^^^.^ ^_ ^jj^^^^ j y^^^ ^^^"•^•^'^- & Coll. N.S. 211 ;lJo.&Lat. 534. g2 100 CHARITIES BOUND BY THE ACT: CHARGES, more than thirty years elapsed before it was ascertained to what class of persons the land belonged, it was held that their right was not barred by non-claim. It was considered to be very questionable whether, as the money had not been paid, but remained in the hands of the company, any length of time would be a bar to the lawful claimant in equity, where the case starts from the proposition that the one is cestui que trust and the other trustee. There could be no laches until the person was ascertained. If, indeed, after the deter- mination of the rights of the parties, a period of twenty years had been suffered to elapse, the case Avould have been very different. If the money had been paid into the Court of Chancery, the Court would have become the trustee of the money for the parties ultimately entitled, and no one would have doubted as to their rights (^). 6. Although an estate is held for a charity, it may be barred by adverse possession (//). As to the equitable right, section 24 is quite as imperative as the enact- ment binding legal estates : no person can bring any suit but within the legal limitation. This leaves to equity no discretion. The statute deals generally with equitable rights, and treats them thus far on the footing of legal interests. Then comes the exception in sec- tion 25, which we shall presently notice. Now unless a case can be brought Avithin this saving, which operates between trustee and cestui cjue trust, it would fall within the general prohibition in section 24. For cha- rities were only saved in equity from the operation of the former statutes as trusts, although highly favoured ig) Cater v, Croydon Canal Company, 4 You. & Coll, 405. (^) Supra, sect, 3, pi. 20. FILING A bill: APPOINTMENT OF RECEIVER. 101 ones, and now all trusts are barred by section 24, unless saved by section 25, and a Judge is not at liberty to introduce an exception into the act which the legisla- ture, providing generally for all trusts, has not thought it proper to enact (/). But there must be a person to claim in order that time may run (/e), and a charge in favour of a charity may have an operation in favour of it, which would be denied to any other claim (/). 7. It has been held that filing a bill, though no sub- poena be served, is sufficient to prevent the operation of the statute (tii). 8. The appointment of a receiver by the Court does not prevent the bar under the statute against a stranger, but such an api)ointment prevents, at least in equity, time from running in favour of a stranger to the suit (ji). 9. The section Avhich we have just considered pro- vides a limited remedy for the recovery of equitable interests. There are many such interests where there is no declared trustee of the legal estate nor any trust expressed, yet the legal interest is bound by the equita- ble right : — in many cases by an implied trust, in some by the mere operation of acts of ownership by the person who may happen to have only an equitable estate. A mere wrongdoer, continuing to hold an estate to which he was entitled, cannot be considered as a trustee for anybody (p). The act proceeds to provide (?) Per Curiam, 2 Jo. & Lat. Purcell v. Blennerhassett, 3 Jo. & 195. Lat. 24 ; see Carroll v. Darcy, 10 {k) Attorney-General v. Persse, Ir. Eq. Rep. 321 ; Bennett v. Ber- 2 Dru. & War. 67. ward, id. 584 ; Morris v. Ellis, 7 (0 2 Jo. & Lat. 197, 108. Jur. 413. (»j) Boyd V. Higginson, 1 Flan. (w) Wrixon v. Vize, 3 Drn. & & Kel. 603 ; Harrison v. Duignan, War. 123. 2 Dru. & War. 295 ; Forster v. (o) Ex parto Hasell, 3 You. & Thompson, 4 Dru. & War. 303 ; ColL 617. g3 102 EXPRESS trusts: concealed frauds, for express trusts by the 25tli section. It enacts that \Yhcn any \nnd or rent is vested in a trustee upon any c.vpress trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee, or any person chiiming through him, to recover such land or rent, "vvill be deemed to have first accrued at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him (|j). 10. But in every case of a concealed fraud the right of any person to bring a suit in equity for the recovery of any land or rent which he, or any person through whom he claims, may have been deprived by such fraud, will be deemed to have first accrued at and not before the time at which such fraud shall or with rea- sonable diligence miglit have been first known or dis- covered ; but no owner of lands or rents can, under this provision, have a suit in equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents, on account of fraud, against any hondfide i)urchaser for valuable consideration who has not assisted in the commission of such fraud, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed () Sect. 25 ; see Burne v. Ro- War. 459 ; Law i\ Bagwell, 4 l)inson, 1 Diu. & Wal. 688 ; Dru. & War. 398. Thompson v, Simpson, 1 Dru. & (y) Sect. 2G. WHO IS BOUND BY THE TliUST. 103 his trustee until the trust is disturbed, and that distur- bance can only be effected by such a denial of the trust as takes place when the trustee sells to a third party for valuable consideration the property so held by Iiini in trust (?'). Therefore a trustee remaining in posses- sion never acquires possession adverse, witliin tlie meaning of the act, to the title of his cestui que trusty and if he convey to any one not for value, the same result folio vv^s (i). 12. But a case does not fall within section 25 where a man has received the rents for his own b^iefit as against the trustee as well as against the cestui que trust {t). The section is confined to suits against the trustee or any person claiming through him. A man may be a cestui que trust, and yet not be able to enforce his rights through the trustees against third persons (7i). A purchaser in possession not having paid the purchase money, is not an express trustee for the vendor within this section (.r). 13. Although the section under consideration speaks ©f an express trust, yet a trust may fall within its enactment where the trust is not in words expressly declared. Therefore where a man is made an express trustee of a term for certain purposes, and is on the face of the instrument, by the rule of equity, a trustee of the surplus, he is a trustee throughout within this section {y). What amounts to a sufficient expression (r) 4 Dm. & War. 408. {x) Toft v. Stephenson, 7 Hare, \s) 1 Jo. & Lat. 304. / 1 ; sect. 40, post. («) Burroughs v. M'Creight, 1 (j/) Salter v. Cavanagli, 1 Dru. Jo. & Lat. 290 ; Commissioners of & Wal. GG3 ; sec Attornoy-Gene" Cliar. Don. v. Wy brants, 2 Jo. & ral v. Flint, 4 Hare, li7 ; and see Lat. 191. 2 Jo. & Lat. 196, 197. (m) 4 Dru. & War. 409. g4 104 TRUST OF MONEY SECURED of a trust must depend upon the terms of the instru- ment and the rules of equity (;j). It certainly is not necessary to use the v/ord " trust" in order to (u-eate an ex])ress trust {a). 14. Where a fund has ceased to bear the character of a legr.cy and has assumed the character of a trust fund, altliough it is still vested in the executor or his representative, time will not run against the legatee under the 40th section (b). 15. This section is i)lain enough where the cestui que trust seeks to ^jecover land or rent (as explained by section 1) from his trustee (c) ; but where he seeks to recover money secured in any manner upon land or rent, his right to do which is limited by section 40, or arrears of rent, or interest of money so charged, his right to recover which is limited by section 42 (both of which sections we shall presently consider sepa- rately), great difficulty has arisen in attempting to dis- cover the true meaning of the act. For section 25 in words extends only to suits for the recovery of the land or rent itself, and neither of the sections 40 and 42 contains any reference to that previous section, or any provision for relief against a trustee. Yet it is plain that the framers of the act did not intend to keep open a remedy against a trustee of land or rent where the ccslui que trust is entitled to the very subject, and to close the door against a cestui que trust of the pro- duce of the subject however extensive his right. It is {z) Commissioners of Char. Don, Mjl. & Cra. 309 ; Rocli t). Callen, V. Wybrants, 2 Jo. & Lat. 182; G Ilarc, 635. Hunt V. Bateman, 10 Ir. Eq. Rep. (c) Commissionersof Char. Don. 8G0. V. Wybrants, 2 Jo. & Lat. 182 ; (a) See 2 Jo. & Lat. 197. see 10 Ir. Eq. Rep. 373. (i) Phillipo V. Mannings, 2 UrON LAND OR RENT. 105 possible by a liberal interpretation to bring the cases which fall directly within section 40 also within the operation of section 25, but if that cannot be accom- plished, the statute clearly does not take away the right of the ceslui que trust by any express words ; and there- fore by analogy to the provision in section 25, the same remedy would lie in equity by a cestui que trust against a trustee for any sum of money charged upon land or rent as he would have had if his right extended to the land or rent itself. The act, however, has very much embar- rassed the judicial authorities (c/), but the construction is now settled. 16. Therefore a trust by deed or will for the pay- ment of debts or portions, or the like, out of land or rent, may be enforced against a trustee under the exception in section 25 (e), or under the exception grafted upon it (/). In the case of portions secured by a term of years, for example, where they have not been raised within the time of limitation under the 40th section, yet if the term which secures them is not barred, the trustees are not prevented from raising the portions, and when raised they will hold the money as trustees for the children. In such a case between trustee and cestui que trust the statute has no application. The trustees did not hold adversely to the cestuis que trust, but for their benefit (g). (d) See 3 Ir. Eq. Rep. 81 ; 1 Ward v. Avch, 12 Sim. 472 ; Hee- Dru. & Wal. 698 ; 10 Ir. Eq. Rep. nan v. Berry, 2 Jo. & Lat. 303 ; 866, 880 ; Young v. Wilton, id. 19 ; Gough r. Bult, 16 Sim. 823 ; Hart 11 Ir. Eq. Rep. 158. v. Bateman, 10 Ir. Eq. Rep. 860 ; (e) Dillon v. Cruise, 3 Ir. Eq. Dundas v. Blake, 11 Ir. Eq. Rep. Rep. 70 ; Young v. Lord Winter- 138. park, 13 Sim. 199; 10 Jur. 1 ; see (/) See 10 Ir. Eq. Rep. 880, 10 Ir. Eq. Rep. 308 ; Blair v. Nu- 881. gent, 3 Jo. & Lat. 658 ; 9 Ir. Eq. (g) Young v. Lord Waterpark, Hep. 400 ; 10 Ir. Eq. Rep. 369 ; 13 Sim. 199 ; 10 Jur. 1. 106 LEGACIES SECURED ON LAND. 17. A trust by ^vill for the payment of debts in- cludes a judgment debt, ^vllicll may be recovered under the express trust without being affected by the later sections (//). 18. In regard to legacies, the words in the 40th section are, after providing for charges upon land, " or any legacy;" and it has been decided that the statute extends to legacies of personalty (i) ; but it has been determined that legacies out of land, although secured by express trusts, fall w^ithin the 40th section, and are not within the exception in the 25th. The learned Judge who decided this point relied upon the distinc- tions to which we have ah*eady adverted between the two sections, and he said that it would, he knew, be difficult if not impossible to establish any substantial distinction between them in reference to the operation of the statute. He said it was plain that, except through means of a trust, no legacy can be charged on real estate ; and he thoaght that if he held a legacy charged on land to be within both the 40th and the 25th sections, one of the sections must be inopera- tive (k). 19. It would seem that there is no sufficient ground to distinguish legacies from other charges, now that it is settled that the latter, although provided against by the 40th section, fall within the 25th section, where there is an express trust to raise them. And even (A) Dillon V. Cruise, 3 Ir. Eq. Lord Brougham observed that the Rep. 70. late act had settled i)eriods of limi- (i) Sheppard v. Dake, 9 Sim. tation in other cases, but there was 6G7 ; O'Hara v. Crcagh, Long. & none fixed with respect to a le- Town. Go ; Henry v. Smith, 2 Dru. gacy. & War. 881 ; tlie reporter's note, {^) Knox v. Kelly, 6 Ir. Eq. 2 Myl. & Cra. 815. In Campbell Rep. 279 ; see 10 Ir. *Eq. Rep. 366, V. Sandford, 8 Bligh. N. S. 022. 367 ; U Ir. Eq. Rep. 169. WHAT IS A CHARGE AND NOT A TRUST. 107 under that construction neither section would, as to legacies, be wholly inoperative, for legacies may be charges on land within the 40th section, and yet not be secured by an express trust within the 25th section. And accordingly in a later case (l), in which, however, the former case was not referred to, it was decided that a legacy out of land, under an express trust, was within the protection of the statute, unaffected by the later provisions. 20. A mere charge upon land for one person, or for a class, with a devise of the land, subject to the charge to another, does not create a trust in the devisee of the land so as to prevent time from running against it as a mere charge ; nor does a conveyance to a pur- chaser, subject to an incumbrance, operate further than to make him liable to it as a charge (?w). So a devise to one paying a sum to another creates a charge and not a trust, and therefore is not saved by the 25th section (/^). In these and the like cases there is an obligation imposed, but no trust created. 21. A party having an interest in remainder is en- titled to the benefit of the 25th section from the time when liis right to possession accrues (o). 22. Where a person with a present limited right (j)) claimed the fee under deeds and a will executed by the reversioner, which after the latter's death were held to be fraudulent, and to have been obtained whilst {I) Gougli {;.Bult, 16 Sim. 323; to charities, see 2 Jo. & Lat. 197, see Ward v. Arch, 12 Sim. 472. 198. (?w) Harrison I'.Duignan, 2 Dru. {n) Hodge v. Churchyard, 16 & War. 295 ; Hughes v. Kelly, 3 Sim. 71. Dru. & War. 482 ; Francis v. (o) Thompson v, Simpson, 1 Grover, 5 Hare, 39 ; Hunt v. Bate- Dru. & War. 480. man, 10 Ir. Ec[. Rep. 363 ; Dundas (;>) Blair v. Nugent, 8 Jo. & V, Blake, 11 Ir, Eq. Rep. 138 ; as Lat. 658. 108 TENANT IN COMMON: ACQUIESCENCE. the party ^vas of unsound mind ; upon a bill filed by the heir of the latter, it was held that the possession was under and not in opposition, to the title of the grantor and devisor, and it was treated as a case of concealed fraud within the meaning of the statute (y). 23. In a case (r) where a jiarty entitled to two- fourths of an estate, the right to one of which de- pended on the life of a third person, continued to receive the profits of both, whilst the co-tenant of another fourth, who was entitled also to the one- fourth which had gone over on the death of the cestui que vie, continued to receive the profits of his original one-fourth only ; it was held that this was a common mistake of the operation of the deed, but that the claimant had tlie means, Avitli proper diligence, of removing the misapprehension of fact under which he laboured ; and a court of equity, unless the mistake be clear, and the party bo without blame or neglect in not having discovered it earlier, ought, in the exer- cise of a sound discretion, to adopt the rule given by the statute as its guide (s) . 24. The act does not interfere with any rule or jurisdiction of courts of equity in refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by the act {t). Therefore where a seller of a reversion filed bis bill sixteen years after it fell into possession, to set aside the sale, without accounting for the delay, and {q) Davis i\ Thomas, 3 Hare, v/liether tlicy were sufficiently at- 26. tended to in the above case. (r) Deng's v. Shuckburgh, 4 {t) Sect. 27 ; ex parte Yi&^fM, 3 You. & Coll. 42. You. & Coll. 617; Thompson v. (s) See the terms of s. 26 ; qu. Simpson, 1 Dru. & War. 489, RIGHT OF MORTGAGOR BARRED. 109 requiring- the purchaser to prove that he gave a fair price for the estate, the bill was dismissed "with costs. It was insisted that, by analogy to the statute of limitations, the seller M^ould have twenty years after the death of the tenant for life within which he might file a bill. But the Court held that it did not follow that although a court of equity might consider itself bound for certain purposes by the statutes of limita- tion, it was bound to give relief in every case where, under analogous circumstances, the statute of limita- tions would not have applied at law. It was the duty of the Court to act upon the jDresumption which a court of justice most properly entertains against stale demands, and which could never be more applied than to a case where the burden of proof upon a most material point of controversy was thrown upon the defendant (u). 25. The existing rule as to mortgagees in possession is adopted. When a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not brinof a suit to redeem the mortoaore but within twenty years next after the time at which the mort- gagee obtained such possession or receipt, unless in the meantime an acknowledo-ment of the title of the mortgagor or of his right of redemption shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or per- son, in writing, signed by the mortgagee, or the person («) Sibbering v. Lord Balcarras, 19 Law J., N. S., 252 ; see Thompson *, Simpson, 1 Dru. & War. 489. 110 RIGHT OF MORTGAGOR BARRED. claiming through him ; and in such case no suit is to be brought but ^vithin twenty years after the time of such acknowledgment, or the last of such acknowledg- ments was given ; and where there shall be more than one mortgagor, or more than one person claiming through the morto-ao'or or morto'aa'ors, such acknow- ledgment, if given to any of such mortgagors, or his or their agent, M'ill be as effectual as if given to all ; but where there is more than one mortgagee, or more than one person claiming the estate or interest of the mort- gagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, will be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests ; and will not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the i^erson or persons entitled to any other undivided or divided part of the money or land or rent. And where such of the mortgagees or persons aforesaid as shall have given such acknowledg- ment shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors will be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money Avhich shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the MORTGAGEE TENANT FOR LIFE OF EQ. OF REDEMPTION. 1 1 1 value of the whole of the land or rent comprised in the mortgage {x). 26. If a mortgagee under a tenant for life and a remainder-man enter into possession, and time begins to run, yet if before it has run out he purchase the life estate, although there is no change of possession the remainder-man Tvill not, it seems, be barred during the life of the tenant for life. The possession, the Court observed, was not adverse. The 28th section supposes the existence of a person to whom the acknowledgment is to be made, as well as that of the party to make it : there must be not only a party to redeem, but one to be redeemed. The parties were not in the situation which the statute contemplates as creating a bar. The mortgagee became in effect the tenant for life of the equity of redemption, the remainder-man or reversioner may therefore properly look upon him as holding in that character : he would not necessarily refer his pos- session to any other title. It would be a surprise ujion the parties interested in the property after the expira- tion of the life interest if they A^ere told that the tenant for life had another and an adverse title, by means of which tliev are to be barred, and the tenant for life [of the life estate] to acquire an absolute interest (?/). 27. In a case (z) in which a mortgage was tranferred, as such, without the concurrence of the mortgagor, but which before the statute would have amounted to an acknowledgment of the subsisting equity of redemp- tion, it w'as decided that the statute destroyed the (x) Sect. 28 ; Browne v. Bishop (y) Hyde v. Dallaway, 2 Hare, of Cork, 1 Dru. & Wal. 700; 528 ; Wynne ?'. Styan, 2 Pliill. 303 ; Wrixon v. Vize, 3 Dru. & War. supra, section 3, pi. 20. 104; Batchelor i\ Middleton, G (~) Batclielov v. Middleton, 6 Hare, 75. Hare, 75, 112 TRANSFER OF mortgage: ACKNOWLEDGMENT. operation of such an acknowledgment, because the statute requires that the atlniissiou should be made to the mortg-agor himself, and by that the Court was bound, altliough it did not know why the mortgagee should not be allowed to make an admission in writino-. signed by himself, of his mortgage title to a third per- son of which the mortoao-or mav have the benefit. 28. And where a mortgagee for years in possession executed a transfer of tlie mortgage term to a person who it was recited had purchased the securities and hereditaments, subject to such right and equity of redemption as the same premises were subject to, and also assigned to the purchaser the principal and inte- rest due, and the recitals in the deed showed that the equity of redemption had not been barred, it was held by Shadwell, V. C, that the acknowledgment con- tained in the deed of the mortoao'or's title was not a sufficient acknowledgment to make the mortgaged estate redeemable after twenty years from the first entry {a). In the course of the argument the Vice- Chancellor observed that tlie words of the Act are, " to the mortgagor, or some person claiming his estate." Was not, he asked, the purchaser claiming his estate ? to which it was replied that the purchaser was claiming the estate of the mortgagee. These de- cisions appear to be fully warranted by the statute, for the acknowledgment was not within the terms of the statute, and of course before the twenty years have run out the mortgagee can only transfer his mortgage, subject to the subsisting equity of redemption ; but still the assignee takes with the benefit of the time elapsed. The frame of the deed showed that the (a) Lucas V. Dennison, 13 Sim. 58J. MORTGAGEE KEEPING ACCOUNTS. 113 assignee purchased the mortgage^ and the term it- self, as far as tlie mortgagee had power to transfer them. 29. A point has been raised, but not decided, whether the right to redeem is not kept open where the mortgagee in possession has kept accounts of the rents received by him, and otherwise treated and considered liimself as mortgagee (b) ; but this could hardly be held to supply the want of an acknow- ledgment ; for during the twenty years, prudence would require that an account should be kept, and after that period, when the right to redeem is barred, no one has a right to inquire how the owner, though formerly a mortgagee, has kept his accounts. The statute intended to put an end to such inquiries. 30. A letter set up as an acknowledgment of the mortgagor's title should be construed in the way in which the writer intended it to be construed by the person to whom it was addressed (c). Where a letter which was held to amount to such an acknowledg- ment was written h?/ a mortgagee, — who and whose father had been long in possession, and who was the owner of a moiety of the equity of redemption — to the grandfather of the infant heir, who, if the mort- gage was still redeemable, was entitled to the other moiety of the equity of redemption, subject to the grandfather's right as tenant by the curtesy, but tliis letter was one in reply to one from the grandfather, which did not appear, and the acknowledgment was confined to the infant's title ; it was held, that the question as to whether the grandfather was the in- fant's agent was, whetlier the i')arty who wrote the (i) Baker v. Wettoii, 14 SLm. 420. (c) 12 Sim. 406. H 114 LETTERS: savings: suits. letter did not treat the party to whom it was written as the agent of the child. It was not necessary to make a person an agent that he shouhl have an actual authority to act. It was quite sufficient that the grandfather acted as the agent of his grandchild, and that she, when she came of age, adopted what he had done on her behalf (d). 31. There is, it should be observed, no savings for disabilities of the mortgagor or his heirs in regard to the bar created by section 28. 32. Finally, it may under this head be observed, that as a suit in equity properly instituted will of course prevent time from running, it has been said that a court of law, now that the same rule is prescribed by the statute for both courts, should act upon that principle ; at all events equity would protect its own jurisdiction, and would not permit the suitor to be evicted at law, who had an equitable right to sue for the land, and had filed his bill within the limit allowed, and duly pursued his remedy (e). (d) Trulock v. Robey, 12 Sim. (e) 3 Dru. & War. 123, per 402 : " The letter, too, treats the Curiam ; see Flan. & Kel. 565, grandfather as agent," p. 407, hut 5GG. that was only by construction. [ ll.'^ ] SECTION VII. OF MOXEV CHARGRD ON LAND, LEGACIES, DOWER, RENT, AND INTEREST. 1. Twenty years u bar of money se- cured upon land, 6{c., or a legacy : sect. 40. 2. Rent or interest barred by s. 42. 3. Foreclosure suit not uoithin s. 40, semble. 4. Exceptions. 5. Meaning of a present right to receive. 6. Judgment creditor has a neiv right on a revivor on scire facias : not on action of debt or judgment. 7. Whether a judgment creditor'' s right is saved by a creditor's bill fled by another, to which he is not a party : Berritigton V. Evans. 8. Watson v. Birch. 9. Observations on Berrington v. Evans. 10. Opinions thereon. 11. The rule suggested. 12. Judgments affecting personal es- tate only tvithin the statute. 13. Collateral security saved by the continuance of the origiiial security : Bennett v. Cooper. 14. Charge paid off by tenant for life not barred in his life- time. 15. Must be a hand to pay and a party to receive. IG. Judgment on post obit ; time does not run until death of person. H 17. Vendor's lien barred by time, 18. Legacy out of personal estate barred by time : residue a le- gacy : subsequent assets : prior charges. 19. Remainder-marb s right tolegacy not barred during life of te- nant for life. 20. Part payment prevents the bar: effect on collateral securities. 21. Acknowledgment saves the right. 22. Acknoioledgment by trustee suf- ficient : Lord St. John v. Boughton. 23. Where letters amount to an ac- knowledgment. 24. Letter written by an ainanuensis binding : initials of writer. 25 (Schedules, affidavits, answers, „- < may amount to an acknow- ' I, ledgment. 27. Rejjort of Master not an ac- knowledgment : Hill V. Sta- well: doubted. 28. Express trust takes cases out of the 40ih section. 29. Arrears of dower recoverable for six years only : s. 41. 30. Arrears of rent, or of interest of charge or legacy for six years only : effect of posses- sioti by prior incumbrancer : s. 42. 31. Sect. 42 applies to arrears of annuity. 2 UG MONEY SECURED BY MORTGAGE, &;C. 3.3, 34, SO 87 38. 4o. 89, 40, Audio interest ofmoncj/cliargcd on land: not to tunipilc tolls. Not' to an annuitj/ hy will pay- able out of personalty ; sed qu.nere. Interest on judgments toithin 42f? section; right barred, against real estate, barred also against personalty. Section 42 operates on s. 20 of 3 Si 4 Vict. c. 105. Ex-press trusts not wit/tin s. 42. No savings in s. 42 for disabi- lities. f Judgment creditor of reinain- l der-man entitled to six years'* I arrears only. Achiowledgment of debt. Difficulty created by 3 t\ 4 W. 4, c. 42. 41. 42. 43. 44. 4o. 40. 47. 48. 49. 50. 52. Whether rents reserved by lease fall within i'Zd section ofc. 27. Opinions thereon. Rentcharge loithin both acts. Possession by former incum- brancer saves the right. Possession of judgment creditor operative. Difficulty where j)ri7icipal and interest claimed. Mortgage without covenant, wholly within A2d section of C.27. So if there is a covenant in the mortgage. Arrears of fee-farm rent: no sailing . Of claiming the benefit of the statute : pleading. 1. No action or suit, or other proceeding, can he brought to recover any money secured ])y any mort- gage, judgment, or lien, or otherwise cliarged upon or payable out of any land or rent, at law or in equity, or any legacy, but w^ithin twenty years next after a pre- sent right to receive the same has accrued to some person ca})able of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, has been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent ; and in such case, the twenty years are to run from such j^aynient or acknowledgment, or the last of such payments or acknowledgments, if more than one (a). («) Sec, 40. BARRED BY TWENTY YEARS. 117 2. The 42d section, to which our attention will pre- sently be drawn, limits the period within which arrears of rent or interest on any sum charged upon land or rent, or in resjiect of any legacy, can be recovered ; but although that section requires a separate con- sideration, yet it is so nuich mixed up with the 40th section, which relates to the jirincipal, as to render it necessary to bear it in mind whilst we are discussing the authorities on the former section. 3. This provision relates not to the land but to actions brought to recover the money ; and those ac- tions, in the case of mortgages, are either upon the covenant usually inserted in the mortgage deed or on the bond which commonly accompanies it {h) ; but still it has been held that this part of the statute may be pleaded to a bill of foreclosure, which, it is said, in effect is a proceeding for the recovery of the money secured by the mortgage (c). This, however, has not been followed, for the statute provides a remedy for the recovery of the estate, and also a remedy for the recovery of the money ; clearly so when both are pur- sued, and equally so when both the remedies are en- forced, or only one of them is enforced in equity. A foreclosure suit may lead to the payment of the money, but this is optional with the defendant ; it cannot be enforced against him. The plaintiff's right is simply to foreclose, but he can only accomplish this upon a previous condition. The right of the defendant to pay the money, whilst the only right of tlie plaintiff is to the estate discharged of the equity, can hardly bring the case within the 40th section, which applies strictly {b) See 5 Adul. & Ell. 290. 570 ; approved of in Du Vigier v. (c) Dearman v. Wyche, 9 Sim. Lee, 2 Hare, 326. H 3 118 PRESENT RIGHT TO RECEIVE THE MONEY. to an action or suit to recover the money secured by any mortgage. This right at law cannot be confounded with the right to recover the estate ; why should it in equity {d) ? 4. But the provision relates not merely to actions but also to suits or other proceedings. And it extends to money secured by mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent. The statute requires that there should be a pre- sent right to receive the money in some person capable of giving a discharge for or release of the same. And the statute says that such a claim shall not be made after twenty years, unless in the meantime some part of the money, either principal or interest, shall have been paid, or some acknowledgment in writing shall have been given. These are the only exceptions men- tioned in the act, and a Judge cannot engraft another exception on the act of Parliament (e). 5. The phraseology of the act, " a present right to receive," &c. is new, and has been considered not very precise or clear, and its true construction has much embarrassed the courts (/). This section does not say first accrued. The word " present" has been said to mean the same as if the words " then present" had been used in the section (^g). The opinion of the Judges in Farran v. Beresford, in the House of Lords, w'as, that by the words " a present right to receive the same," (J) Wrixon v. Vize, 3 Dru. Eq. Rep. 328 ; Farran v. Ottiwell, & War. 104; see id. p. 120, per 2 Jeb. & Sy. 97 ; Walters v. Lid- Curiam. will, 9 Ir. Law Rep. .302, 586. (e) 1 You. & Coll. 440, per {g) Palmer v. Alego, 1 Jeb. & Curiam. Sy. 601. (/) See Ryan v. Gamble, 2 Ir. NEW RIGHT IN JUDGMENT CREDITOR: CREDITORs'sUIT. 119 was meant an immediate riglit, without waiting for the happening of any future event (A). 6. It has been decided that a new right is acquired by the judgment of revivor on a scire facias issued on a judgment Avithin twenty years (z) ; but it is other- wise when the judgment is in an action of debt upon a judgment, for in that case the last judgment operates from its date, and time runs under the 40tli section against it from that period (k). 7. Before tlie late statute a bill filed by one creditor on behalf of himself and tlie others was held to pre- vent the old statute of limitations from operating as a bar against any other creditors who came in under the decree (/), and that has been followed in Ireland since the passing of the late act, where the bill was filed before the act passed, although it was not on behalf of the other creditors (m). But a judgment creditor of more than twenty years' standing who has neglected to take any step, cannot claim the benefit of a suit insti- tuted within the twenty years by another creditor on behalf of himself and all the other creditors in which a decree was obtained within the twenty years, for nothing is said in the exceptions in the act of the case of a bill being filed by one creditor for the benefit of the rest. This was decided in Berrington v. Evans (n). (h) 10 Cla. & Fin. 334 ; see 2 Law Rep. 362 ; Kealy v. Bodkin, You. & Coll. 206. ib. 383. ... ^ T5 r 1 mm (0 Stemdale v. Hankiason, 1 (z) Farran t'. Beresfovd, 1 Cla. o- oqo & Fin. 319 ; Farrell v, Gleeson, 11 ' . " ■ „ -d ji • or /-.I o T^. V^o ('») O'Kelly V. Bodkin, 2 It. Cla. & Fin. 702. -p -d o/-i Eq. Kep. 361. (A) Waiters v. Lidwill, 9 Ir. {n) I You. & Coll. 434. h4 120 V.'HERK 0M-: LUEDliOR CAN GO IN UNDER -S. And ill a Iiitur case (o), Avliicli it might be loiiiid ditticult to su})port, a bill filed by a creditor on his own behalf had the usual jjrayer for taking- the accounts of the deceased debtor, and the a])plication thereof in a due course of administration, and a judgment creditor was made a defendant, the bill praying the production of documents in his possession, and that the lien, // any^ to which he was entitled might be ascertained and the amount paid to him in the priority in which he might be found to stand, and the decree, which was informal, directed generally, after payment of the plain- tiffs demand, the other incumbrancers upon the estate to be paid according to their priorities ; yet because the decree did not contain any direction to treat the judg- ment creditor as a creditor, although under further proceedings the Master had found what was due on the judgment, Shadwell, V. C, held that there was no acknowledgment of the creditor's right, and that it seemed to him that the lanouao'e of the statute was imperative, and that it bound that case : he therefore decided that the judgment creditor was not entitled to be paid his demand on account of the lapse of time. 9. But Berrington v. Evans has been treated as de- pending upon particular circumstances, and it was said that instead of shaking the authority of Sterndale v. Hankinson, it rather corroborated it (^). Yet in two cases in Ireland before different courts, which cases it (o) Watson v. Bircli, 15 Sim. to every debt attempted to be 623. In an earlier case, in whicli proved after 31st December 1883 ; Sterndale v. Hankinson was cited, 9 Sim, 223, 224. see infra, pi. 27. tlie Vice-Chancellor said that case {p) O'Kelly x\ Bodkin, 2 Ir. Avas decided before 3 & 4 Will. 4, Eq. Rep. 309. c. 27, was passed. That act applies ANOTHEll CREDITORS SUIT. 121 was coiisiidei'cd could not be distinguished from Ber- riiigtoii V. Evans, tliat case was followed (q) : in both the creditor excused his delay on the ground of his ignorance of the institution of the suit, and which defence it was held showed that the suit was not his. In another case in Ireland (r) it was decided that a judgment creditor could not, when time had run against him, claim the benefit of a pending suit by a mort- gagee for a foreclosure and sale, for he, the creditor, could not have instituted such a suit (s). 10. In a case in Ireland (t) it was observed by the Chancellor, that as to the authorities he thought that the principles upon which the Court acts were cor- rectly laid down in Sterndale v. Hankinson, which was decided before the new statute of limitations. Ber- rington v. Evans was, he apprehended, properly decided, but it did not impeach the previous decision, nor did it, he thought, prevent a creditor from coming in under another creditor's bill, filed for the general benefit of creditors, w/iere Ins demand icoitld not have been barred had he himself filed the bill, and he comes in according to the decree and the course of the court. Courts of equity should be cautious not to render it necessary for every creditor to file a bill upon his debtor's death in order to raise his demand where one suit (ii) is regularly instituted. In a later case {x) in Ireland, the present Chancellor observed, that if Sterndale v. Hankinson was {q) O'Kelly V. Bodkin, 3 Ir. & Lat. 114; see Toft v. Steplien- Eq. Rep. 390. son, 7 Hare, 1, as to what suits (r) Hutchins v. O'Sullivan, 11 will not save the right of a vendor Ir. Eq. Rep. 443. to a lien for the purchase-money. (s) Bennett v. Bernard, 12 Ir. (^0 12 Ir. Eq. Rep. 235. Eq. Rep. 229. (c) Bennett i'. Bernard, 12 Ir. {t) Birmingham v, Burke, 2 Jo. Eq. Rep. 236. 122 creditors' suit. reconsidered in England lie was not sure tliat it would be upheld. Watson v. Bircli did not decide that Sterndale v. Hankinson would not be considered law even on a bill filed in England since the recent statute, but the judgment seemed rather to infer that if the case was similar to Sterndale v. Hankinson it would be otherwise. But however that miglit be, the cases in Ireland had established the rule as far as it had been carried, and were not to be disturbed. In a previous case ( ?/) the same learned Judge expressed an opinion that Sterndale v. Hankinson applied equally to a case where the bill has been filed since the passing of the new act, but ultimately he was not called upon to decide the question. 1 1 . Of course the statute must ultimately receive the same construction in both countries. Some pas- sages of the judgment in Eerrington v. Evans, taken without reference to the facts of that case, might seem to lay it down as a general rule, that a judgment cre- ditor when the time has run against him cannot take advantage of a general creditors' suit, according to the rule laid down in Sterndale v. Hankinson ; but the case ofBerrington v. Evans itself was properly decided, and the Chief Baron did not intend to lay down a general rule : he said that he w\ns not prepared to say whether if he could be satisfied that the Bill was filed with the consent of the judgment creditor, and he meditated, like the plaintiff, to prosecute his claim under that bill — whether under such circumstances he should arrive at a different conclusion. Even then, he apprehended, he would have to give a satisfactory reason for remain- ing so long without calling in the aid of the court in (y) Carroll V. Darcy, 10 Ir.Eci. Rep. 321. JUDGMENT BARRED AGAINST PERSONAL ESTATE. 123 his own person. We may observe that tlie case was a clear one against the creditor ; his debt was a judgment of 1813 ; the Bill was filed in 1821, after the debtor's death ; there was an apportionment of the fund in 1831, and the application of the judgment creditor was not made until 1835, — 22 years after iiis judgment, — alleg- ing ignorance of his rights, and of the proceedings, and that further assets had been paid into court since 1831. Perhaps therefore we may be justified in considering Sterndale v. Hankinson as still law in both countries, although the rule is to be cautiously applied since the new act. The suit must in effect be the suit of the creditor, one under which he would have a clear right to prosecute his demand, and of which he was fully aware, and his demand must be such as would not have been barred if he had himself filed the Bill actually before the Court ; and irrespective of the statute, he would be bound, in order to avail himself of the suit, to conform to the general orders of the Court, and not to be guilty of gross laches. 12, The 40th section now mider consideration has been held to apply to a judgment even where it is sought to be enforced against the personal estate only. Shad- well, V. C, in deciding this point, said that the lan- guage of the section was general. There was nothing to confine its meaning to a judgment which, owing to the nature of the assets of the party indebted, might affect land, but could not operate on personal estate (I). The intention of the Legislature was that no j^roceed- ing whatever should be taken on a judgment after the (I) The Vice-Chancellor probably said that there was nothing to con- fine the meaning to a judgment which there were no real assets to answer, but which could be paid out of personal estate. 124 SECURITY REMAINING UNBARRED BY TIME. Iai)se of 20 years from the time when the money secured by it became due, unless some payment should have been made on account of it, or some acknowledgment should have been given in writing A\ithin the period of 20 years (;:). This })erhaps is not a just exposition of tlie statute, for the provision relates to any sum of money secured by judgment, &c., or otherwise ciiarged upon or payable out of any hind or rent ; but as one remedy, viz. that against the hmd, is barred by the statute, the remedy against the personal estate is hekl to be barred also ; for if the action is brought so as to charge the personal estate, the answer is obvious : " You have brought your action in respect of a sum of money charged ui)on or payable out of real estate, you are therefore within the terms of the act, and consequently your right is barred." The i)crsonal estate may be an additional security to such a creditor, but however numerous his securities they could not carry his right farther; if his remedy under the real security is gone, it is also barred in respect of all the other securities (a). 13. Where a mortgagee, with a covenant from the mortgagor to pay the debt, joined in 1817 with the mortgagor in postponing his mortgage in favour of another creditor, and the estate "was conveyed to the latter to secure in succession the several debts, and he, under the trusts, sold it in 1834, and ai)plied the pur- chase money in part reduction of his own debt ; the original creditor was, upon a bill filed in 1842, held entitled to the benefit of an equitable assignment made to him in 1817 of future personalty to secure his debt, notwithstanding that there was no specific acknow- (^) Watson V. Birch, 15 Sim. («) Henry v. Smith, 2 Dru. & 523. War. 391, per Curiam. TENANT FOR LIFE PAYING OFF CHARGE. 125 ledgment of the debt after the execution of the assign- ment, and the bill was not filed until twenty-five years afterwards, for the assignment was only a col- lateral security in aid of the trust to sell the estate : it was intended to secure the debt, and ought to be considered operative as long as the debt existed, and having regard to tlie circumstances attending the debt, the covenant, the mortgage, and ultimately the trust to sell, it was held that the debt, and the personal remedy to recover it, subsisted at the time the bill was filed, and also that the assignment was then operative (&). 14. And where a tenant for life paid off a charge, but took no step to keep the charge alive, and more than twenty years elapsed in his lifetime, as the charge still enured to his benefit, it was held that the right was not barred by section 40 ; for the statute cannot be applied to a case where there is no assignable person liable to pay the charge, no person who by the delay could be induced to suppose that the charge was aban- boned or merged, and where the rent out of which the interest of the charge ought to be paid is receivable by and belongs to the same person who is entitled to the interest (c) . 15. And to bring a charge within the operation of this section, there must be a hand to receive as well as a hand to pay, and the party to receive must be ca- pable of releasing and giving a discharge (d). 16. Where a judgment is entered on a jmst obit bond, time of course does not begin to run until (b) Bennett v. Cooper, 9 Beav. 252. (c) Burrell v. Lord Egremont, 7 Beav. 205. (^d) McCarthy v. Daunt, 11 Ir. Eq. Rep. 29. 126 vendor's lien : legacies. after the death of the hfe on the dropping of which the payment depends (e). 17. A vendor's lien on the estate sokl for the pur- chase money is within the 40th section, and therefore will be barred by twenty years' possession ; and as it is only a constructive trust as between the vendor and purchaser, it does not fall within the 25th section (f). 18. In regard to legacies, it has been decided that a legacy payable out of personal estate is within this section as well as a legacy charged on real estate (g) ; and a residue is deemed a legacy within the meaning of the clause (h). But although the right of the re- siduary legatee may be barred as to assets possessed by the executor more than twenty years before the filing of the bill, yet as to assets possessed since that time, and within twenty years, the remedy remains («). 19. And where a legacy is given to one for life, and after his death to another, time will not run against the latter until the death of the tenant for life (k), for until then the legatee in remainder had not a present right to receive the same. So where the legacies are charged on property subject to prior charges, which require for a time all the produce, so that the legatees are not in a position to claim payment of their legacies, time will not run against them until the prior charges (e) Barber v. Shore, 1 Jeb. & (//) Prior v. Ilorniblow, 2 You. S}'. GIO ; Tucke}- v. Hawkins, 4 & Coll. 200 ; see Christian v. De- Com. Ben. Rep. 655 ; vide post, vereux, 12 Sim. 271 ; Adams v. Williams r. Welch, 3 Dowl. & Barry, 2 Coll. C. C. 205. LoWn. 505. , .V . , -r. «y~. n ^ >-• / x\ rjy p. oi 1 ^TT (0 Adams ?>. Barry, 2 Coll. C.C. (/) Toft V. Stephenson, 7 Hare, /" ^ •'* 1 ; see supra, p. 99, pi. 5. {g) Sheppard v. Duke, 9 Sim. {I) Prior v. Ilorniblow, 2 You. 5G7 ; 2 Dru. & War. 391 ; see & Coll. 200. post, pi, .33, PAYMENT IN PART DISCHARGE. 127 are satisfied (/). But where an infant was entitled under a will to a legacy, time was held to run from the period when she attained twenty-one ; and it was not revived by the executor, who had possessed assets charging his real estates by liis will with his debts (???) . 20. The section under consideration excepts from its operation cases where in the meantime some part of the principal money or some interest thereon has been paid, and the twenty years run only from the last of such payments (w). In Brocklehurst v. Jessop (o) it was held that an equitable mortgagee, who entered into possession of the estate, and received the rents and applied them as far as they would extend in payment of the interest, was entitled to go for the deficiency against the general assets of the mortgagor, because the receipt of the rent was a payment within the meaning of the proviso in the 9 Geo. 4, c. 14 (I). In a later case, in which a mortgagee with a bond from the mortgagor to secure the mortgage money entered and received the rents, Alderson, B., upon Brocklehurst v. Jessop being cited, observed that such a receipt might keep the mortgage alive, but {I) Faulkner r. Daniel, 3 Hare, («) See Vincent v, Willington, 212 ; see sect. 42. Long. & Town. 456. («i) Piggott V. Jefferson, 12 Sim. (o) 7 Sim. 438. 26. (I) Section 1, which enacts what acknowledgment shall alone be suf- ficient eAddence of a new or continuing simple contract, has a proviso " that nothing therein contained shall alter or take away or lessen the effect of any payment of any principal ov interest made by any person whatsoever," 128 COLLATERAL SECURITY KEPT ALIVE. gucere whether it kept the bond debt alive (j9). In Williams v. Welcli (- • i ti ° ' ^ , . ' (a) Barrettt).Birmingham,Flan. where a blaster s report m a minor o -rr ^ ►« , ^aa r. ,, ,. , ... „ , & Kel. 564 — 666. matter of the liabilit}' of the estate to an annuity was held not to de- («) Supra, sec. 6, pi. 9—20. prive the minors of the benefit of /f\ ge(._ 4]^ the statute. ARREARS OF RENT OR OF INTEREST. 133 30. And after that day, no arrear of rent {g) or of interest, in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy or any damages in respect of such arrears of rent or interest, can be recovered by any distress, action, or suit, but within six years next after the same respec- tively became due, or next after an acknowledgment of the same in writing has been given to the person entitled tliereto, or his agent, signed by the person by whom the same was payable, or his agent. But never- theless where any prior mortgagee or other incum- brancer has been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit is brought by any person en- titled to a subsequent mortgage or incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which became due during the whole time that such prior mortgagee or incum- brancer was in such possession or receipt as aforesaid, although such time may have exceeded the term of six years (A). 31. This section, as to an annuity, contemplates and provides for the case where the title to the an- nuity is not disputed, but the distress is made for the arrears due (i). 32. It extends to interest on money charged on land, which falls within section 40 {j), but it does not in- clude turnpike tolls ; for the word "land," either in {g) See Paget v. Foley, 2 Bing. N. C. G79. {k) Sec. 42. ( j) See Burne v. Robinson, 1 (0 James c. Salter, 2 Bing. Dru. & Wal. G88; Dillon r. Cruise, N. C. 644. 3 Ir. Eq. Rep. 82. i3 134 ANNUITY NOT CHARGED ON LAND. its usual au(.l i)io])er meaiiiiig-, independently of the act, or according to the extended meaning directed by the act, cannot be held to mean the tolls ])ayable for the use made of a turnpike road (A*). 33, And it has been decided that this section does not extend to an annuity given by will, which is pay- able out of personalty, and no charge upon land (/) ; but this seems altogether inconsistent with the decision that section 40, which was not referred to, does include legacies charged only on personal estate (m), for the personal annuity was of course a legacy within the act : in each section the word ^' legacy " follows the words " money charged upon or payable out of any laud or rent." The learned Judge said that this w^as not a charge upon land within the 42d section ; but accord- ing to the decisions upon the 40th section, a legacy will fall as to interest within the 42d section, although not charged upon land : it docs not appear possible, without doing violence to the w^ords, to put a different construction in this respect on the two sections. 34. After some conflict of opinion, it appears to be decided that this section includes interest on judg- ments as well as mortgages ; and where the right to recover against the real estate is barred, the right to recover against the personal estate is also barred (?i). The 40th section deals with the right to recover the principal sum ; this 42d section deals in like manner with the interest thereon. Judgments are expressly (X) Hellish V. Brooks, 3 Beav. Scul. 211, contra; but see O'Kelly 22, per Curiam. v. Bodkin, 2 Ir. Eq. Hep. 361 ; 3 (l) Rochv. Callen, 6 Hare, 531. Ir. Eq. Rep. 390 ; Henry v. Smith, {m) Supra, pi. 18. 2 Dru. & War. 381 ; Du Vigier v. (h) Kealy v. Bodkin, Saus. & Lee, 2 Hare, 326, 5M/;;-c, pi. 12, INTEREST ON JUDGMENTS: EXPRESS TRUSTS. 135 named in the 40th section, and they are in their na- ture in effect charges on real estate, and interest may be recovered upon them, and they are made securities for interest as well as principal. It is in this sense that judgments are dealt with in section 40. Now section 40 enumerates mortgages, liens, judgments ; but section 42 adopts the previous general description of money " charged upon or payable out of land," a description which includes every security, omitting the enumeration, which it was unnecessary to repeat. The enactments are identical. It is impossible to draw any distinction between the sums of money mentioned in the one section and in the other. 35. The 3 & 4 Vict. c. 105, s. 26, provides interest on every judgment debt not confessed or recovered for any penal sunj, for securing principal and interest; and this provision, although by a later statute, is sub- ject to the statute of limitations (o). 36. Upon this section (42), as npon section 40, it is settled that where there is an express trust, the 25tli section applies, and the claim is unaffected by the sec- tion under consideration {p). 37. There is no saving in section 42 for infancy or other disability, nor has it any words corresponding with those in section 40, which limits thir right of action, &c. to twenty years " next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same." Even as to legacies payable out of real estates, there is no saviug for infancy. In the case of younger (o) Henry v. Smith, 2 Dru. & War. S91, 392. {p) Gough y. Bult, IG Sim. 823 ; supra, sec. 6, pi, 9—21 ; sec. 7, pi. 28. i4 136 NO SAVINGS IN itj. 42 OF CH. 27. children's portions, although given by way of legacy, the interest is often allowed to remain in arrear, for the accommodation of the head of the family ; and if the statute is to receive a strict construction, a just claim will often be unnecessarily barred, and ultimately to the injury of the person whom the rule was intended to benefit. Whether a legacy be payable out of real or ])ersonal estate, interest upon it, where it carries interest, ought not to be barred during the infancy of the legatee (I). The 40th section saves the right when some part of the principal money, or some in- terest thereon, shall have been paid ; but there is no exception in section 42, which would make the pay- ment of a portion of a year's interest save the right to the residue ; but the right is preserved, if prosecuted \\ ithin a year, to all the arrears which have accrued during the possession of a j^rior incumbrancer. An attentive consideration of the two sections will pro- bably satisfy the learned reader that the two provisions are altogether distinct as regards time, and that no aid (I) In De Beauvoir v. Owen, 5 Excheq. Rep. 166, where time was held to run, in the case of a quit-rent, from the day on wliich tlie last pay- ment was made, and not fi-oni tlic time when the right to distrain first accrued, the Court of Exchequer Chamber, in giving judgment, observed tliat there did not seem such a contradiction between the probable intent of the legislature and the construction of the words of the act adopted by the Court of Exchequer as made it necessary to liave recourse to a forced construction to reconcile the words and the intent. The incon- venience of a person coming under a disability after the receipt of rent, and before the right of action, &c. accrued, was more substantial ; but the legislature, in passing this act, had in a much more important in- stance left the rights of persons unprotected, inasmuch as sect. 42, which bars the recovery of arrears after six years, has no proviso in favour of such persons, 5 Excheq. Rep. 182 ; see Ilumfrey v. Gery, 7 Cora, Ben, Rep. 567. JUDGMENT ON A REMAINDER : ACKNOWLEDGMENT. 137 can bo bono wed from the 40tli section in favour of an extension of the 42 d : The 40th section. No proceeding to recover the prhicipal but Avlthln twenty years after a present rlglit to receive the same shall have accrued to some person capable of giving a dis- charge, unless in the mean- time, 1. Some part of the mo- ney, or some interest thereon, shall have been paid, 2. Or some acknowledg- ment shall have been given. The 42d section. No interest to be reco- vered but within six years after the same shall have be- come due, 1 . Or there shall be an ac- knowledgment. 2. Or a prior incumbrancer shall be in possession. 38. Even a judgment creditor of a remainder-man in fee can only recover six years' interest, although the tenant for life or liis incumbrancers have all along been in possession (q). 39. The acknowledgment required to take a case out of the operation of section 42 being similar to that in section 40, it is here necessary to refer on that head only to the decisions already considered (r). 40. Upon the construction of section 42, coupled with section 40, no serious difficulty could have arisen ; but that by an act of the same session, passed cifter the act chap. 27, but to which operation was given from a (q) Vincent v. Going, 1 Jo. & Lat. G97. (?•) Supra, pi. 21—27. 138 OPERATION OF CII. 42 ON CH. 27. date prior to the time when the act chap. 27 passed (I), it was enacted that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty (II), shall be sued within twenty years after the cause of such actions or suits (s) ; and it contains savings in case of disabilities, and gives effect to acknowledgments in writing and part payments of any principal or interest (?). 41. A question arose whether section 42 of chap- ter 27, which we have been considering, extends to rents reserved by lease and secured by covenant. It was unnecessary to decide it, because the remedy was held to fall within the 3d section of the 3 & 4 Will. 4, c. 42, s. 3, and the savings which follow it, to which we have just referred. 42. But if it had not been for the later statute, (ch. 42,) Tindal, C. J., thought the case would not have fallen within the former. He referred to the title of the act (ii), which seemed more pertinent to rents that are a charge upon the land than to mere conven- tional rents. Then a reference to the rents specified (s) Sec. 3. (0 Sections 4, 5. (w) See 1 Mac. & Gor. 651 ; the title cannot be resorted to in con- struing the enactments. (I) The 3 & 4 Will. 4, c. 27, received the royal assent on the 24th of July 1833, and was to come in force on the 1st of January- J 834 ; tliat of c. 42 on the 14th August 1833, hut was directed to take effect on tlie 1st June 1833 (s. 44). It is manifest that the two acts were not framed by the same persons ; 3 Dru. & War. 491. The framors of the later act (c. 42), appear to liave been ignorant of the former act (c. 27) ; for in s. 7 they make a provision extend to the old statute of limitations, 21 James 1, without any reference to the one just passed. (II) Distresses are not limited by the 3 & 4 Will. 4, c. 42, but they are by the 3 & 4 Will. 4, c. 27 ; per Maule, J., 7 Com. Ben, Rep. 580. RENTS IN LEASES SECURED BY COVENANTS. 139 in the first section shows, that the arrearages of rent mentioned in this section (42) have no relation to a conventional rent reserved upon a lease. In section 2 it was clear, that the word rent was used to express charges for which an assize would lie, — rents which were a charge on the land. Section 36 goes to abolish all real and mixed actions. Section 40 enacts, that money charged on land shall be deemed satisfied at the end of twenty years if there be no interest paid or acknowledgment. It was said that section 41, which relates to dower, enacts that no arrears of dower should be recovered for more than six years, and that when section 42 follows, by enacting that no arrears of rent or interest shall be recovered for more than six years, we must intend that the legislature proposed thereby to include all other kinds of rents. But the C. J. should say, it was proposed to include other rents of the same nature as those to which the act according to its title and preamble was intended to apply, rather than conventional rents reserved upon a lease. Park, J., inclined to think that this was a case not intended to be included in this act, but he abstained from giving any express opinion on the point. But Bosanquet, J., said, that if the case had rested on that statute, and the second had never passed, he should have thought the right to recover had been confined to six years. The first section enacts, that the word rent shall extend to all heriots and to all services and suits for which a distress may be made. It appeared to him, that that must include rent service. The second section appears to relate to the recovery of an estate in the rent, and after limiting twenty years for the recovery of an estate in the rent, other provisions are introduced as to the 140 RENTS IN LEASES «ECURiiD BY COVENANTS. recovery of arrears. Section 40 relates to principal money charged upon land. Then comes section 42, Mhicli it was ooiitcnided did not ap]>ly to rent reserved by sj)ecialty. But if we look to the words with which arrears of rent are associated, it seems difficult to con- fine the expression to rent reserved by parol agreement, for interest could not be made a charge on land by ])arol, and there was no limitation but this for the recovery of arrears, M'hether due by parol or on specialty. 43, Tlie decision however was, that the case fell within the later act, and the opinions of the Judges are here given with a view to the general construction of this important section, where it is not repealed or affected by the subsequent statute. Mr, Justice Bo- sanquet's appears to be the true view ; but for the difference of opinion expressed by such high authorities, the writer would have thought the point a clear one (I). 44. The same rule extends to a rentcharge. ITiis was decided in the later case of Sims v, Thomas (.r), where there Mas a grant of an annuity charged upon land, and a covenant to pay the annuity to the grantee, and the declaration alleged a breach of covenant, and the question upon the two acts was, whether the period of limitation was six years or twenty years ; the Court of B. R. said that the Court of C. P. had decided, («) 12 Add. & Ell, 536 ; see 3 Dru. & War. 491, 492. (I) The point was so decided in Ireland, to which at that time c. 27 did, and c. 42 did not extend : Bruen v. Nowlan, 1 Jeb. & Sy. 340, n. ; see 3 Dru. is. War. 492, 493 ; Grant v. Ellis, 9 Mees. & Wels. 113. There was then no conflict of statutes. Tlie 8 & 4 Vict. c. 105, 8. 32, extends to Ireland in effect the jirovision in 3 & 4 Will. 4, c. 42. The Jaw, therefore, is now the same in both countries. POSSESSION OF PRIOR INCUMBRANCER,' 141 in Paget v. Foley, that if covenant be brought on an indenture of demise, the period of limitation is twenty years, and they entirely concurred in that decision. The covenant was not, they said, the usual case of reservation of rent upon a lease, and so far it was not properly an indenture of demise ; it w'as a rentcharge, and as such fell within section 42 of chapter 27. But notwithstanding that, they were of opinion that it fell within the 3d section of chapter 42, as being an actioai of covenant on a specialty. 45. The last exception in section 42 of chapter 27 is, when a man has an estate and there are several in- cumbrancers on it, and one of the incumbrancers enters into possession, there another creditor shall not be pre- judiced by that possession if he come for relief within a year after the prior creditor has been removed from the possession (I). The enactment in other respects is absolute and positive that no arrears of interest shall be recovered within the time specified. Therefore, as we have seen, a judgment creditor of a remainder-man in fee can only recover six years' interest, although the tenant for life or his incumbrancers have all along been in possession (^). The Court observed that this was a case of a totally different nature from that provided for by the statute, for here was an estate for life not bound by the judgment, and a remainder which was bound by (y) Vincent v. Going, ] Jo. & Lat. 697 ; see Drought v. Jones, 2 Ir. Eq. Rep. 803, which seems a doubtful authority. (I) In Du Vigier v. Lee, 2 Hare, 333, Wigram, V. C, observed, in reference to the observations to whicli the statute was open, that tlie proviso in the 42d section in favour of mortgagees did not by any means adequately provide for the various cases for which, where there are several mortgagees upon the same estate, provision was necessary, and was obviously meant to be made. 142 ARREARS OF INTEREST ON MORTGAGE MONEY, it ; the case therefore was not within the exception, for the judgment creditor of the remainder-man had no right to enter into possession of the estate during the life of the tenant for life, even supposing the possession had been vacant. The act does not say that if the creditor could have had a remedy against the lands and neglected to avail himself of it, he shall only recover six years' interest, but it is absolute and positive that no arrears of interest shall be recovered but within the time specified ; and then the exception states the only case in which the Legislature intended to relieve the creditor from the effect of the previous enactment. The Judge added that he was not embarrassed by the provisions of the 3d section of the 3 &; 4 Will. 4., c. 42, for this was a proceeding upon a judgment, not upon a bond or covenant. He must say that it was most desir- rable that the legislature should clear up the difficulties Avhich they had themselves created, for it seemed difficult to reconcile the two statutes. 46. The possession of a judgment creditor would be the possession of an incumbrancer within the proviso in section 42 (z). 47. Where there were two subjects to deal with, a principal sum falling within the 40th section, and inte- rest on it falling within the 42d section, a serious diffi- culty arose in consequence of the 3d section of chapter 42 («) (I), and this of course affected the question of arrears of interest on mortgage money : (z) 8 Iv. Ec[. Rep. 408 ; 2 Dru. & War. 390 ; and see 2 Hare, 333. (a) 3 Dru. & War. 492. (I) In a case in Ireland it was observed by the Court, tliat in both Paget ?'. Foley and Strachan v. Thomas, there was but one sul)j('ct, the rent in the one and the rentcharge in tlie other; it was therefore impossible WHERE THERE IS OR IS NOT A COVENANT TO PAY. 143 48. Where the mortgage was of a canal, without any covenant or engagement to pay, it was decided that the case fell within the 42d section of chapter 27, and that no more than six years' arrear of interest could he recovered {b). That certainly was a case to which the 3d section of chapter 42 could not apply. 49. In the early part of 1843 the question arose in Ireland, whether in case of a charge or mortgage with a covenant for payment, the provision as to actions of covenant in the later act (c) enlarged the remedy of the creditor as to interest, and it was held that the case fell wholly within the 3 & 4 Will. 4, c. 27, and was not aifected by the later statute, and therefore that six years' arrear of interest only could be recovered (d). 50. The day after this decision the same point came on for argument in England, and after full consideration it was decided that the case fell within the 3d section of chapter 42, and therefore that the arrears could not be confined to six years (e). It was not then known that the point had been ruled otherwise, but in a later case before the same learned Judge, the decision in Ireland was thought to have turned upon the distinction (b) Hodges v. Croydon Canal (d) Hughes v. Kelly, 3 Dru. & Company, 8 Beav. 80 ; see 3 Dru. War. 482 ; see 1 Mac. & Gor. 650. & War. 493. (c) Du Vigier v. Lee, 2 Hare, (c) 3 & 4 Vict. c. 105, s. 82, the 320. same as 3 & 4 Will. 4, c. 42, s. 3. to say there could be a recovery of the same subject both within twenty years and within six years ; 3 Dru. & War. 492. Where the right falls within the 3d section of the 3 & 4 Will. 4, c. 42, there is only one limit, which is twenty years ; where the right falls within the 2d and 42d sec- tions of the 3 & 4 Will. 4, c. 27, the distress or action must be brought within tlie twenty years, under s. 2 ; but the extent of tlie arrears to be recovered is, by s. 42, restricted to six years. 144 ARREARS OF FEE FARM RENT : LUNACY. between the English and Irish cases {/), and the point was again decided in favour of the application of tlie later statute. But upon ap})eal the case was held to fall wholly within chapter 27, and therefore that six years' arrear only could be recovered (). (a) Sec. 29. Lord Tilmleston, 12 Ir. Eq. Rep. (6) Archbishop of Dublin v. 251, per Cmi&m, WHEN RIGHT TO PRESENT BARRED: THE CROWN. 149 3. And no person can bring any quare impedit or other action, or any suit, to enforce a right to present to or bestow any church, vicarage, or other ecclesias- tical benefice, as the patron thereof, after the expiration of such period as folIoAvs, (that is to say,) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years ; and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as with the times of such incumbencies will make up the full period of sixty years (c). 4. But it is provided, that when on the avoidance, after a clerk shall have obtained possession of an eccle- siastical benefice adversely to the right of presentation or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty or the ordinary, by reason of a lapse, such last-mentioned clerk >vill be deemed to have obtained possession adversely to the right of presentation or gift of such patron as afore- said ; but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice, in con- sequence of the incumbent thereof having been made a bishop, the incumbency of such clerk will, for the purposes of the act, be deemed a continuation of the incumbency of the clerk so made bishop, or in other words, the former will be within the provision in sec- tion 30, and the latter will not (d). (o) Sec. 30. {d) Soc. 51. k3 150 ESTATE TAIL IN ADVOWSON : 100 YEARS BAR. 5. Aiid every person claiming' a right to present to or bestow any ecclesiastical benefice as patron thereof, by virtue of any estate, interest, or right, which the owner of an estate tail in the advowson might have barred, will be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action or suits will be limited accordingly (e). 6. But no person can bring any quare impedit, or other action or suit, to enforce a right to present or to bestow any ecclesiastical benefice, as the patron thereof, after the expiration of 100 years from the time at which a clerk has obtained possession of such benefice adversely to the right of presentation or gift of such person or of some person through whom he claims, or of some person entitled to some preceding estate or interest or undivided share or alternate right of presen- tation or gift, held or derived under the same title, imless a clerk has subsequently obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other })erson entitled in respect of an estate, share, or right, held or derived under the same title (/). 7. The act is extended to the Spiritual Court {g) where no person claiming any tithes, legacy, or other property which might be recovered at law or in equity, is to have a longer time to recover the same than he lias at law or in equity. But it is not to extend to Scotland, nor is it, so far as it relates to any right to present to or bestow any church vicarage or other (e) Sec. 82. (/) Sec. 33. (^) Sec. 43. CLAIMS FOR modus: 30 YEARS. 151 ecclesiastical benefice, to extend to Ireland i^h) ; but this latter provision has since been altered (i). 8. By the 2 & 3 Will. 4, c. 100, '' for shortening the time required in claims of modus decimandi, or exemp- tion from or discharge of tithes " (I), it is enacted that all prescriptions and claims of or for any modus deci- mandi, or of or to any exemption from or discharge of tithes by composition real or otherwise, shall, in cases where the render of tithes in kind shall be demanded by the King, or by any duke of Cornwall, or by any lay person, not being a corporation sole, or by any body corporate of many, whether temporal or spiritual, be deemed good in law, upon evidence showing, in cases of claim of a modus the render of such modus, and in cases of claim to exemption showing the enjoyment of the land, without payment or render of tithes, money, or other matters in lieu tliereof, for the full period of thirti/ years next before the time of such demand, un- less, in the case of claim of a modus, the actual render of tithes, or of money, or other thing differing in amount, quality, or quantity from the modus claimed, or, in case of claim to exemption or discharge, the render or payment of titlies, or of money or other matter in lieu thereof, shall be shown to have taken place at some time prior to such thirty years, or it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement • (h) Sec. 44. (i) 6 & 7 Vict. c. 54 ; 7 & 8 Vict. c. 27 ; 8 & 9 Vict. c. 51. (I) It does not extend to Ireland (sec. 9) ; as to tlie preamble, see 1 Mac. & Gor. 265. k4 152 CLAIM Oi' MODUS: 60 YEAIlS. expressly made or given by deed or M'ritiiig ; and if such proof in support of the claim shall be extended to the full i)eriod of sixtij years next before the time of such demand, the claim shall be deemed absolute and indefeasible, unless it shall be proved that such pay- ment or render of modus was made or enjoyment had by some consent or agreement exjjressly made or given for that purpose by deed or writing {fi). Upon which l)rovision it has been observed that where it provides that if a modus has been paid for thirty years, it may be defeated by showing the payment of tithes in kind ; that means the payment to any one ; and the word must be used in the same sense in the subsequent part of the clause, so that a modus in the sense given by the act is as inconsistent with the render of tithe as it is according to its proper legal prescription (/). 9. And where the render of tithes in kind shall be demanded by any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other corporation sole, whether spiritual or temporal, every such pre- scription or claim shall be valid and indefeasible, upon evidence showing such ])ayment or render of modus made or enjoyment had, as before mentioned, appli- cable to tlie nature of the claim, during the whole time that two persons in succession shall have held the office or benefice in respect whereof such render of tithes shall be claimed, and for not less than three years after the appointment and institution or induction of a third person thereto : provided always, that if the whole time of the holding of such two persons shall be {k) Sec. 1 ; see Dean and Chap- {I) 15 Mees, & Wels. 426 'fper ter of Ely v. Cash, 15 Mees. & Chief Baron. Wels. 647. CORPORATION SOLE: WHAT IS A DISCHARGE. 153 less than sixty years, then it shall be necessary to show such render of modus made or enjoyment had, not only during the whole of such time, but also during such further number of years either before or after such time, or partly before and partly after, as shall witli such time be sufficient to make up the full period of sixty years, and also during the further period of three years after the appointment and institution or induction of a third person to the same office or benefice, unless it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing (m). 10. Where in answer to a suit by a vicar for tithes, the defendant proved non-payment for the period re- quired by the act, but showed no legal ground for the exemption, it was held that this was no valid defence under the act. Upon this question there was a dif- ference of opinion amongst the Judges, but finally Lord Cottenham, C, reversed the decree, and decided in conformity with the opinion of the great majority of the Judges, that under the act, the simple fact of enjoyment of the discharge claimed for the prescribed time is all that need bo pleaded and proved as an answer to a demand for tithes (n). 1 1 . A prescription for a lord of a manor to hold a manor freed from tithe, on payment to the rector of 40/. a year in lieu of all tithes within the manor, and that the lord, in consideration of that payment, should (/«) See. 1. Ell. N. S. 313 ; Lord Stamford v. (ii) Salkeld v. Johnston, 1 Hare, Dunbar, 13 Mees. & Wels. 822 ; see 196 ; 2 Com. Ben. Rep. 749 ; 2 Shell v. Incorporated Society, 10 Excheq. Rep. 2oG ; 1 Mac. & Gor. Ir. Eq. Rep. 411. 242 ; Fellowes v. Clay, 4 Add. & 154 STATUTE IN EASE OF OCCUPIERS. have for himself, his heirs and assigns, from the occu- piers of land within the manor, a tenth of all titheable matters within the manor, is not a modus decimandi^ or exemption or discharge for tithes within the meaning of this statute (I). The question arose between the rector and the lord of the manor : the former claiming tithe against the latter. As there was a prescriptive title to a parcel of tithes, and the immemorial payment was a prescriptive rent for them, the statute was held not to apply. In truth, the Court observed, the contest was between the rector and the lord as to the title to a parcel of tithes admitted to be due from the occupier to some one. The statute was never meant to apply to disputed titles to the ownership of tithes, or to make a bad title to a parcel of tithes good. It was enacted in ease of the occupier who had not paid tithes in kind at all, but been totally exempt, or had paid something in lieu of it for a long period, and relief is given by shortening the time of prescription, and thus facilitating the proof of his title to exemption, or to jDay the tithe otherwise than in kind (o) . 12. In the Dean and Chapter of Ely v. Bliss (p), Lord Langdale, at the Rolls, held that the right to tithes as against an ecclesiastical corporation aggregate was barred by the 3 & 4 Will. 4, c. 27, by non-pay- ment for twenty years. In answer to the objection that the effect would be to entirely subvert the act of the 2 & 3 Will. 4, c. 100, now before us, passed in (o) Knight V. Lord Waterford, Waterford r. Knight, 11 Cla. & 15 Mees. & Wels. 419; see Lord Fin. G53. (p) 5 Beav. 674. (I) Whether this prescription was a good one was uot decided ; 15 JVIees. & Wels. 427. ^ J / EFFECT OP NONPAYMEMT OF TITHES FOR 20 YEARS. 155 the preceding year for shortening the time required in claims of exemption from or discharge of tithes, he said he thought that they had different objects ; but it was a sufficient answer to the objection to say that if two inconsistent acts be passed at different times, the last is to be obeyed ; and if obedience cannot be observed without derogating from the first, it is the first which must give way. But upon an appeal, a case was directed to the Exchequer, and they certified their opinion to be that the tithes might be recovered notwithstanding the 3 & 4 Will. 4, c. 27. They were of opinion that they ought to confine the operation of the 2d section of that statute to cases where there are two parties, each claiming an adverse estate in the tithes : therefore a person who has received no tithes for twenty years cannot recover the possession of them from another who has for twenty years received those tithes from the terre-tenant. This construction recon- ciled the 3 & 4 Will. 4, c. 27, s. 2, with Lord Ten- terden's act (2 & 3 W^ill. 4, c. 100) for shortening the time of prescription in such cases, and for limiting it in the case of tithes to a period of sixty years and three incumbencies ; for the latter act clearly applies to the tithes as a chattel, and provides a limitation to protect the terre-tenant in his prescriptive mode of rendering them to the clergyman or tithe-holder. It was very improbable that the legislature could have intended, suh silentio, to have repealed so important an act so recently passed. Their construction, which they thought was the more reasonable one, had the addi- tional advantage of reconciling both acts, and of removing what would otherwise seem an apparent neglect and carelessness on the part of the logisla- 156 COMPOSITION FOR TITHES : SAVINGS. tare (q). This certainly a})pears to be the sound con- struction of the two statutes. 13. And every composition for tithes which had been made or confirmed by the decree of any court of equity in Eni>land in a suit to which the ordinary, patron, and incnnibcnt were parties, and whicli had not since been set aside, abandoned, or departed from, is made valid in law, and no modus, exemption, or discharge is to be deemed to be within the provisions of the act, unless the same is proved to have existed and been acted upon at the time of or within one year next before the passing of the said act (r). 1 4. But it is provided, that where any lands or te- nements shall have been or shall be held or occupied by any rector, vicar, or other person entitled to the tithes thereof, or by any lessee of any such rector, vicar, or other person, or by any person compounding for tithes with any such rector, vicar, or other person, or of any such lessee or compounder, whereby the right to the tithes of such lands or tenements may have been or may be during any time in the occupier thereof, or in the person entitled to the rent thereof, the wdiole of such time shall be excluded in the computation of the several periods of time before mentioned (s). 15. And it is also provided, that the time during which any person otherwise capable of resisting any claim shall have been or shall be an infant, idiot, non compos mentis, feme covert, or lay tenant for life, or during whicli any action or suit shall have been pending, {q) Dean and Chapter of Ely v. (r) Sec. 2. Cash, 15 Mees. & Wels. G17 ; (s) Sec. 6, supra, sect. 3, pi. 3. pleading: presumption. 157 and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods before mentioned, except only in cases where the right or claim is thereby declared to be absolute and indefeasible (^). 16. And it is enacted (w) that in all actions and suits to be commenced after the act, it should be sufficient to allege that the modus or exemption or discharge claimed was actually exercised and enjoyed for sueli of the periods mentioned in the act as may be ajiplicable to the case ; and if the other party should intend to rely on any proviso, exception, incapacity, disability, contract, agreement, deed or writing therein men- tioned, or any other matter of fact or of law not inconsistent with the simple fact of the exercise and enjoyment of the matter claimed, the same is to be specially alleged and set forth in answer to the allega- tion of the party claiming, and shall not be received in evidence on any general traverse or denial of the matter claimed. 17. And it is enacted that in the several cases men- tioned in and provided for by the act, no presumption shall be allowed or made in favour or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number men- tioned in the act as may be applicable to the case and to the nature of the claim (r) (I). (t) Sec. 6. (?<) Sec. 7 ; see Salkeld v. Johnston, itbi sup. (v) Sec. 8, (I) For the new limitation upon actions of debt for rent, or upon any bond, &c., see 3 & 4 Will, 4, c. 42, 93. 3, 4, 5, and 7, which last section, 158 SAVINGS. 18. The act did not prejudice any suit or action then commenced, or which might be commenced during that session of Parliament, or within one year from the end thereof. In consequence of this latter saving many suits were filed to establish the right to tithes where there was an alleged modus (a;), and most of the doubtful cases have been set at rest by decree. The tithe commutation act contains due provision for the allowance or trial of moduses (y). ] 9. There is one other provision in the act, that it should not extend or be applicable to any case where the tithes of any lands, tenements, or hereditaments had been demised by any deed for any term of life or numl^er of years, or where any composition for tithes had been made by deed or writing by the person or body corporate entitled to such tithes, with the owner or occupier of the land for any such term or number of years, and such demise or composition should be subsisting at the time of the passing of the act, and where any action or suit should be instituted for the recovery or enforcing the payment of tithes in kind, within three years next after the expiration, surrender, or other determination of such demise or composition (s). (x) See 4 & 6 Will. 4, c. 83. 319 ; Wetherell v. Weighell, id, . ^. <^Ue. (/) 6 & 7 Will. 4, c. 71, ss. 44, 245. P/ 45 : upon this act, see Wether- (x) Sec. 4 ; see Dean and Chap- ell V. Belhvood, 3 You. & Coll. ter of Ely v. Bliss, 5 Beav. 574. it should be remembered, ajiplies generally to the 21 Jac. 1. As to the operation of this statute on rent, see Paget v. Foley, 2 Bing. N. C. 679 ; Hodges V. C. C. Company, 3 Beav. 86 ; and the cases suprxt, section 7, pi. 40—44. As to sections, see Kempe v. Gibbon, 12 Adol. & YA\. N. S. 662. [ 159 ] SECTION IX. OF RIGHTS OF COMMON, OF WAY, OF LIGHT, &C. 1. 24-3 JVill. 4, c. 71, s. 1 : rights of profits a prendre : thirty years: sixty years. 2, Section 2. Easements twenty years; forty years. Section 3. Light twenty years. Section 4. Computation of time : interruption. Section 5. Ifode of pleading. Section 6. Restriction of pre- stimption. Section 7. Disabilities saved : tenancy for life, &^c. Section 8. Exclusion of time in computing the forty years. [General view of the operation I of the act. , Party must claim right to pro- fits a prendre and easements : what amounts to such a claim. 13. Leave asked or agreement within the period, admission of no right. 14. Unity of seisin : unity of pos- session, time does not run. 15. Must be tcithout interruption : what amounts to an interrup- tion : the whole time must be covered. 16. Natural causes not an inter- ruption. 17. Light must he enjoyed as an easement distinct from the enjoyment of the land. 18. Hwtridge v. Warwick ace. 19. Other modes in which the thirty years for profits h, prendre, or twenty years for easements, may be defeated. 20. Custom of London excluded as to light. 21. How time is to be reckoned: effect of interruption for less than a year. 22. Later years unaccounted for, fatal. 23. Cesser of user under agreement or new way : yet time runs. 24. Proof of enjoyment beyond the period. 25. Abandonment of right, irrespec- tive of time. 26. Operation of disabilities: te- nancy for life. 27. Sewing for reversioner as to forty years^ claim of easement. 28. Difficulties upon section 8 : con- venient substituted for ease- ment. 29. No bar, unless the rights of all are barred. 30. Pleadings : exclusion of pre- sumption. 31. Section 5 must he literally fol- lowed. 32. Time must be stated according to section 4. 33. What must he specially replied to; and what given in evi- dence wider a general tra- verse. 160 PROFITS A prendre: 30 years: 60 years. 34. Tenancy for life shonhl be spe- ciaUt/ replied. 35. Unity of 2>ossessioH or circif in- stances negatinng user as of right may be proved wider a traverse. 3G. DijficuUies upon section 5 : light: rights in gross: disa- bilities. 37. IJ'hat a jyiirchascr should ascer- tain. 1. The proYisions in reg-ard to the limitation of the time of prescription in the cases which we are now to consider are contained in the 2 & 3 \Yill. 4, c. 71 (I). The statute recites that the expression, " time imme- morial, or time whereof the memory of man runneth not to the contrary," was then, by the law of England, in many cases considered to include and denote the whole period of time from the reign of Richard the First, whereby the title to matters that had been long- enjoyed was sometimes defeated by showing- the com- mencement of such enjoyment, which was in many cases productive of inconvenience and injustice; for the remedy thereof it was enacted, that no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of the Crown, or of the Duchy of Lancaster, or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corjiorate, except such matters and things as are in the act specially provided for, and except tithes, rent, and services, shall, Avhere sucli right, profit, or benefit shall have been actually taken and enjoyed by any person claiming- right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only that such right, (I) It does not extend to Scotland or Ireland ; sect. 9. RIGHT TO EA!?E-MEi\TS. 161 profit, or benefit was first taken or enjoyed at any time })rior to such period of thirty years, but nevertheless such chiini may be defeated in any other way by whicli the same was then liable to be defeated ; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and inde- feasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. 2. And no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of the Crown, or ])arcel of the Duchy of Lancaster or of the Duchy of Cormcall, or the property of any ecclesiastical or lay person, or body corporate, when such Avay or other matter as therein last before-mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same was then liable to be defeated ; and where such Avay or other matter as therein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. 162 RIGHT TO light: pleadings. 3. And when tlie access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. 4. And each of the respective periods of years here- inbefore mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and no act or other matter shall be deemed to be an interruption, within the meaning of the statute, unless the same shall have been or shall bo submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person makini? or authorizino" the same to be made. 5. And it is enacted, that in all actions upon the case and other pleadings, wherein the party claiming might then by law allege his right generally, without averring the existence of such right from time imme- morial, such general allegation shall still be deemed sufficient, and if the same shall be denied, all and every the matters in the act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation ; and that in all pleadings to actions of trespass, and in all other plead- ings wherein before the passing of the act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the en- joyment thereof as of right by the occupiers of the tene- PRESUMPTIONS: SAVINGS. 163 ment in respect ^vllereof the same is claimed for and during such of the periods mentioned in the act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as was then usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter thereinbefore men- tioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation. 6. And in the several cases mentioned in and pro- vided for by the act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in the act as may be applicable to the case and to the nature of the claim. 7. But it is provided that the time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the com- putation of the periods thereinbefore mentioned, except only in cases where the right or claim is thereby declared to be absolute and indefeasible. 8. And it is also provided, that when any land or l2 164 OPERATION OF THE ACT ON water ui)oii, over, or from which any such way or other convenient M'atercourse or use of water shall have been or shall be enjoyed or derived had been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as therein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall, within three years Jiext after the end or sooner determination of such term, be resisted by any person entitled to any reversion expectant on the determination thereof. 9. Instead of stating and commenting on the sec- tions of this act separately, I have found it necessary to state the whole act in the first instance, because its provisions are such as to render it impossible to under- stand the full operation of any clause without we have the other clauses before us at the same time, and in many cases the decisions on one section apply ecpuilly to others. Tiie act treats of three subjects : profits () proidrehy the 1st section ; easements by the second ; and the access and use of light by the 3d. It \)YC- vents the two first rights from being defeated after the prescribed enjoyment by merely showing that such right or benefit was fa'st taken or enjoyed at any time prior to the period in question, but where the first time of limitation only has elapsed, viz. thirty years for ])rofits a prendre, and twenty years for easements, the claim may be defeated in any other vay by which the same was before liable to be defeated. But where in the case of profits a prendre there shall have been sixty years' enjoyment; the right is made absolute, and so it PROFITS A PRENDRE AND EASEMENTS. 165 is ill the case of easements where there has been forty years' enjoynient ; unless in either case there shall be some consent or agreement by deed or writing. Light is put on a more favourable footing-, for twenty years' enjoyment creates an absolute right, unless there shall be some consent or agreement by deed or writing. All the periods appointed by the act are to be deemed periods next before any action or suit wherein the claim or matter may be called into question. But the periods appointed by the act are thus qualified : the disabilities and particular estate and litigation enumerated in the 7tli section pending the duration of which time is to be excluded in the computation of the fixed periods extend to all the cases except only those where the right or claim is declared to be indefeasible, and those are the claims to profits a prendre pro- tected by sixty years' enjoyment under the 1st section, and the claims to easement protected by the forty years' enjoyment under the 2d section, and the claims to light protected by twenty years' enjoyment under the 3d sec- tion. But in regard to easements where forty years' enjoyment would make the right indefeasible if the act had stopped there, it is provided that where the land or water over or from which the easement shall l)e enjoyed is held for life or for any term exceeding three years, the time during the continuance of such term is to be excluded in the computation of the forty years, if the claim shall within three years after the end of such term bo resisted by the reversioner. 10. It is however required in the case both of ])rofits h 'prendre under the 1st section, and of easements under the 2d section, that the enjoyments sliould be by some ]iersoii claiming right thereto without in- L «j 16() KNJOYMLNT AS OF RIGHT. terruption, wliilst in the case of light it is required that the enjoyment should be in like manner without inter- ruption, but it is not required that the enjoyment should be by a person claiming right thereto. 11. In all the cases provided for by the three first sections, viz., profits ci prendre, easements and light, time is not made a bar where it shall appear that the enjoyment Mas by some consent or agreement expressly made or given by deed or writing. ] 2. We n>ay now proceed to the consideration of the leading cases on the statute. To give effect under the act to claims to profits a prendre and to easements, it is first required that the right claimed shall have been actually taken and enjoyed by some person claiming right thereto for the period specified. It has been observed that the words " as of right " cannot mean ~s> an adverse right ; for the statute provides that if the enjoyment be under an agreement, the agreement must be pleaded specially, by which plea the allegation of en- joyment "as of right " would be met, not by way of denial, but by way of confession and avoidance (a). They mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time on each occ asion, or even on many occa- sions of using it, but an e njoym ent had openly, notori- ously, without parti cular leave at the ti me, by a person claiming to use it, withoutdanger ofbeing treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user, or by deed conferring the right, or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agreement in writing not under seal, in (o) 4 Adol. & Ell. 376; /?«?' Patteson, .!., p. .579. LEAVE asked: UNITY OF POSSESSION. iG7 case of a plea for forty years, or by such writing or parol consent or agreement, contract or licence, in case of a plea of twenty years (b). 13. Wliere leave is asked from time to time within the forty or twenty years, for example, it breaks the conti- nuity of the enjoyment as of right, because each asking of leave is an admission that at that time the asker had no right (c). It follows that not only an asking- leave, but an agreement commencing within the period y proves that there was not at the time the agreement was made, an enjoyment as of right, and so the conti- nuity is broken (d), 14. Unity of seisin may be without possession (e), but enjoyment in consequence of unity of possession, so that no person could complain of the enjoyment or user is not suflBcient : it is inconsistent with the simple fact of enjoyment as of right {f) ; and the claimant in the case of a right of way, for example, would not have enjoyed as of right the easement but the soil itself (^). And imity of possession is equally operative in cases of profits a prendre depending on the 1st section (//). 15. The statute requires that the enjoyment should be without interruption for the given periods in all the cases provided for by the three first sections. 1 his {b) Tickle v. Brown, 4 Adol. & (e) England v. Wall, 10 Mees. Ell. 382, per Cuiiam ; see Bright v. & Wels. 699. Walker, 1 Cro. Mees. & Ros, 211 ; (/) Onley v. Gardiner, 4 Mees. 4 Tyrw. 502 ; Arkwright v. Gell, & Wels. 496 ; Clay v. Shackeray, 6 Mees. & Wels. 233. 2 Mood. & Rob. 244 ; 9 Car. & Pay. 47. (c) Monmouthshire Canal Com- ,. ^^.^^^ ^^ ^^-e^lk.y, 1 Cro. pany v. Harford, 1 Cro. Mees. k j^j^^^_ ^^, j^^^_ gll. Ros. 614 ; 5 Tyrw. 68. ^j^^ Dayton .. Corby, 2 Adol. & {d) 4 Adol. & Ell, 383. EU. N. S. 818. l4 168 ENJOYMENT WITHOUT INTERRUPTION. necessarily imi)orts such an user as could be intor- ru])tcd by sonic one capable of resisting the claim (i). And the interruption mentioned in the act means an obstruction by the owner of the locus in quo (k) : an obstruction by the act of some other person than the claimant, not a cessation by him of his own accord : the W'Ords are, " without interruption," not *' without intermission ; " and therefore a cessation of user by his own accord admits of explanation. A commoner having ceased to use the common during two years of the thirty because he had no commonable cattle at the time, but having used it before and after, it was held that the jury were justified in finding a continued enjoyment during thirty years (/). But the proof must cover the thirty years, therefore a proof for twenty-eight years immediately before which the right was obstructed, although it was exercised before that obstruction, is not RuflScient (711). If the claim had beeu made by virtue of immemorial usage or of a non-existing grant, as was done before the statute, twenty-eight years' enjoyment would have been some evidence ; but the late act, whilst it dispenses vWth the necessity of setting up such user or grant, and limits proof to a thirty years' enjoyment, requires that that enjoyment shall be proved to the full extent (7?). Section 4 requires each of the (0 See Aikwvight v. Gell, 5 (n) fi Adol. & Ell. 1(36, ^w Lit- Mees. & Wcls. 200. tledale, J., in Bailey r. Ai^pleyard. (/?•) 4 Meos, & Wels. 407 ; as to In that case it ajipears that there light, see infra, pi. 17. was an exclusion, and not simply (I) CaiT V. Foster, 3 Adol. & an interruption, for the two years : Ell. N. S. 581. if it amounted to an interruj^tion, (»?) Bailey v. Appleyard, fi Nev. yet it had existed and been acqui- & Per. 257; 8 Adol. & Ell. IGl ; esced in for more than a year. Note see Clay v. Thackrah, 9 Car. cSr prefixed to 8 Adol. & Ell., vide Pay, 47. infra, s. 4. OBSTRUCTION FROM NATURAL CAUSES. 1G9 respective periods of years to be tal^eii to be the period next before some suit or action wherein the claim shall have been or shall be brought into question : thus, as a learned Judge observed, making the thirty or other number of years before spoken of entire periods (o). 16. So obstruction or interruption from natural causes over which the party could have no control, will not operate to his prejudice, as in the case of water, or the accident of a dry season (p) ; but unity of pos- session, as we have seen, will prevent time from run- ning (^). 17. In regard to light to or for any building, <^ 4^^ although twenty years' enjoyment of that gives a title without being clogged with the condition that the person enjoying it claimed right thereto, or being left open to be defeated in any other way than that pointed out by the statute, viz., by interruption, or by its appearing that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing (r), yet the enjoyment of the access of light to a house, over contiguous land, must have been held as an easement distinct from the enjoyment of the land itself, in order to entitle the claimant to the benefit of the statute. 18. This was decided, and the grounds of the decision fully explained in the case of Hartridge v. Warwick (*). A house and garden as far back as the (o) 8 Adol. & Ell. N. S. 1G7. interruption over part of the land (p) Hall v. Swift, 3 Bing. N. C. over which there is a risht of pas- 381 ; see the remarks of Patteson, tnrage. (D^^" v.^1*ZG^«^./^,/»r.}s2. J., on that case, 3 Adol. & Ell. N.S. (52. 170 LIGHT MUST HAVE BEEN memory of witnesses went were in the possession of the same person : the garden was held under a yearly tenancy, over which the access of light to the house took place, and the enjoyment of the light had been without interruption until a recent period, when the tenancy of the garden was changed, and a wall Avas built upon it which obstructed the light. It was not contended that from twenty years or longer enjoyment of light in this case, any grant of a right to it, that is, any covenant not to build on the adjoining soil to the injury of the light, could be presumed. It was not so at law, nor was it so by the 3d section of this statute. This section, it was observed, was no doubt differently worded from the others, and the acquisition of right to light was much favoured, as a far less time gives an indefeasible right ; and if there be an actual enjoy- ment for twenty years, such as this 3d section contem- plates, a right is gained though the owner of the adjoining property be the occupier, and be for the whole period under disability to grant. It also differs from the 2d section in not requiring that the enjoy- ment should be by a person " claiming right " in express terms. But notwithstanding the absence of these words in the 2d section, the 3d section, it was held, converts into a right such an enjoyment only of the access of light over contiguous land as has been had for the whole twenty years in the characta^ of an easement, distinct from the enjoyment of the land itself, and the statute puts this species of negative casement on the same footing in this respect as those positive easements provided for by the other sections, all of which after long enjoyment as casements are invested with the quality of rights. The access of light under ENJOYED AS AN EASEMENT. 171 this section must have been enjoyed for twenty years, ivithout interruption, not in the sense of an unin- terrupted or continuous user, but "without such inter- ruption as is mentioned in the subsequent section, that is, an interruption submitted to for one year after the party interrupted shall have had notice thereof, and of the persons making or authorizing the same to be made. This point was determined in Flight v. Thomas, 1 1 AdoL & EIL and 8 Cla. & Fin. From this it follows that the legislature contemplated such an enjoyment as could be interrupted by the adjoining occupier, at least during some part of the time. The forms of pleading in section 5 mightha applicable to such a case, and under that the right must have been immemorially enjoyed, or the enjoyment of the light must have been as of right by the occupier of the tenement in respect whereof it is claimed for twenty years. The enjoyment of the light connected with the occupation of the land itself for twenty years would not support that allega- tion. This construction puts all the claims provided for by the act on a similar footing, and dispenses with the giving of some evidence of immemorial usage, or of relying on the fiction of a lost grant. This clear explanation of the operation of the 3d section was given by Parke, Baron, in delivering the judgment of the Court in Hartridge v, Warwick. And it was also decided that the plaintiff could not maintain that the lights were immemorially enjoyed, or had been granted prior to the beginning of the sixty years, for as far back as the memory of witnesses went the house and garden were in the possession of the same person ; and if no grant could bo presumed from the enjoyment of the lights in that condition of the property, nor,e could 172 now THE TERM OF ENJOYMENT be presumed before, for there was no evidence to show tliat tliey were ever occupied otlierwise. 19. But althougli the statute prevents tlie claim from being defeated by showing only that the right, way, or other matter Mas first enjoyed at any time prior to the period limited by the act, yet upon the thirty years' bar in the case of profits a prendre, and upon the twenty years' bar in the case of easements, the claim may be defeated in any other way by whicli the same when the act passed was liable to be defeated ; that is, (J) by the same means by which a similar claim by custom, ju'escription, or grant, would be defeasible, and therefore it may be answered by proof of a grant or licence, written or parol, for a limited period, com- prising the whole or part, for example, of the twenty years, or of the absence or ignorance of the parties interested in opposing the claim, and their agents, during the whole time that it was exercised. 20. The 3d section, as to light, excludes by its general provision the custom of London (?/). v.JLa.*^^ 21. The act, as we have seen, limits the time whicli ■'^0 " 7'jn the several cases is to create a bar, and all the peiiods are to bo taken next before the suit or action : and this has been literally followed, so that time cannot be reckoned with reference to the trespass complained of, but depends on the period when the action or suit was brought in which the claim was brought into question {a:). But no interruption is to operate unless {t) Bright r. Walker, 1 Cro. & Wels. 77; Jones r. Price, 8 Bing. Mees. & Ros. 211 ; ;;er Parke, B. N. C. 52 ; Lawson v. Langley, 4 («) Salters' Company v. Jay, .T Adol. !k Ell. 090 ; Richards v. Fry, A.lol. & Ell. N. S. 109, 7 Adol. & Ell. 098; Flight r. Tho- (.r) Wright r. Williams, 1 .Meps. mas, « Cla. ^H: Fin, 242. IS TO BE COMPUTED. 173 acquiesced in for a year (j/). An interruption in tlie last year of the twenty years, for example, is the same as an interruption of the same duration in the middle of the twenty years. Therefore an enjoyment for nineteen years, and a portion of another year, will establish the right to light, for example, provided the action be brought before the interruption has continued for the full period of a year (z). 22. But user for the proper number of years before the commencement of the action is unavailing, if the last four or five years are unaccounted for : tliere is no case to be left to the jury («). 23. The twenty years' user under section 2 may be made out, although tliere was a cessation of enjoyment during those years, under a temporary agreement, or a new way was enjoyed by way of substitution, under a parol agreement, during part of the i)eriod ; for the user of the new line maybe considered as substantially an exercise of the old right : for if I have a right over another's land, and he for a time gives me a considera- tion for ceasing to exercise it, I enjoy the right while receiving the compensation (6). 24. A claim dej)ending upon an enjoyment for forty years may bo supported by evidence of enjoyment beyond that period ; for if evidence of user beyond forty years were to be excluded, it might be that after (j/) Sec. 4 ; Wright v. Williams, 788 ; Wright v. Williams, 1 Mees. 1 Mees. & Wels. 77 ; Richards v. & Wels, 77. Fry, 7 Adol. & Ell. 608. (a) Parker r. Mitchell, 11 Adol. (z) Flight V. Thomas, 11 Adol. & Ell. 788. & Ell, 688 ; in the marginal note (J) Payne v. Shedden, 1 Mood, the nineteen years are accidentally & Roh. '382 ; 3 Adol. & Ell. N. S. omitted ; 8 Cia. & Fin. 231 ; Par- 585. ker y. Mitchell, 11 Adol. & Ell. 174 SAVINGS FOR 1:)ISAD1L1T1ES. the caf^o had been established as far as thirty-eight years back, a discoiitinuaiice of proof might occur as to the two or three preceding years, and the party might fail because he was unable to carry his case on without going to the distance of forty- one (c). It 25. Although twenty years' user in the absence of an express grant would be necessary for the acquisition of a right of way, yet twenty years* cesser of the use, in the absence of an express release, is not necessary for its loss, for the cesser of use, coupled with an act clearly indicative of an intention to abandon the right, 1 would destroy it without any reference to time (^). 26. The savings for the usual disabilities (which, however, do not include imprisonment or absence be- yond the seas), as we have seen, do not apply to cases where the right or claim is by the act declared to be indefeasible ; but the act expressly adds, as matters which w^ll prevent time from running : 1 . Where the person capable of resisting any claim is tenant for life ; 2. The pendency of an action or suit which shall have been diligently prosecuted until abated by the death of any party thereto (e) (I). During the period of a tenancy for life, the exercise of an easement will not affect the fee ; in order to do that there must be the proper period of enjoyment against an owner of the fee (/). Upon a claim under the 1st section, (c) Lawson v. Langley, 4 Adol. {e) Sec. 7- & Ell. 890. (/) Bright f. Walker, 1 Cro. (cZ) The Queen v. Chorley, 12 Mees. & Ros. 222, /ler Curiam. Adol. & Ell. N. S. 515. (I) This does not repeal, hut must be reconciled with the enactment in sect. 4, that the periods limited are to be taken to he those next before some suit or action wherein the claim or matter to which such period may relate shall be brought in question. LIFE estate: light. 175 founded on thirty years' enjoyment (^), it was urged that if there was a tenancy for life during any part of the thirty years, the time of that tenancy was to be excluded, and the thirty years could not be computed at all ; but it was held that the 4th and 7th sections are to be read together, so that the period is to be thirty years before the action, excluding in the compu- tation of these thirty years any tenancy for life, that is, thirty years' enjoyment, either wholly before the tenancy for life, if it be still subsisting, or partly before and partly after, if it be ended. 27. The last provision in the act, viz. section 8, does not, as w^e have seen, relate to light. As to the ease- ments within it, it excludes from the computation of the forty years the time the land or water shall be held for life, or any term of years exceeding three years from the granting thereof, but only in case the claim shall within three years after the end of such term be resisted by the reversioner (//) ; thus giving the reversioner of the land or water a reasonable time to resist the claim of the easement, after the subject over which it is claimed falls into possession where an indefeasible title is claimed from forty years' enjoyment. 28. The reader will have observed that the expres- sion in the 8th section of the statute is "when any land or water, upon, over, or from which any such way or other convenient watercourse or use of water" shall have been enjoyed, &;c., the time of the enjoyment of " any such way or other matter as herein last before mentioned," &c. It is manifest that by a clerical error {(/) Clayton i^. Corby, 2 Adol. & Ell. N. S. 813 ; Pye v. Mumford, 11 Adol. & Ell. N. S, 666. (//) 4 Mees. & Wels. 500. 176 THE BAR MOST EXTEND TO ALL. the Avord " convenient " lias been substituted for " easement" ( i) ; but the word thus introduced has no connexion uith the clause ; and as with reference to the preceding clauses the meaning is obvious, the courts, it should seem, may well read the section with the word casement notwithstanding the words Avhich follow in the section, for this is not a case in which operation is to be denied to a word in an act of Parliament, but the mere rtyection of a word to which no sense can be given iu the place where it is found, and the substitution from the context of the word clearly intended, in the precise place where it was introduced in a preceding clause to wliich this section has an immediate reference. 29. The statute nowhere contains any intimation that there may be different classes of rights, qualified and absolute, — valid as to some persons, and invalid as to others. From hence it has been concluded that an enjoyment of twenty years, if it give not a good title against all, gives no good title at all; and it was accordingly held that as an adverse user of right for twenty years or forty years against a bishop's lessee for life might be disputed by the bishop within three years after the expiration of the lease, it gave no title against the bishop, and consequently not bindiug all it bound no one; not even the lessee against whom the right had been adversely enjoyed (/c). This, it must be admitted, is a question of great nicety. 30. It remains to consider shortly the provisions as to pleading and the restrictions of presumptions. As to the latter, section G excludes any presumption from {i) 1 Mees. & Wels. 77. (/i) Blight V. Walker, 1 Cro. Mees. & Ros. 211. PLEADIN'GS. 177 proof of the exercise of right during a lean period than the previous clauses require. Formerly an immemorial enjoyment was presumed from proof going back to the extent of living memory, now, by section 6, that is no longer permitted, but no difterence is made as to the proof of intermediate user (/). 31. The w^ords in the 5th section as to the allegation in pleadings of the enjoyment as of right have the same meaning as the words clairninfj right in the 1st and 2d sections, which we have already considered. If parties choose to adopt this form, which is optional, they must follow the very words {m). 32. In pleading, the time of enjoyment must be stated with reference to the directions in the 4th sec- tion ; but although that section speaks of the period next before the action or suit, the word next may be omitted in the pleadings (?z), as it does not alter the sense (o). 33. A licence in writing, if it cover the whole time, must be replied to a plea of forty years' enjoyment, and the same of a parol licence ; in case of a plea for twenty years, a parol licence may be replied to a plea of a twenty years' enjoyment, though not to an allegation of forty years' enjoyment {p) ; but an asking leave, or an agreement commencing within the period, may be given in evidence under the general traverse, notwithstanding the Avords of the 5th section, for the continuity is {I) 3Adol.&Ell.N.S.o88,y>o- («) Jones t'. Price, 3 Bing.N. C. Patteson, J. ; Bailey v. Appleyard, 52 ; for the usual niodo of pleading, 3 Nev. & Per. 200 ; 8 Add. & £11. see Lord Stamford v. Dunbar, 13 161. Mees. & Wels. 827. (/rt) Tickle V. Brown, 4 Adol. & (") 7 Add. & Ell. 707. Ell. 869 ; Hdford v. liaukinson, o (/>) 4 Adol. & Ell. .37-3. Add. & Ell. N. S. .384. U 178 PLEADINGS IN REGARD broken, which is inconsistent M'ilh the simple fact of enjoyment during the forty or twenty years (g). It was plain, the Court observed, that the legislature treated the matters required to be specially pleaded as consistent " with the simple fact of enjoyment ; " and the words, as of inght, cannot be confined to an adverse right, as far as evidence shows ; for if so confined, such enjoyment, once confessed, could not be avoided by replying that it was held by contract, which is not adverse. So enjoyment as of right cannot be confined to a strict legal right ; for a consent in writing, not under seal, of which the 2d section speaks, could not account for such enjoyment. It seemed, therefore, to the Court, that the words eujoymcnt of the inyht — which must have the same sense as the words claiming right thereto, in the 2d section — must mean an enjoy- ment had openly, without particular leave at the time, by a person claiming to use it without danger of being treated as a trespasser; as a matter of right, whether strictly legal by prescription and adverse user, or by deed conferring tlie right, or though not strictly legal, yet lawful, to the extent of excusing a tresjiass, as by a consent or agreement, contract or licence, in case of a plea for twenty years (r). And in another case the Court of Common Pleas observed that the words of the 5th section, not inconsistent with the simple fact of enjoyment, were referable, as they understood the statute, to the fact of enjoyment, as before stated in {q) Tickle V. Brown, 4 Adol. & Ilankinson, 5 Adol. & Ell, N. S. Ell. 369 ; Beasley v. Clarke, 2Bing. 584. N. C. 705, which is said to be a {r) 4 Adol. & Ell. 383, joer Lord strong case ; 11 Adol. & Ell. N. S. Denman ; Moninouthire Canal 673 ; Clay v. Shackeray, 2 Mood. Company v. Harford, 1 Cro. Mees. & Rob. 244 ; Kinloch r. Nevile, 6 & Rose. 614 ; 2 Bing. N. C. 709; Mees. & Wels. 705 j Ilolford v. 4Mees. &\Vels. o01,5?>). 37. It has been observed, that as far as these i)rovi- sions bear upon title, a i)urchaser of course should see tliat the enjoyment of the easement has been not only for tlie term required by the act, but that the savings or exclusions of time prescribed by the act have not prevented the right from becoming absolute, and a purchaser would therefore have to be satisfied of the nature of the estates of the owners of the land or water over or from which the rights have been enjoyed ; and it should be borne in mind that every one of the rights may be defeated by showing that it was enjoyed by agreement in writing, and that the limited bars of thirty years and twenty years are open to impeachment in any other Avay by which such a claim can be de- feated at law than the showing that it was first enjoyed l)rior to such thirty years or twenty years (c). (a) 11 Adol. & Ell. N. S. 6U8, G70. {/j) Pye r. Mumford, 11 Adol. & Ell. N. S. (500. (c) Sugd. Concise View, 871. [ 181 ] CHAPTER II. OF TITLE UNDER TENANT IN TAIL : 3 & 4 WILL, 4, C 74, SECTION I. OF DEFECTS IN RECOVERIES; OF EXISTING AGREEMENTS; AND WHAT THE ACT ABOIJSHFS. 1. Ancient deviesne. 2. Court without jurisdiction. 3. Errors apjjarent from deed o- mended in fines, 4. So in recoveries. 6. How acted npon. 6. "j Recoveries defective rendered 7. J valid, 8. Fines and recoveries aholished. 9. JVarranties by tenan t in tail void against issue, t^r. 10. Statute as to estates tail ex prov. viri repealed. 1 ] . Existing agreements to be 2)er- formed hi/ deed. The whole law as to barring estates tail is by a late statute («) altered (I), and a new mode of unfetterin"' (fl) 3& 4 Will. 4, C.74 (August 28, 1833). (I) This act does not operate by relation on the 1 Will. 4, c. Go ; see ex parte Clayton, 3 Myl. & Kee. 247. The 1st section declares that in the construction of the act the words " lands " shall extend to manors, advowsons, rectories, messuages, lands, tenements^ titl'.es, rents, and hereditaments of any tenure (except copy of court roll), and whether corporeal or incorporeal, and any undivided share thereof, hut when accompanied by some expression including or denoting the tenure by copy of court roll, shall extend to manors, messuages, lands, tenements, and hereditaments of that tenure, and any undivided share thereof; and the word "estate" sliall extend to an estate in equity as well as at law. and shall also extend to any interest, charge, lien, or m3 182 OF ESTATES TAIL. estates in settlement is introduced. We may divide the leading subjects of the act as follows: 1. Where incumbrance in, upon, or affecting lands, either at law or in equity, and shall also extend to any interest, charge, lien, or incumbrance in, upon, or affecting money subject to be invested in the purchase of lands ; and the expression "base fee" shall mean exclusively that estate in fee simple into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred ; and the expression " estate tail," in addition to its usual meaning, shall mean a base fee into which an estate tail shall have been converted ; and the expression " actual tenant in tail " shall mean ex- clusively the tenant of an estate tail which shall not have been barred, and such tenant shall be deemed an actual tenant in tail, although the estate tail may have been divested or turned to a right ; and the expres- sion " tenant in tail " shall mean not only an actual tenant in tail, but also a person who, where an estate tail shall have been barred and con- verted into a base fee, would have been tenant of such estate tail if the same had not been barred ; and the expression " tenant in tail entitled to a base fee " shall mean a person entitled to a base fee, or to the ulti- mate beneficial interest in a base fee, and v/ho, if the base fee had not been created, would have been actual tenant in tail ; and the expression " money subject to be invested in the purchase of lands " shall include money, whether raised or to be raised, and whether the amount thereof be or be not ascertained, and shall extend to stocks and funds, and real and other securities, the produce of which is directed to be invested in the purchase of lands, and the lands to be purchased with such money or produce shall extend to lands held by copy of court roll, and also to lands of any tenure, in Ireland or elsewhere out of England, where such lands or any of them are within the scope or meaning of the tnist or power directing or authorizing the purchase; and the word "person" shall extend to a body politic, corporate, or collegiate, as well as an individual ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the plural number shall extend and be applied to one person or thing as well as several persons or things ; and every word importing the masculine gender only shall ex- tend and be applied to a female as well as a male ; and every assurance already made or hereafter to be made, whether by deed, will, private act of Parliament, or otherwise, by which lands are or shall be entailed, or agreed or directed to be entailed, shall be deemed a settlement ; and every aj)pointnicnt made in exercise of any power contained in any set- tlement, or of any other power arising out of the power contained in any settlement, shall be considered as part of such settlement, and the TITLE TO ANCIENT DEMESNE. 183 defects in existing recoveries are remedied; 2. What the act abolishes ; 3. How existing agreements are to be performed ; 4. The power of tenant in tail ; 5. The effect of his partial dispositions ; 6. Who shall be pro- tector ; 7. His office and power ; 8. Where a base fee shall be enlarged without a deed ; 9. What deeds are to be executed by tenants in tail and by protectors ; 10. Of copyholds; 11. Of bankrupts; 12. Of money; 13. Of dispositions by married women ; and lastly, of the enrolment and acknowledgment of deeds, and of confirming a purchaser's voidable estate. 1 . Fines and recoveries of lands in ancient demesne, levied or suffered in superior courts, are rendered valid as between the conusors and the vouchees, and all persons claiming under them, although they may still be re- versed as to the lord (6). And although there shall have been no previous reversal of fines or recoveries of ancient demesne levied or suffered in the superior courts, yet fines or recoveries levied or suffered in the manor courts are made operative notwithstanding the change of tenure by the former fines or recoveries (c). These provisions remove the difficulties which constantly arose upon titles to lands in ancient demesne ; and writs of deceit are abolished, and the tenure of ancient demesne restored, where the right of the lord had been (b) Sec. 4. (c) Sec. 5. estate created by such appointment shall be considered as having been created by such settlement ; and where any such settlement is or shall be made by will, the time of the death of the testator shall be considered the time when such settlement was made : provided always, that those words and expressions occurring in this clause, to which more than one meaning is to be attached, shall not have the different meanings given to them by this clause in tliose cases in which there is anytliing in the subject or context repugnant to such construction. 31 4 184 DEFFXTS IN RECOVEKIES ETC. REMEDIED. ncknowlodged MJtliin twenty years, notwithstanding unreversed fines or recoveries in the suj)erior courts {(!)• 2. And fines and recoveries are made valid althongli levied or suffered in a court Mitliin whose jurisdiction the lands do not lie, or in a court unlawful or hold without due authority, where persons shall have assumed to hold courts in which fines or recoveries have been levied or suffered (c). 3. And errors apparent from the deed declaring the uses of any fine in any indentures, record, or any of the proceedings of such fine, in the name of the conusor or conusee, or any misdescription or omission of lands intended to have been passed by such fine, are cured by the act itself (/). 4. So in like manner errors apparent from the deed making the tenant to tlie prcecipc m a recovery, in the exemplification, record, or any of the proceedings of such recovery, in tlie name of the tenant, demandant, or vouchee, in such recovery, or any description or omis- sion of lands intended to have been passed by such re- covery, are cured by the act itself ((7). 5. And the Court of Common Pleas will not, to satisfy the scruples of a purchaser, amend a fine or recovery which the act has declared valid without amendment (If), nor indeed docs it seem that the Court has now jurisdiction in such cases. 6. Recoveries, whether suffered before or after the act, are rendered valid, although the bargain and sale to make the tenant to the prcrcijjc was not enrolled in (d) Sec. 0. (e) Sec. 5 ; s. 12, post. (/) Sec. 7. (//) Lockington's case, 1 Bing. (ff) Sec. 8; see ;)o.9f, s. 12 ; and N. C. S.')5 ; see Totton's case, 6 see s. 9, saving the jnvisdirtinn in Bing. N. C. 020, where the omis- cases not provided foi-, sion appears only by affidavit. DEFECTS IN RECOVERIES, ETC. REMEDIED. 1^5 due time (?'), and no recovery (k) is to l)e invalid in con- sequence of any person Iiaving* a legal estate not having' joined in making- the tenant to the 2^ra'cipe, provided the tenant shall have been made by a person who had an estate in possession not less than for a life, in the rents or surplus after payment of charges thereon, and whether there be any actual sur])lus or not ; and an estate is to be deemed to be in possession notwith- standing any prior leases for lives or years at a rent, or any term of years without rent. But this is properly confined by certain exceptions in the act, for it does not extend to fines or recoveries so far as they had been reversed ; nor where any person who would have been barred by any fine or recovery, if valid, has had a?ii/ dealings with the estate on the faith of the same being invalid ; nor where the property, at the time of passing the act, was in possession of any person in respect of any estate which the fine or recovery, if valid, would have barred ; nor does it extend to any fine or recovery which, before the passing of the act, any court of com- petent jurisdiction had refused to amend, nor are pend- ing proceedings for impeaching any fine or recovery affected, but a special provision is made for such cases (/) (I). 7. Subject to these savings, uithout which titles would have been more endangered than supported by the act, all recoveries are now valid, altliough tliere was only an equitable tenant to the ^^rrt'cZ/Jc, and the estate (?) Sec. 10. (X) Sec. 11. {J) Sec. 12. (I) Section l.T provides for tlie deposit of the records of fines and re- coveries ; see 5 & 6 Will. 4, c. 82. As to defects in fines and recoveries of the late courts of great sessions in Wales, &c., and the onvolment thereof, see 5 & Vict. c. ,32. 186 FINES AND RECOVERIES ABOLISHED : WARRANTIES. tail was a legal one. These are excellent provisions, and they have operated favourably upon titles. 8. Fines and recoveries of lands of any tenure are altogether abolished after the 31st of December 1833 (I), except where parties intending to levy a fine or suffer a recovery, had, on or before that day, sued out a dedimus or any other writ in the regular proceedings of such fine or recovery (m). 9. And all warranties, after the 81st December 1833, by tenant in tail are made void against the issue in tail, and all persons in remainder, or who take in defeasance of the estate tail {?i). 10. And in regard to future settlements the statute 11 H. 7, c. 20, as to estates tail ex provisione viri, is repealed (o). 11. Where under an agreement entered into before the 1st January 1834, any person is liable to levy a fine or suffer a recovery, or to procure some other person to do so, the engagement is to be performed in the mode substituted by the act for fines and recoveries, as far as it applies, and beyond that, a deed declaring the object is made operative (^;). (»i)Sec. 2. (n) Sec. 14. (o) Sec. 17. (p) Sec. S. (I) And fines already levied have the force of fines with proclama- tions, witli an exception. So that proclamations in general cases do not i-equire to be proved, 11 & 12 Vict. c. 70. [ 187 ] SECTION 11. or THE POWER OF TENANT IN TAIL. 1. He can acquire the fee simple. 2. Against whom. 3. Estates tail in contingency or divested. 4. Persons taking in defeasance of the estate tail. 6. Boiler v. Halifax, o f Powers. - „ rLord Scarborough's case. 11. Prior estate, to pass, must be conveyed. 12. Any disposition ejicttial. 13. Contracts : charges, (S;c. 14. Contracts may be enforced, but not to bind the entail under the act. 15. Estates tail ex pi-oviaione viri. 16. Confirmation of voidable estate. 18. Base fee may be enlarged. 19. Mortgage or other litnited piir^ pose : limited estate charge or incumbrance operate va- riously. 20. Explanation. 2 1 . Union of base fee and remainder in the same person, the former enlarged. 1. After the 31st December 1833, every actual tenant in tail, that is, the tenant of an estate tail which shall not have been barred, and such tenant will be deemed an actual tenant in tail, although the estate tail may have been divested or turned to a right («), whether in possession, remainder, contingency, or other- wise, has power to dispose of for an estate in fee- simple absolute, or for any less estate, the lands entailed, saving the rights of persons in respect of estates prior to the estate tail (b). 2. The disposition is made good against all persons claiming by force of any estate tail vested in, or which might be claimed by, or which, but for some previous (a) See s. I. {h) Sec. 15. 1S8 POWER OF TKNANT IN TAIL. act, would have ])ecii vested in or miglit have been claimed by the person making the disposition, at the time of his maJcing the same ; and also against all per- sons, including the Crown, whose estates are to take effect after the determination, or in defeasance of any such estate tail, saving the rights of persons in respect of estates prior to the estate tail, and the rights of all other persons except those against whom such dis- position is by the act authorized to be made (c). This provision has been held to extend to an estate tail granted by Charles the Second to one of his illegiti- timate children, for love and affection (d). 3. This provision enlarges the power of disposition by a tenant in tail, for a tenant in tail whose estate was divested, or a tenant in tail in contingency, could not have suffered a recovery : the former could not have made a tenant to the prceci2)e, and the latter could not by coming in upon the voucher have barred the remainders ; but now, by the express terms of the act, a tenant in tail in contingency is authorized to bar the estate tail and remainders over. The operation of such a disposition depends wholly upon the statute : it seems clear that the fee obtained by the disposition will be subject to the like contingency as the estate tail was liable to, and it is apprehended that any vested remainder will notice affected unless and until the contingency happen, when the bar will become complete. The only effect of the disposition imtil the contingency happen, ought to be, to substitute a con- timrent fee for a contingent estate tail. There is no ground in law why a vested remainder in fee should bo (r) Sec. 1.5. (d) Duke of Grafton i', London and Blrmingliani Railway Company, 6 Bing. N. C. 27. BAR OF CONTINGENT ESTATE TAIL. 189 disturbed before that period, because although a con- tingent remainder in fee prevents the creation of a vested remainder after it, yet there is less reason Avhy by the operation of the statute, subsequent to the valid creation of a contingent estate tail with a vested remainder over, the vested remainder should not sub- sist with the contingent remainder in fee under the statute, than there was or is that a vested (base) fee and a remainder in fee are allowed a valid coexistence by the subsequent conversion of the estate tail into a base fee^ although those two estates could not have been, and still cannot be, created in the same estate (e). The case of a tenant in tail in contingency should have been separately provided for. It is expressly within the act, but its operation is left to the one general clause, that his alienation shall be valid against persons claiming the estate tail, and also against all persons whose estates are to take effect after the determina- tion of, or In defeasance of such estate tail. Where the person is uncertain, the entail cannot be barred. Where the person is certain, but the contingency de- pends upon the happening of a certain event, there is no objection to the tenant in tail barring the contin- gent remainder, and all remainders altogether depend- ing upon it. If there are alternate contingencies, of course a l^ar by the tenant in tail under one contin- gency would not affect the estates to arise upon the otlier contingency, if the event happened upon w^liich they depended. But if an estate were limited to A for life, remainder to B in tail upon a contingency, Avith remainders over not depending u])on the contin- gency, but vested, would those remainders be affected (o) See 1 Ilayc4' Conv. otli edit., 1U7, n. 190 OPERATION OF STATUTE DEED by B's bar of liis estate tail under the statute ? They are, no doubt, to take effect after the determination of the contingent remainder in tail if that take effect, but they are also to operate although that remainder never does arise : to allow the contino^ent remainder-man in tail to bar the vested remainders over, would be to strike the contingency out of the original settlement, which was not the intention of the act ; and although therefore, in the words of the act, the tenant in tail in contingency has power given to him to dispose of the estate for an estate in fee-simple absolute, yet this must, upon the context, be understood to mean a fee-simple like the estate tail, subject to the will of the donor, and therefore still subject to the original contingency, although if, and when the event hap- pen, the fee acquired under the statute will become vested. 4. The disposition is made a bar to all persons whose estates are to take effect after the determina- tion, or in defeascmce of the estate tail, saving estates prior to the estate tail. This will no doubt be construed to mean the same operation which the old law gave to a common recover}', although it is difficult to accurately define the ojjeration ; nor do these words afford an accurate definition, for there are many estates which take effect in defeasance of the estate tail, which a disposition under the statute will not bar, but then they will be treated, as they in strictness are, as estates prior to the estate tail. However, all estates Avhich, i^roperly speaking, do take effect in defeasance of the estate tail, will be barred by a statute deed, therefore an executory or shifting limitation over after an estate tail, to take effect in defeasance of, and not IN BARRING POWERS, &C. 191 to await the regular determination of the estate tail, "will be barred. 5. It was observed by the Court, in giving judgment in Doe v. Lord Scarborough, that this section (15) is expressed in general terms, and proves only, what in reality is not disputed as a general proposition, viz. that a recovery will not affect estates prior to the estate tail of which it is suffered (f). 6. In the case of Roper v. Halifax (g) there was a settlement with a power of sale in the trustees, with the consent of the tenant for life ; a recovery was suf- fered, in which the tenant in tail only was vouched, which was to enure to confirm the estates previous to the estate tail, and the powers annexed to them, and subject thereto to the joint ai3pointment of the father tenant for life and son tenant in tail under the settle- ment. The deed making the tenant to the prcecipe contained the 100,000/. clause, as it is called, and the estate was vested in the tenant to the prcecipe for the joint lives of him and the tenant for life only. The father and son made a joint appointment (subject to the aforesaid estates and powers) to new uses ; and the trustees and the father and son conveyed (subject as aforesaid) to new uses, recapitulating the old ones pre- viously to the estate tail, and new powers of sale, &c. were given. It was held, that the power of sale under the original settlement was not destroyed by the reco- very or by the new settlement, and yet, in the words of this statute, the estate created by it would take effect in defeasance of the estate tail ; but it was con- sidered in law as creating an estate having priority (/) 8 Adol. & Ell. 43. {g) MS. 8 Taunt. 845 ; 1 Sugd. Pow. 78. rj2 POWEUb WHERE JNOl BARRED. over the estate tail, and this law clearly is not altered by tlic statute. 7. The Court observed, in the case of Roper v. Halifax, that this was a naked power in the trustees, to be exercised with the consent of the husband and wife, or the survivor. It was said by the defendant that this power was destroyed by the recovery. This proposition, so contrary to justice and to the intent of the settlors, it was incumbent on those who contended for it to establish by principle or authority, and they had done neither. This was a power antecedent to the estate tail, which, if ever it were exercised, must act on the land antecedent to the estate tail, and before the estate tail can take place. This power remains undisturbed by the recovery. 8. Where a power really is antecedent to an estate tail, as a power to A to appoint, and in default of, or until appointment to B in tail, no doubt B's recovery will not bar the power any more than it would an actual preceding' estate, and if, by the intention, the power is to take precedence of the estate tail, it is im- material that the estate tail is first limited, and the power follows it. The true ground of the decision in Roper V. Halifax was, that as the power was to be ex- ercised during the lives of the tenants for life, or the survivor, and not after, it was to be construed as if, being annexed to the life estates, it had been originally made to override the estate tail, in which case the estate tail would have been limited, after the life estates and the jiovrer, in default of, and until the exe- cution of the power. The difficulties in the case were not grappled with by the Court. In the connnon case of a strict settlement Mitli an unlimited power of sale POWERS WHERE NOT BARRED. 193 and exchange in trustees, it is not doubted tliat a re- covery by the tenant in tail, after the death of the tenant for life, would bar the i)ower. 9. The decision in Roper v. Halifax very much embarrassed the courts in the great case of the Earl of Scarborough. That turned upon a shifting clause in case of accession to the title. The Court of King's Bench considered a recovery suffered by the tenant for life and tenant in tail, as having barred all the remainders over ; but they held, that the clause did not Ojierate merely to defeat the particular estates and accelerate the remainders, but created neiu estates, which overrode the estate tail, and were therefore not affected by the recovery. In the Exchequer Chamber this decision was reversed, upon the ground that the recovery destroyed all the old remainders, and the proviso created no new ones (//). Tlie Court observed, that considerable reliance was placed, by the party claiming against the recovery, on the case of Roper V. Halifax. That case might, however, be admitted to have been i-ightly decided, without weakening the ground upon which their judgment rested ; for it might well be held, that the recovery suffered in that case by the tenant for life and the remainder-man in tail should not extinguish a power which was attached to the estate of the trustees for preserving contingent remainders during the estate of the tenant for life, nor bar the new estates created by the exercise of that power ; and yet, at the same time, the recovery suffered in the present case by the tenant for life in possession and the next remainder-man in tail might be sufficient to bar the old estates expectant on such estate tail, (h) Lord SrarboroTig]i r. Doe d, Sjn-rle, ti Adol, & IvlL Of»7. N 194 DISPOSITIONS BY TENANT IN TAIL. which continued unaltered by the proviso, except as to the time of enjoyment. 10. In most cases the object of a power is to intro- duce new estates ; but still that circumstance alone will not preserve the power from being barred by a recovery. It is, perhaps, to be regretted that the ques- tion was not more fully considered, whether, assuming- that the proviso in Lord Scarborough's case did create new estates, the prior recovery by the tenant for life and next vested remainder-man in tail, did not bar the proviso, and consequently the new estates, which, but for the recovery, would have been created by it. 11. It will be observed, now that the owner of the prior estate may consent to the disposition by the tenant in tail, without conveying his own estate, that no question will in future arise in regard to the opera- tion of the conveyance by the tenant for life upon the powers given to him by the settlement. But where the prior estate is intended to be transferred, it must be so in the usual manner, although not necessarily by the statute deed. 12. It is hardly necessary to observe, that any dis- positio7i by a tenant in tail will be operative under the act ; it may of course Ijc for the sole puri^ose of barring the estate tail and remainders. This is not a new operation, for it had long been the established mode of barring estates tail in the West India Islands. And it may here be observed, that the disposition will bo operative, whether the estate tail was created or agreed or directed to bo created by deed, will, private act of Parliament or otherwise, and all appointments under original or derivative powers are deemed parts of the original deed ; and as to wills, the time of the testator's CONTRACTS AND CHARGES BY TENANT IN TAIL. 195 death is to be considered the time when the settlement was made (i). But of course a deed executed under the act can only have the operation conferred upon it by the act : sucli a deed executed by a tenant for life, therefore, can have only an innocent operation, as at common law, for no tortious force is given to it by the act ; indeed, not having- been executed by a tenant in tail, the deed can have no statutable operation (k). 13. As to the manner of the disposition, the act draws a clear distinction between dispositions resting in contract, M'hich are not to be of any force at law or in equity under the act (Z), and interests actually created ; for the tenant in tail is empowered, as we have seen, to dispose of the lands entailed for an estate in fee-simple, or for any less estate (w), — that is, any estate in equity as well as at law, and also any interest, charge, lien, or incumbrance in, upon, or affecting lands either at law or in equity (ji). And the act, in de- claring the operation of estates created for a limited purpose, provides that if by a disposition under the act by a tenant in tail, an interest, charge, lien, or incum- brance shall be created without a term of years absolute or determinable, or any greater estate for securing or raising the same, such disposition shall in equity be a partial bar only(o). Interests, charges, liens, or incumbrances may therefore be created by a tenant in tail under the act, without raising an actual estate to secure them ; but they must be created, and not left to rest in contract, A mere contract to make a mort- gage upon an entailed estate would not operate under (i) Sec. ]. (m) Sec. 15, (-^•) Slater v. Dangeifiold, 15 («) Sec. 1. Mees. & Wels. 208. (o) Sect. 21 ; posf, pi. It), 20. (/) Sec. 40. n2 196 CONFIRMATION OF VOIDABLE ESTATE. the ad, but an actual charge executed according- to the proYisions of the act woukl ; and in the common case of a mortgage duly made, and then a further charge, that cliarge may be created just in the old fashion, only it must be by deed, and the deed must be enrolled, and the proper consent obtained according to the act. 14. But there is nothing to aftect contracts as such, and therefore, although tliey will not operate to bar or bind the entail under the act, nor can equity give to them that operation, yet they may still be recovered upon at law, or be made the foundation of a specific performance against the tenant in tail. 15. Women v.ho are seised in tail under existing settlements ex provisione viii are prevented from exer- cising such power of disposition without the assent now required by law; but as to future settlements, the act of 11 II. 7, c, 20, is repealed (p). The power of dis- position is not however extended to tenants in tail within the 34 & 35 H. 8, or who by any other act are restrained from barring their estates tail, or to tenants in tail after possibility of issue extinct (2.' 206 PROTECTOR IN PLACE OF LUNATIC. made irresponsible, and is at liberty to act from mere caprice, ill will, or any bad motive : he is enabled to take a bribe for giving consent. It was better to com- mit the protection of the estate to the members of the family who would successively enjoy the settled estate, and would best understand their own interests, than to strangers, who M'ould have the statutory privilege of "being uncontrollably perverse and corrupt (;/). 11. The act preserves to a bare trustee under any existing settlement, who would have been the proper person to make the tenant to the praecipe, the right as the protector of such settlement (o) during the conti- nuance of the estate, conferring on him the right to make the tenant to the praecipe (p). 12. An infant tenant in tail has been ordered to con- vey an estate decreed to be sold for payment of debts by an assurance under this act (q). 13. And as the act enables a tenant in tail at any period to acquire the fee, a contract of sale by him will be enforced, although the entail remains in him unbarred, and the conti^act will not bind the issue in tail or the remainder-man (r). 14. The act substitutes (s) the Lord Chancellor in the place of a protector who shall be a lunatic, and the Court of Chancery in the place of a protector who shall be convicted of treason or felony (I), or of a protector, (>j) Bankes v. Le Despencer, 11 (*?) 1 Will. 4, c. 47, s. 11 ; Pen- Sim. 508. The Vice-Chancellor ne3' v. Pretor, 9 Sim. 135 ; Rad- also referred to a difficulty, where cliffe v. Eccles, 1 Kee. 130. one of several protectors incurred a (r) Cattcll v. Corrall, 4 You. iJij disability ; see 1 Phill. 258, post. Coll. 228 ; Sugd. Concise View, (o) Sec. 31 ; vide supra, note. 314. Ip) Ni^&post. (s) Sec. 33. (I) There is an omission in the 33d section. The words are : " If any person, protector of a settlement, shall he convicted of treason or felony, PROTECTOR IN PLACE OF LUNATIC. 207 not being the owner of a prior estate under a settlement, who shall be an infant (I), or -where it shall be uncer- tain whether he be living or dead. The Court of Chancery is also substituted during- the continuance of the prior estate where the settlor declares that the per- son who, as owner of a prior estate under such settle- ment, would be entitled to be protector shall not be such protector, and does not appoint any protector in his stead. And also in every other case where there shall be subsisting, under a settlement, an estate prior to an estate tail under the same settlement, and such prior estate shall be sufficient to qualify a protector, and there shall happen to be no protector, the Court of Chancery, during the continuance of the prior estate, is to be the protector (II). 15. The residence of the lunatic in Ireland is imma- terial if the land is in Great Britain, for the question is governed by the locality of the estates, and therefore the Lord Chancellor of Great Britain will be the pro- tector, and not the Lord Chancellor of Ireland (t). 16. AVhere a married woman is tenant for life and (t) In re Graydon, 14 Jur. 157. or if any person not being the owner of a prior estate under a settlement shall be the protector of such settlement, and shall be an infant, or if it shall be uncertain whether such last-mentioned person be living or dead, then the Court of Chancery shall be the protector of such settlement in lieu of the person who shall be an infant, or whose existence cannot be ascertained — omitting the case of a person convicted of treason or felony. But these words have been supplied b}^ imi>lication : 1 Phill. 261. (I) How can this happen? Only adults and persons in esse can be appointed protectors, irrespective of estate. (II) Sect. 48 enables the Lord Chancellor, &c., where he or the Court is the protector of a lunatic or of a settlement, in a summary way to consent to a disposition by tenant in tail, and to make the necessary orders ; but if there is any joint protector, he must also concur. And s. 49 makes the order evidence of the consent. 208 PROTECTOR IN PLACE OF LUNATIC. her husband is convicted of felony, the Court of Chan- cery becomes the i)roteetor in Heu of tlie husband, and the Court and the wife to<»-ether can consent to a dis- o position of the property (w). 17. It has been hehl that where the tenant for life is a lunatic, the Lord Chancellor may enable his son, entitled in remainder to a sum Avhich ought to be laid out in land, of which he would be tenant in tail in re- mainder, to dispose of the fund, subject to the life in- terest (x). 18. But the Lord Chancellor has no jurisdiction where the tenant in tail, although a lunatic, is tenant in tail in possession (?/). Where the Chancellor had jurisdiction, the consent was given where the intention was to provide for the immediate family of the lunatic, but withheld where the object was to give a benefit to one member of the fomily at the expense of the others. As protector of the settlement, the only duty of the Court is to see what, with reference to the interests of the family, it would be proper for the tenant for life to do, and the olyect should be rather to pro- tect the objects of the settlement than to give any benefit to one member of the fimiily to the exclusion of the others {z) . 19. Where a lunatic was tenant for life, remainder to his sons in tail, remainder to his daughters in tail, remainder to the lunatic's brother in tail, with remain- ders over, and his only child a daughter, who of course was tenant in tail in remainder, on her marriage set- (u) /h reWainewright, 11 Sim. (j/) In the iiiattev of Blewitt, 352 ; 13 Sim. 200, reversed 1 Phill. Myl. & Kce. 250. In tlie matter 268 ; see 11 Sim. 527, 528. of'Wood, 3 Myl. & Cra. 2GG. (x) Grantr>, Yea, 3Myl.&' Kee. (r) Lt re Newman, 2 Myl. & 245. ' Cra. 112. POWER OF PROTECTOR. 209 tied the estates (so as to create a base fee, and she and her husband covenanted to enlarge the base fee after the death of the lunatic) on herself for life, remainder to her husband for life, remainder to such j^ersons as she should appoint, and in default of appointment, to the issue of the marriage, with remainder to her heirs, kc, and tlierc was no child of the marriage, the Lord Chancellor said, that looking to the interests of the wife and her children, were he to consent to the en- largement of the base fee, he should exercise his dis- cretion improperly. The effect of so doing would be to take away the estate from the lunatic's family and give it to the daughter's husband («). 20. Nor would the Chancellor as protector consent to a deed which would bar a remainder or reversion in the lunatic (b) ; a case, however, might arise in which it would not be improper to give such a consent. 21. The act does not enable the Chancellor to per- mit the committee to make any lease Avhich the Clian- cellor on behalf of the tenant in tail could not have authorized prior to the passing of the act, for that would be to enable the committee to bar the estate tail pro tanto (c). 22. Having thus provided who shall be the protec- tor, the act then proceeds to declare in what cases liis concurrence shall be necessary. 23. No actual tenant in tail (<:/), not having the re- mainder or reversion in fee immediately expectant oil («) In the mattev of Graydou, (c) /« rcStavkie, 3 Mjl, &: Kee; 1 Mac. & Gor. G55. 247. {h) In re Wood, 3 i\Iyl. & Cia, {d) Sec. 04. 26G. O 210 POWER OF PROTECTOH. his estate tail, under a settlement wliere tliere is a protector, can dispose of the estate to the full extent authorised by the act, without the consent of the pro- tector, but he may without such consent dispose, under the act. of tlie estate entailed against all persons who by force of any estate tail which shall be vested in or might be claimed by, or which, but for some previous act or default, would have been vested in or might have been claimed by, the person making the disposi- tion at the time of his making the same, shall claim the lands entailed. And (e) although the estate be converted into a base fee, yet as long as there is a pro- tector of the settlement by which the estate tail was created, his consent is requisite to the power of dispo- sition given by the act. 24. These provisions preserve the like powers to tenants in tail in remainder which they before enjoyed : they could by a fine with proclamations bar the estate tail and obtain a base fee without the concurrence of the immediate freeholder, in whose place the protector now stands, and they may now do so by a statute deed without the consent of the protector. 25. The power of the protector to consent is made absolute ; his discretion is absolute and uncontrollable even by a court of equity, and any device, shift, or con- trivance to control the protector in giving his consent, or to prevent him in any way from exercising his absolute discretion in regard to his consent, and also any agree- ment entered into by him to withhold his consent, is made void. Nor can his giving his consent be deemed a breach of trust, for he is not to be deemed a trustee of the power (f). Nor are tlie rules of equity in relation to (c) Sec. 35. (/) Sec. 36 ; see 11 Sim. 527. CONSENT CANNOT BE REVOKED. 211 dealings and transactions between a donee of a power and any object of the power in whose favour the same may be exercised, to apply to this case {g). 26. After a consent has been duly given, the pro- tector camiot revoke it (h). 27. A married woman being a protector, either alone or jointly with her husband, may consent as a feme sole(2). (g) Sec. 37. (h) Sec. 44. (?) Sec. 45. SECTION IV. WHAT DEEDS ARE TO BE EXECUTED BY TENANTS IN TAIL AND PROTECTORS, AND OF THE GENERAL OPERATION OF THE ACT. Protectors hy estate, or hy nomi- nation. Estate may be legal or equitable. Bare trustees excluded: opera- tion of act considered. Assign excluded: like conside- ration. Power of tenant in tail en- larged. Power of Lord Chancellor, or of Court of Chancery. Savings of existing settlements. Where a remainder has been sold. Saving of right of bare trustees. Error in dates. Protector by appointment. Limit of power : merely substi- tutionary. Nature of office. Purchaser's title under act. 1. The act then proceeds to provide by what con- veyances a tenant in tail sliall convey. Every disposi- o2 1. A deed of conveyance : married woman : contracts inopera- 12. tive tmder the Act. 13. 2. Protector, how to consent. 15. 3. Enrolment. 4. Leases for a certain term, Sjc. exempted from etirolmetit. IG. 5. Hoio conveyance operates. 17. 6. Equitable jurisdiction excluded. 7. Quasi entails in estates pur autre vie, or in chattels, unaffected. 18. 8. Tenant in tail may still create 19. base voidable fee not tmdcr 20. t7ie statute. 9. Retains his old power by the sub- 21. stitute : greater power in one 22. case. 24. 10 . Appointments operate as part of the settlement. 25. 11 . Issue in tail cannot bar his ex- 26. pectancy. 27. 212 WHAT DEEDS TO BE EXECUTED. lion of lands is to bo effected by some one of the assurances (not being a Avill) by which such tenant in tail could have made the disposition of his estate if a fee-simple absolute ; but it must be made or evidenced by deed, or it will be of no force under the act, at law or in equity. No disposition by a tenant in tail, resting only in contract either express or implied or otherwise, and whether supported by a valuable or meritorious con- sideration or not, will be of any force, notwithstanding such disposition is made by deed. And the concurrence of the husband of every married woman being a tenant in tail, is made necessary («), and her deed is to be acknowledged by him as afterwards noticed. 2. The protector is authorised to give his consent by the same assurance which effects the disposition, or by a deed distinct from the assurance, and to be exe- cuted either on, or at any time before the day on which the assurance shall be made, otherwise the consent will be void ; and the consent will be void unless the deed be enrolled in the Court of Chancery at or before the time when the assurance shall be enrolled : wherever, therefore, the consent is given by a separate deed, these requisitions should be strictly complied with, and it should be executed before any party executes the other deed, and the time of execution should be noticed in the attestations. If given by a separate instrument, it is to be deemed an unqualified consent, unless the particular assurance is referred to, and his consent confined to that disposition (I) ; and, as we have seen, a consent once given cannot be revoked (J)). (a) Sec. 40, (J) Sections 42, 43, 44, 46. (I) If tlie concuiTcncc bliould he signified by a sei)ai'atc deed, we tliink it advisable tliat it should not be allowed to the concumng party to ENROLMENT OF DEEDS. 213 3. No assurance by a tenant in tail under tlie act will have any operation under it, unless it be enrolled in the Court of Chancery Avithin six calendar months after its execution, which enrolment will be sufficient of itself, even where the conveyance is by bargain and sale, within the statute of enrolments (27 H. 8.) (c) ; and every deed required by the act to be enrolled, by which lands shall be disposed of under the act, is, when so enrolled, to operate in the same manner as if enrol- ment had not been required, except that every such deed will be void against any person claiming the lands, or any part thereof, for valuable consideration, under any subsequent deed, duly enrolled under the act, if such subsequent deed shall be first enrolled {d). 4. But the requisition as to enrolment does not apply to a lease for any term not exceeding twenty- one years, to commence from the date of such lease, or from any time not exceeding twelve calendar months from the date of such lease, where a rent shall be thereby reserved, which, at the time of granting such lease, shall be a rack-rent, or not less than five-sixths of a rack-rent (e). But such a lease cannot be granted so as to operate under the act without the consent of the protector, if there be one, and his consent must be (c) Sec. 41. (f?) Sec.74;see^;06';,s.8,pl.2,8. (c) Sec. 41. impose any terms on the tenant in tail, as the necessity of seeing whether he had complied with those terms would then be avoided. This will not prevent the parent or other beneficial owner from requiring- the estate to be settled in a reasonable manner for tlie benefit of the family, as he will always have it in his power to do this by keeping- back the deed of concurrence until he is satisfied that the estate has been settled in such manner as he has required. 1st Rep. R. P. Commissioners, p. 82. The enactment is an im})rovoi!ient upon this suggestion : the letter should never be acted upon. o3 214 ENROLMENT OF DEEDS. by deed ; but it should seem that, altliongh given by a separate deed, it need not be enrolled under the act. 5. To a disposition under the act, a deed, not an indenture, is required (I), but the mode of conveyance is left to the option of the party, and its operation is directed by the former law, except so far as by this law it is made a substitute for a fine or a recovery. Although, therefore, both deeds must be enrolled, yet a lease and release by a tenant in tail will still operate as a conveyance as they did before the late statute ; the lease for a year as a bargain and sale, and the release as such ; and the enrolment will not of itself alter the operation of either of the instruments, and conse- quently, by such a conveyance an estate tail and remainders may be barred, and the fee limited to any uses and with any powers authorised by law (II). No other alteration ought to be made in a lease and release, as a disposition under the statute, than a recital or declaration in the release of the intention to bar the estate tail and remainders over, although the disposition will have that operation without any such recital. If the tenant in tail convey by a bargain and sale, it must still be an indenture (y), as required by the statute, 27 H. 8, but it will be valid if enrolled within the six calendar months allowed by this act, and it need not be previously acknowledged, C. And in regard to both dispositions and consents, the jurisdiction of equity is altogether excluded. It is (/) See below, n. (I). (I) Now a deed executed after the 1st of October WAo, purporting to be an indenture, will Lave the effect of an indenture, although not in- dented : 8 & 9 Vict. c. 106, s. 5 ; see 7 & 8 Vict. c. 7G, s. 11. (II) A lease for a year is now unnecessary : 8 & 9 Vict. c. lOG, s. 2 ; see 7 & 8 Vict. c. 76, s. 2. POWER OF TENANT IN TAIL. 215 immaterial whether the party is a purchaser for a valu- able consideration or not ; the jurisdiction is excluded in regard to the specific performance of contracts, and the supplying of defects in the execution either of the powers of disposition in tenants in tail or of the powers of consent in protectors ; nor under any circumstances can the want of execution of such powers of disposition and consent be sujiplied, and so in regard to giving effect in any other manner to any act or deed by a tenant in tail or protector of a settlement, which in a court of law would not be an effectual disposition or consent under the act : the deed and consent, therefore, must be effectual in law in order to operate. And equitable entails are placed upon the same footing with legal ones in regard both to dispositions and consents {g). 7. Here we may pause to take a cursory view of the preceding enactments, which, it will be observed, do not disturb the law as to quasi entails in estates ^mr autre vie, or in mere chattels, which law therefore remains wholly unchanged ; for of course the provisions of this act cannot in regard to estates pur autre vie be adopted by analogy, as the whole frame and spirit of the act excludes them, and forbids an application of its enactments to them : the law regarding such interests is left as it was, and so it must remain unless it be changed by the legislature (/f). 8. No power which a tenant in tail had to convey without the aid of a fine or recovery is taken away, and therefore his conveyance without a compliance with the formalities of this act, will still pass a base fee avoidable by the issue in tail (/), and this act makes (fj) Sec. 47. (0 iNlachell r. Clarice, 2 Lortl (//) See 1 Hayes' Com. 198, and lluym. 778 ; SugJ. Gilb. Uses, 83, Ji. n. o4 21G POWER OF TENANT IN TAIL. any subsequent disposition ^vithin the act by the tenant in tail a confirmation of the previous voidable estate, unless as against a purchaser without express notice. 9, Whatever a tenant in tail could have conveyed by a fine or common recovery, he may now convey by a deed enrolled under the statute, so that his jtower of alienation is not curtailed ; it is enlarg-ed, as we have seen, where the estate tail has been divested or is in contingency. If he is tenant in tail in possession, or in remainder, and has the first estate of freehold, or for a term of years determinable for life, ho can acquire the fee, subject to any intervening estates between his particular estate and his remainder in tail ; and if he is merely tenant in tail in remainder, he may alone, by a statute deed, acquire a base fee, which he may afterwards by another like deed enlarge into a fee- simple, either Avith or without the consent of the protector, as the case may be. And if he do no act after acquiring the base fee, but the immediate re- mainder or reversion in fee become vested in him, the latter is ipfio facto barred, and the base fee enlarged into a fee-simple, and is thus held discharged of all incumbrances which affected the reversion only; whereas formerly ])y a fuie by a tenant in tail with the immediate remainder or reversion in fee, the remainder or reversion AAould have l)eeii let into possession, and the fee in possession would have been liable to all the incumbrances ui)on the reversion. Where the tenancy in tail, although in remainder, is created by a separate instrument from the estate which would constitute a protector, the tenant in tail, by himself, may bar the entail and remainders over by a statute deed, for the 15th section gives liini that power, and the subsequent OF A PROTECTOR BY ESTATE. 217 sections do not place a i^rotector over him, and this is a greater power than he before enjoyed. And even if in a settlement before the passing of the act a bare trustee had the first estate of freehold (whose right is saved), his consent as protector will not, it seems, in this case be necessary, for the wording of the sec- tion (k), whether intentionally or not, confines the savino' to the case where nnder a settlement before the passing of the act, the person who would have been the proper person to make the tenant to the precipe for suffering a recovery for the purpose of barring any estate tail, or other estate wider such settlement, shall be a bare trustee, and declares that such trustee shall be the protector of sucli settlement, which seems to confine the right to the same settlement. 10. If, however, the estate tail be created by virtue of a ])ower in the settlement, then the appointment would be considered as part of such settlement, and the estate created by such ap])ointment would be con- sidered as having been created by such settlement (/). 1 1. The issue in tail living tiie ancestor is, we have seen, restrained from affecting the entail to which he may succeed. 12. Protectors are either in respect of estate or of nomination to the office. The former must have, or have had — for if once a protector by estate, the mere alienation of it docs not divest the party of the office, which endures as long as the estate lasts — an estate for a term of years determinable on a life, or some greater estate ; a term of years, however long, not determinable upon life, will not be sufficient. This is a restraint upon a tenant in tail whicli did not before (/.) Sec. 01. (/) Sec. 1. 218 OF A PROTECTOR BY ESTATE. exist; for a termor could not make a tenant to the pra'cijje, and his concurrence, therefore, was not neces- sary in a recovery ; but there was seldom such a prior estate where there was not necessarily also a prior estate of freehold to the estate tail, so that the new provision will rarely abridge the old power. A tenant by the curtesy, in respect of the estate tail, or of any prior estate in the same settlement, will be the pro- tector; and therefore, if a woman tenant in tail die, and her husband is tenant by the curtesy, he will be the protector, and if she left no issue, and there was a remainder in tail in the settlement, he would still be protector. If a married woman have a prior estate, which would create a protector, she alone will be the protector if the estate is settled or agreed to be settled by the settlement creating the estate tail, to her se- parate use, otherwise she and her husband will together be the protector ; a subsequent conveyance or agree- ment to settle her estate to her separate use will not make her alone the protector. 13. The estate which confers upon its owner the office of a protector under the act, may be indifferently either legal or equitable, provided it be vested in the party as owner. For the word estate is declared to mean an estate in equity as well as at law ; and as, with reference to future settlements, the act deprives a bare trustee of the right to the office, only the owner, whether of the legal or equitable estate, can be a jiro- tector in right of his estate. 14. This happily abolishes all the refined distinctions between legal and equitable tenants to the prcBcipe, and provided a person be protector and consent, the bar under the act will be oft'ectual \\'lietlior the ]>ro- OF A PROTECTOR BY EQUITABLE ESTATE. 219 tector was seised of the legal or only of the equitable estate, and it is immaterial whether the estate tail be a legal or an equitable one. 15. But there is a provision in the act on this head which is not free from difficulty. After the exclusion of bare trustees and heirs and others in s. 26 and 27, it is enacted by s. 28, that where under any settlement there shall be more than one estate prior to an estate tail, and the person who shall be the owner within the meaning of the act of any such prior estate in respect of which but for the two last preceding sections, or either of them, he would have been the protector of the settlement, shall, by virtue of such clauses, or either of them, be excluded from being the protector, then the person, if any, who, if such estate did not exist, would be the protector of the settlement, shall be such protector. Now does this provision substitute an equitable owner as the protector in the place of a bare trustee ? The act does not say that the owner of the next estate shall be the protector, but that must be its operation Avhere a prior estate devolves upon the heir, executor or administrator of the person who was entitled to it. Thus if an estate be limited beneficially to A and his heirs for the life of B, remainder to C in tail, and A die living B, A's heir will take the estate pwr autre vie, and C would no longer be fettered with a protector. In that case tiierefore the office passes over to the owner of the next prior estate or ceases. But suppose the legal estate to be limited to A and his heirs for the life of B in trust for B, remainder to C in tail, with remainder over, if tlie act is to operate in like manner — and it is undoubtedly difficult to give a different construction to the same words — as A cannot take the 220 OF THE EXCLUSION' OF ASSIGNS. office because he is a mere trustee, and to B it is not given, C would have no protector over him, although there was a subsisting prior beneficial ownership of the freehold. If B is to be the protector, the words of the act must not only receive two different constructions, but the equitable owner must be held to be described as a person who, if the excluded estate did not exist, would be the protector of the settlement. Now that accu- rately describes the owner of the next estate, but it does not so describe an equitable owaier, for it by no means follows that if the legal estate did not exist the equitable estate ever would have existed. And it may be urged that the words in the beginning of s. 28, " where under any settlement there shall be more than one estate prior to an estate tail," can only be held to describe one estate, viz. a legal estate in A in trust for B. In favour, however, of the manifest intention of the act, it would no doubt be held that the equitable owner takes the office in substitution of the leoal tenant. P'or the act previously (by s. 22) vests, as it seems, the office in the beneficial owner, and a bare trustee is afterwards expressl}'' excluded, which will eff*ect the real intention of the act, and s. 28 may be held not to oi)erate upon this particular case. IG. Some embarrassment is occasioned by the intro- duction of the word assign in the 27th section amono-st the persons who are excluded from the office of pro- tector, because an assign is in effect excluded by the 22d section, wdiicli continues the owner of the prior estate as protector, although he has conveyed away his estate, and the substitution clause (s. 28) introduces a question whether where an assign is excluded the office is not to pnss o\'er to the owner of the next estate. WHO ARE NOT PROTECTORS BY ESTATE, 221 But the express enactment in s. 22 will doubtless be held to explain the provision in s. 27, so as to exclude the assign without divesting' the original owner of his office under s. 22 by force of the enactment in s. 28. 17. The above provisions very much enlarge the power of a tenant in tail, for no lessee at a rent, dowress, heir, executor or administrator can in respect of an estate be a protector. If there be a settlement on A and his heirs, or on A and his executors and adminis- trators, beneficially for the life of B, remainder over in tail, and A die, although his heir, or his executor, or administrator will take the estate beneficially, yet he will not be the protector ; but notwithstanding that the prior estate remain in existence, the tenant in tail in remainder will be able to acquire the fee without the concurrence of any other person. 18. The act constitutes the Lord Chancellor the protector in certain cases, and then adds, that if in any other case where there shall be subsisting under a settlement an estate prior to an estate tail under the same settlement, and such prior estate shall be sufficient to qualify the owner thereof to be the protector of the settlement, there shall happen at any time to be no protector of the settlement as to the lands in which the prior estate shall be subsisting, the Court of Chancery shall, Avhile there shall be no such protector, and the prior estate shall be subsisting, be the protector of the settlement as to such lands (m). It may perhaps be contended that this clause substitutes the Court of Chancery for the bare trustee, &c. whilst the estate continues, but that construction seems to be excluded by the frame of the act, and by the 28th section, which (/«) Sec. 33. 222 POWER OF COURT OF CHANCERY: OF ALIENEE. substitutes the owner of the next estate without any reference to the Court of Chancery. And the case intended to ho provided for by this part of the 33d section of a sufficient prior estate, and no protector, is perhaps where the protector by estate is excluded, and there is for the time no other protector, although one was appointed. 19. In regard to rights existing on or before the 31st of December 1833, wdiere the estate has been aliened before that day, the alienee will be the pro- tector, just as, if the act had not passed, he would have been the person to make the tenant to the pj^cecipe. And as the clause (s. 29) speaks of "an estate under a settlement," which would include not only a prior estate but the estate tail itself, the alienee of the tenant in tail is the protector under the act, so that his concurrence would be necessary to enable the tenant in tail to bar the remainders over where any remained unbarred. But by the wording of the section, this case of a disj)osition on or before 31 December 1833, seems to be confined to cases where the prior estate, if any, and the estate tail, were created by the same settle- ment. 20. Under this saving a person who has departed ■with an interest in a remainder or reversion in fee, is not allowed to be the protector, so as to enable him to destroy the very estate he had created or transferred ; but the proper person to have made a tenant to the prcEcipe, if the act had not passed, is to be the pro- tector. This, however, may still prove to be the per- son who sold or charged the remainder : e. g. where an estate is settled on A for life, remainder to B in tail, remainder to A in fee, and A^ within the time limited. RIGHT OF BARE TRUSTEE SAVED. 223 charged his remainder witli an incumbrance, he wouhl still be the person to make the tenant to the prcccipe, and therefore wonkl still have it in his power to concur in an act which would destroy his charge ; but as he would equally have had this power if the act had not passed, it was not the intention to relieve the party from this power over him. 21. And, as we have seen, the right even of a bare trustee is saved under a settlement made on or before the 31st December 1833, only that in form he is made the protector instead of being left with the power to make a tenant to the prcecipe, and he will remain pro- tector during the continuance of the estate conferring on him the right to make the tenant to the prcBcipe. This is important. If an estate were before the day named vested legally in A for the life of B, in trust for B, remainder to C in tail, with remainders over, although A were now to convey his legal estate to B or to C, yet the estate tail and remainders could not be barred without the concurrence of A as pro- tector. It should besides be borne in mind, that although a man remains the protector after he has conveyed away the estate, yet the statute itself does not divest or transfer the particular estate from the protector. 22. A shght difficulty has been occasioned by the 27th section, which prevents bare trustees from being jH-otectors, having a saving in these words, *' except in the case hereinafter provided for, of a bare trustee under a settlement made on or before the 31st day of December 1833," whilst the section (31) by which effect was intended to be given to that exception, speaks only of " any settlement made before the 224 OF A PROTECTOR BY APPOINTMENT. passing" of this Act;" and tlio act passed on the 28th August 1833. Now one tiling is quite clear, that the mistaken reference (whicli will readily be accounted for by the experienced draftsman, when he casts his eye over tlie act) in the 27tli section to the 31st, does not affect in any manner the operation of the 31st section, which therefore clearly extends to settlements made before the 28th August 1833. And taken in connexion with the 27th section, that time, it is appre- hended, would be enlarged to the 31st December 1833. Tliis would effectuate the intention and do no violence to the words of the statute. 23. We have already observed, that this clause appears to be confined to the case of a bare trustee under the same settlement which created the estate tail. It is rather to be regretted that the language of the statute in this respect is not uniform. 24. Thus far the analogy has been preserved between the old and the new law : the prior estate, although the nature of it has been changed, is the foundation of the right of a protector, but he will retain the office, although he has departed with the estate whilst the estate continues ; and if he is still owner of the estate, yet he need not, as formerly, convey it, but in either case his consent is sufficient. But the settlor may altogether defeat this right : he may by the settlement appoint any persons of age, not being aliens, to fill the office, without reference to estate, and he may include, if he please, the person who would have been pro- tector by force of estate ; and he may reserve a power* to himself or give it to any other person to fill up POWERS OF PllOTECTOR. 225 vacancies in the oflice. If he taTrovisions. 1. The former acts are repealed as to estates tail, but not as to any bankrupt under any commission or fiat on or before 31 December 1833 (a). 2. The commissioner under any fiat issued after that day against any bankrupt who at the time of issuing the fiat^ or at any time afterwards before he has obtained his certificate, shall be an actual tenant in tail of lands of any tenure (b), is enabled by deed to dispose of the estate to a purchaser for valuable consideration, just as the bankrupt could have done, according as the pro- tector, if there be one, consents or not(6'). And a like power is given to the commissioner over a base fee {d). (a) Sec. 55. (c) Sec. 5G. (b) Whicli oF course inchules (c/) Sec. 57. customary f reel i < > I < 1 s . p4 232 OF ESTATES TAIL IN BANKRUPTS. 3. And as regards the operation of a consent by the protector upon a disposition by the commissioner, he, the connnissioner, — whether he shall have made a prior disposition without the consent of such protector or not, or whether a prior sale or conveyance shall have been made or not under the two former statutes relating to bankruptcy, or any future statute, — is placed in tlie same situation as the bankrupt himself would have occupied, and the previous directions in regard to the consent of the protector to the disposi- tion of a tenant in tail of lands not held by copy of court roll, and in regard to the time and manner of giving such consent, and in regard to the enrolment of the deed of consent, where such deed is distinct from the assurance of the commissioner, is (except as far as it is varied by the next clause) to apply to every con- sent that may be given by virtue of the present clause (e). 4. It is then provided that the deed, if not relating to copyholds, sliall be void if not enrolled in the Court of Chancery ^\ithin six calendar months after its exe- cution, and deeds of disposition and consent as to copyholds arc to be entered on the court rolls, and to be endorsed and the entry testified as before di- rected (/). 5. There is an important provision relating to a purchaser of lands of any tenure of which the bank- rupt shall be actual tenant in tail obtaining by a dis- position from the comnussioner under this act a base fee only, for want of a consent by the protector, in whicli case, if at any time afterwards, during the con- ihiuance of the base fee, there shall cease to be a pro- (e) 8ec. 68, (/) Sen, 69. OF ESTATES TAIL IN BANKRUPTS. 233 tector, then the base fee will, without any further act, become enlarged in the hands of the purchaser into the same estate into which the same could have been enlarged under the act if there had been no protector when the disposition was made(<7). And a like provision when a tenant in tail entitled to a base fee in lands of any tenure shall be adjudged a bank- rupt at the time \^-hen there shall be a protector of the settlement by which the estate tail converted into a base fee was created, and the lands are sold under the old or any future bankrupt acts ; in which case, if at any time afterwards, during the continuance of the base fee, there shall cease to be a protector, then the base fee will immediately be enlarged into the same estate into which it could have been enlarged under this act if at the time of the adjudication there had been no such protector, and the commissioner had disposed of the land under the act (Ji). The latter of these provisions requires some explanation ; the former speaks for itself. Under the old bankrupt acts, the commissioners could not, even with the concur- rence of the freeholder, acquire more than a base fee in an estate of which the bankrupt was tenant in tail in remainder, and even a joint commission against the tenant for life and the remainder-man in tail did not bar the remainders over (i) ; so that the commissioners had not as large a power over the estate as the bank- rupt had. This power, as we have seen, is now con- ferred on the commissioner. And the object of the 61st section is — where a bankrupt is already entitled to a base fee, and would have been actual tenant in tail if the base fee had not been created, and there sliall at the time be a protector of the settlement by {g) Sec. 60. (i) Jervis v, Tayleur, 5 Barn. & [h) Sec, 61. Aid. 657. 234 OF ESTATES TAIL IN BANKRUPTS. which t)ie estate tail converted into the base fee was created, and the lands are sold or conveyed under the existing or any future bankrupt acts — to enlarge the base fee if there should cease to be a protector during its continuance. This clause therefore provides for a case of an existing base fee in the bankrupt at the time of the bankruptcy, which is simply transferred, but not enlarged, under the bankrupt acts (k). The then existing act (G Geo. 4, c. 16) was not repealed as to commissions or fiats before the 31st December 1833, and under that law the remainders could not have been barred, as we have seen, although the freeholder had concurred. 6. And where an actual tenant in tail of lands of any tenure, or a tenant in tail entitled to a base fee in lands of any tenure has created, or shall create, a voidable estate in favour of a purchaser for valuable considera- tion, any disposition under the act by the commissioner (whether he has made under the act a previous dispo- sition or not, or whether a prior sale or conveyance shall have been made or not under the bankrupt acts,) according as the protector consents or not, is to have the effect of confirming such voidable estate to its fullest extent (except those rights wliich are saved by the act), or as far as it could have been confirmed with- out the protector's consent (as the case may be). And a subsequent failure of a protector during the con- tinuance of the base fee, where that only passes, Avill enlarge it. 7. But this last provision is clogged with the proviso, that if the disposition by the commissioner shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, {k) See sec. 55 ; sec. 61 appears to be prospective only. OF ESTATES TAIL IN BANKRUPTS. 235 then the voidable estate shall not be confirmed against such purchaser (/). 8. The acts of the bankrupt tenant in tail are avoided against any disposition under the act to the same ex- tent as if he were tenant in fee (m) ; but, subject to all the powers and the estate of the assignees, the bankrupt's own power of disposition under the act is to remain (n), 9. The disposition by the commmissioner of lands of any tenure under a fiat where the bankrupt was, or before obtaining his certificate becomes an actual tenant in tail of such lands, or a tenant in tail entitled to a base fee in such lands, is made valid, although the bankrupt be dead at the time of the disposition, in the following cases ; viz. I. In case at the death there shall be no protector : II. Or in case the bankrupt had been an actual tenant in tail, and there shall at the time of such dis- position be issue inheritable to the estate tail, and either no protector, or a protector who shall consent to the disposition, or a protector who shall not consent : III. Or in case the bankrupt had been a tenant in tail entitled to a base fee, and there shall at the time of the disposition be any issue, who, if the base fee had not been created, would have been actual tenant in tail, and either no protector, or a protector who shall consent to the disposition (o). 10. Every disposition by a commissioner of copy- holds in which the estate of the bankrupt in the lands is not merely an estate in equity (I), is to operate as (/) Sec. 62 ; vide supra, p. 232. (m) Sec. 63. («) Sec. 64. (o) Sec. 65. (I) A mere equity in copyholds (not being an estate tail) may be dis- posed of by the assignees without having vocoursp to tlie jiowers of this act. 236 OF ESTATES TAIL IN BANKRUPTS. if such lands bad been actually surrendered and the person to whom tbey may have been disposed of may claim to be admitted tenant thereto, and upon admittance is to pay the fines, fees, and other dues, as if the lands had passed by surrender (p). 11. Until a disposition by a commissioner under the act, the assignees arc to receive the rents and to en- force the covenants (for which purposes full powers are given to them), as regards all copyhold lands, and also those lands of any other tenure which any commis- sioner has power to dispose of under the act after the bankrupt's death (g). 12. With the exception of section 55 of the act, repealing pi'o tanto the old bankrupt acts, all the sec- tions considered under this head, — section 56 to sec- tion 69, both inclusive, — are engrafted into the new bankruptcy act (r) by w'ay of reference, and rendered as operative as if they were re-enacted and extended to the proceedings under the new act. The provi- sions of the act in favour of creditors of bankrupts after the 31st of December 1833, and for the confirma- tion, in consequence of bankruptcy, of voidable estates created by them, extend to lands of any tenure in Ireland, saving the rights of the Crown to any reversion or remainder in the Crown in lands in Ireland ; but deeds of disposition and consent are to be enrolled in the Court of Chancery in Ireland {s). (j)) Sec. GO. (q) Sec. G7. (r) 12 & 13 Vict. c. 106,8.208; (*) Sections 08, 09 of 3 & 4 for furtlier i)vovision3 as to bank- Will. 4, c. 74 ; for fees of office, rupts, see s. 7, 2)0St ; Sugd. Couc. see ss, 75, 70, and n. to pi. 5, View, 675. sec. 6, supra. OF TENANT IN TAIJL, OF MONEY. 237 SECTION VII. OF BIONEY entailed: AND OF DISPOSITIONS BY MARRIED WOMEN. 1. Lands to be sold or the monet/ considered as landpurchased, 2. Extended to lands in Ireland, 3. Acknowledgment uimeccssary of deeds to be enrolled. ■i. New bankrupt act. 5. Power of married woman, not being tenant in tail, to dispose by deed. 6. Poicer of married woman to dis- pose of reversionary interest in money charged on land or land-money: Hobby v, Allen. 7. May release right of dower. 8. Powers in feme covert not inter- feral with : how her deeds are to be executed, S^c. 9. Stirrender of copyholds by hus- band and icifc of equitable estate valid. 10. Potoer to dispcnsewith husband's concurrence. 1 1 . Wife authorised to convey copy- holds given to her separate use where hxisband living abroad with another woman. 12. Married woma^i camiot be coni' 2)elled to convey under decree for sale. 13. Enrolment of deeds executed ly her as tenant in tail, pro- tector, or oicner : separate examination. 14. She may disclaim by deed. ] . Where a man would be tenant in tail of lands directed to be purchased, if the money is to be pro- duced by the sale of other lands, freehold or leasehold, or of any other tenure, those lands, and, if not, the money, are to be treated as the lands to be purchased ; and if the lands directed to be sold are not copyhold, the previous clauses in the act, so far as circumstances will admit, are to ap])ly as if the lands directed to be purchased were to be freehold, and were actually pur- chased and settled ; and where the lands directed to be 238 OP TENANT IN TAIL OF MONEY. sold are coi>yliold, the provisions are to ajiply as if the lands to be purcliased wore to be copyhold, and were actually purchased and settled ; and in the case of money, as if the same were to be laid out in the pur- chase of freehold, and they were actually purchased and settled : but leaseholds for years and money are to be treated as personal estate as to the person in wliose favour the disposition is made (a). And except in case of bankruptcy, the assurance by which the disposition of such leasehold lands or money shall be affected is to be an assignment by deed, which will have no operation unless enrolled in the Court of Chancerj'^ within six calendar months after the execution thereof; and in every case of bankruptcy the disposition of such lease- hold lands or money is to be made by the commissioner, and completed by enrolment, in the same manner as before required in regard to lands not held by copy of court roll {b). 2. The above provision is extended to lands in Ire- land to be sold, where the money arising from the sale is subject to be invested in the purchase of lands to be settled, so that the bankrupt, if the lands were pur- chased, would have an estate tail therein, and also to money under the control of equity in Ireland, or vested in trustees in Ireland, to be laid out in like manner. Deeds relating to lands in Ireland are to be enrolled in the Court of Chancery there ; but deeds in regard to money are to be enrolled in the Court of Chancery in England, in both cases within six months after their execution. The rights of the Crown are saved to any reversion or remainder in lands in Ireland to be sold (c). (c) Sec. 71 ; in the matter of (h) Sec. 71. Smythe, 8 Myl. & Kee. 249, (c) Sec. 72. OF DISPOSITIONS BY MARRIED WOMEN. 239 The act does not extend to Ireland except where the same is expressly mentioned {d), 3. Acknowledgment of deeds before enrolment is not necessary as to deeds required to be enrolled in the (yonrt of Chancery of England or Ireland (e). 4, The provisions which we have just stated in sec- tions 71, 72 and 73 of the act are by the late bank- rupt act, in addition to those before pointed out ( /) engrafted into the new bankrujitcy act (g) by way of reference, and rendered as operative as if they were re-enacted and extended to the proceedings under the new act. 5. The act then (h) contains a provision of great importance. Every married woman not being tenant in tail, is enabled by deed to dispose of lands of any tenure, and money subject to be invested in lands, and also to dispose of, release, surrender or extinguish any estate which she alone, or she and her husband in her right, may have in lands of any tenure, or in any such money ; and also to release or extinguish any power which may be vested in or limited or reserved to her in regard to any lands of any tenure, or in any such money, as effectually as if she were a feme sole ; but her husband must concur in the deed, and the deed must be acknowledged in the manner required by the act, and the provision is not to extend to copyholds in cases where the power is not required. (d) Sec. 92. The 7 Geo. 4, c. 4-5, and see 12 & 1,3 Vict. c. 109, ss. 17, is repealed, except as to proceedings 18. commenced before 1st January (/) Sec. G, pi. 12, supra. 1834 ; s. 70. (g) 12 & 13 Vict. c. lOG, s. 208. (e) Sec. 73 ; see 4 & 5 Will. 4, (h) Sec. 77 ; see 6 Bing. N. C, c. 92, Ir., s. 73 ; post, s. 8, pi. 2 ; 22G. 240 OF DISPOSITIONS. (). Ill tlic late case of Hobby v. Allen (I) estates were settled in trustees in fee, in trust for A. for life, and after her decease to raise a sura of money and pay it to B., on her attaining twenty-one, and with trusts for other jiersons. The settlement contained a power of sale, with the consent of the tenant for life ; and the trustees were to invest the purchase monies in the purchase of other estates, to be settled in like manner. Tiie estates were sold under the power for 1,250/. B., the legatee, attained twenty-one in 1843, and in 1845 married, and by an order in the cause (I) 500/., part of the purchase money, was paid into Court and invested in consols. By a deed in 1851, ^., the tenant for life, and B., the legatee, and her husband, and the other parties interested, assigned the stock to trustees freed from the direction to lay it out in land upon certain trusts, and B. and her husband executed and acknowledged the deed according to the act. Vice-Chancellor Knight Bruce, upon an application by all parties to have the money paid out of court, observed that the object of the petition was the re- versionary interest of a married woman in a sum of money charged on land. He thought that the married woman could do no act to affect such an interest during the life of the tenant for life. This did not come new upon him : it was a point ui)oii which his mind had long been made up. This construction of the act seems open to much doubt. As the legacy was not raisable as against the other persons interested in the estate until the death (i) 20 Law J,, 199. (I) The dates of the sale and of the order are not stated, nor are the terms of the order stated. BY MARRIED WOMEN. 241 of the tenant for life, the 500/. still remained part of the trust fund liable under the trusts of the settlement to be invested in lands ; and in that view, B. and her husband had, it should seem, full jDower under the acts {j) to dispose of her reversionary interest in the legacy payable out of the real estate. For the 1 st sec- tion of the act, which we are considering, gives to the word lands a general meaning, and to the word estate a meaning which extends to an estate in equity as well as at law, and also to any interest, charge, lien, or in- cumbrance in, upon, or affecting lands, either at law or in equity, and also extends to any interest, charge, lien, or incumbrance in, upon, or affecting money sub- ject to be invested in the purchase of lands. And, as we have seen, the 77th section enables a married wo- man by deed to dispose of, release, surrender, or extin- guish any estate which she and her husband in her right have in lands of any tenure, or in any money sub- ject to be invested in lands. These provisions, with- out calling in aid the later act, seem clearly to enable a married woman and her husband to dispose of her reversionary interest in money, subject, like that in Hobby V. Allen, to be invested in land. And even if the estate had remained unsold, it would seem that the act would have enabled the legatee and her husband during the life of the tenant for life, to dispose of, re- lease, or extinguish her reversionary interest in the legacy charged on the land. It would be a different question, where the legacy having been raised, has be- come property severed from the general trust fund, and forms a separate personal fund altogether discharged from its character as a charge upon real estate. ( j) 3 & 4 Will. 4, c. 74, ss. 1, 77 ; 8 & 9 Vict. c. IOC, s. ; supra, s. 7, pi. 13. Q 242 OF DISPOSITIONS BY MARRIED WOMEN. 7. Tlie (lower act {i) does not prevent a married woman, with the concurrence of her husband, from barring her dower ; but this statute has abolished the only modes by which that could have been accom- plished. In framing the present section, the right of dower is not scientifically provided for, but the inten- tion is obvious, and the married woman is empowered to extinguish any estate which she ha^ in lands ; and the word estate is, by the first section, extended to any interest in lands, and a power therefore does appear to be given to married women and their Imsbands to bar dower. Tliis question, of course, could only arise in regard to women married before the 1st of January 1834, and whose rights to dower are saved by the dower act. 8. The act does not interfere with any power in a married woman, unless she suspends or extinguishes it by a disposition under the act(/<). But every deed executed by her, except in the mere character of a protector, for the sole purpose of giving her consent to the disposition by a tenant in tail, is to be acknow- ledged by her (/), and she is to be separately examined as to her consent, and as to her being of age and of competent understanding (m), for wliich purpose neces- sary machinery is provided by the acts (n) (I). When (i) See infra, ch. 3. In re Harper, 6 Mann. & Gran. (k) Sec. 78. 732. (I) Sec. 79 ; see anacknowledg- (m) Sections 80, 84. ment by a deaf and dumb woman ; (n) Sections 81 — 89. (I) Sec. 89 enables the Court of Common Pleas to make orders touching the examination and other matters, and this power has been extensively exercised: the rules are inserted in 10 Bing. 458; 1 Bing. N. C. 242. The cases and practice on acknowledgments I)y married women are collected in Shelford on Statutes, 376, n. ; and see 2 Hayes' Com. 237. OF DISPOSITIONS BY MARRIED WOMEN. 243 the certificate of tlie ackiiOAvledgnient of a deed l.>y a married woman is filed as directed by the act, the deed so acknowledged, so far as regards the disposition, re- lease, surrender, or extinguishment thereby made by her, is to take eifect from the time of its being acknow- ledged ; and the subsequent filing of such certificate is to have relation to such acknowledgment (o). 9. Surrenders by husband and wife, upon which she is separately examined, of equitable estates in copyholds, are made as binding upon the woman as surrenders of legal estates, and all former surrenders of the like kind are thereby rendered valid (jt?). 10. And the Court of Common Pleas is authorised to dispense with the husband's concurrrence, where, in consequence of his being a lunatic, idiot, or of unsound mind, and whether found such by inquisition or not, or from any other cause, he shall be incapable of executing a deed, or of making a surrender of copy- hold lands; or where his residence is not known, or ho shall be in prison, or live apart from his wife, either by mutual consent or by sentence of divorce, or in con- sequence of his being transported, or from any other cause whatever; but this is to be without prejudice to his rights as then existing, independently of the act {q). But this clause is not to apply to the case of a married woman where, under the act, the Chancellor or the Court of Chancery shall be the protector of the set- tlement in lieu of her husband (?•). 11. Where a married woman was devisee of copy- holds for her separate use, and her husband hud been living abroad for many years with another woman, the (o) Sec. 80. {p) Sec. 90. {q) Sec. 91. (>•) See 1 Phill. 200. R 244 OF DISPOSITIONS BY MARRIED WOMEN. Court iiiatle an order sanctioning licr conveyance withont the concurrence of her husband (s). 12. But it has been decided that the powers con- ferred on a married M'oman are only enabling ones, and do not authorise the Court of Chancery to compel her to join in a conveyance to give effect to a sale under a decree, although it was at the suit of an equitable mortgagee, by deposit of deeds by herself when sole, she being at the time mortgagee in fee of the estate (t). 13. It should be kept in view, that a statute deed by a married woman, as tenant in tail or protector of a settlement, must be enrolled according to the direc- tions of tlie act ; and where it operates as a conA'ey- ance of her interests, it must be acknowledged by her, and she must be separately examined whether she is tenant in tail or not. 14. A later act (?(?), which enables the disposition by deed of contingent interests, possibilities coupled with an interest, and rights of entry, provides that no such disposition shall, by force only of that act, defeat or enlarge an estate tail, and that every such disposi- tion by a married woman shall be made conformably to the provisions just referred to in the principal statute; and it is provided (x) that after the 1st Octo- ber 1845, an estate or interest in hereditaments of any (s) Ex parte Ann Shirley, 5 Foxon,183G ; see now and consider Bing. N. C. 226 ; and see the cases 13 & 1-1 Vict. c. GO, ss. 1, ^Q;post^ collected in Shelford on Statutes, ch. 8. 384, n. («) 8 & 9 Vict. c. 106, s. 6 ; see (0 .Jordan v. Jones, 2 Pliill.lTO, 7 & B Vict. c. 76, s. 5. reversing the order of Wigram, {x) Sec. 7 of 8 & 9 Vict. V. C. on the authority of Foxon r. ACKNOWLEDGMENT OF DEEDS UNNECESSARY. 245 tenure in England may be disclaimed by a married woman by deed, such disclaimer to be made con- formably to the above-mentioned provisions. SECTION VIII. OF ENROLMENT AND ACKNOAVLEDGMENT OF DEEDS, AND OF CONFIRMING A PURCHASER'S VOIDABLE ESTATE. 1. Acknowledgment unncccssarii. 2. Operation of enrolment. 3. Conflicting rights of purchasers . operation of express notice. 4. Policy and frame of the act. 1. Although deeds are required to be enrolled in the Court of Chancery, yet previous acknowledgment, as we have seen, is rendered unnecessary {a). 2. Every deed required to be enrolled in either of the Courts of Chancery, by which lands or money are to be disposed of under the act, is, when enrolled, to operate as if enrolment had not been required, with this important exception, that every such deed will be void against any person claiming the lands or money, or any part thereof, under any subsequent deed duly enrolled under the act, if such subsequent deed shall be first enrolled (/>). And here again the act is silent as to notice, and this appears to be a general provision, (a) Sec. 73 ; see 4 & 5 Will. 4, c. 92, s. 65 (the Irish act), Avhicli confines that exemption to Ireland : and see s. 6f!, ih, (b) Sec. 74. R 2 246 OF PURCHASERS WITH OR WITHOUT NOTICE. iHitler wliicli, according to the terms of it, a man know- ing that the estate had been sohl or mortgaged, but that the deed was not enrolled, might with Impunity himself buy the estate, and l)y ])rocuring his deed to 1)0 first enrolled, defeat the bond Jidc prior purchaser. This is not like the case of the deed operating upon an e(piitable estate tail in a coi)yhokl, to which we have before adverted (h), because that deed wholly de- pends for its operation on the statute ; whereas in this case, the conveyance by the tenant in tail, by [lease and] release for example, although not enrolled, would not have been void before the statute against a sub- sequent purchaser, whether he bought with or without notice, and it could therefore hardly have been the in- tention of the legislature to avoid such a deed against a purchaser who bought with express notice of the prior deed, although he procured his deed to be first enrolled. 3. But the conflicting rights of purchasers in such a case seem to depend upon another provision (c), by Avhicli a voidable estate, whenever created by a tenant in (ail in favour of a purchaser for valuable considera- tion, will be confirmed by a subsequent valid disposition under the act, unless that disposition be in favour of a j)urchaser for valuable consideration, who bought without CcVpress notice of the voidable estate. Now Avhere there is a valid conveyance by a tenant in tail to a purchaser, although it may be ineffectual as a dis- position under the act, — because, for example, it was not enrolled in due time, — yet it would pass a base fee to the purchaser without the aid of the statute, although {b) Vide supra, p. 232, 235. (c) Sec. 38. OF PURCHASERS WITH OR WITHOUT NOTICE. 247 voicUable by the issue in tail. If, therefore, the tenant in tail in such a case were afterwards to make a valid disposition under the act, that M'ould operate as a confirmation of the previous voidable estate under section 38, unless the latter conveyance was in favour of a purchaser who bought without express notice of the former conveyance. This seems, therefore, to em- brace tlie very case provided for by section 74, for the estate is voidable for want of the deeds being enrolled ; and that voidable estate Avill be confirmed by the sub- sequent disposition, where, as we suppose, the last purchaser bought with express notice of the voidable estate. This construction does no violence to the words of the statute, but merely brings in aid the 38th section to the explanation of the 74tli. The result is, that where one purchaser claims under a prior, but, as far as the act is concerned, an ineffectual dis})osition, and another claims under a later but effectual disposi- tion under the act, the former will be preferred to the latter, if the latter bought with express notice of the other's right, unless the 74th section is not to be controlled or explained by the 38th ; and if not, then the particular case of want of enrolment does not fall within the 38th section, but is altogether dependent upon the 74th ; and the want of enrolment is fatal where there is a subsequent purchaser's deed first en- rolled, although he purchased with express notice ; but it should always be kept in view that section 74 is silent as to notice. 4. The sweeping away of fines and recoveries is a solid improvement in the law, and the act of parlia- ment is a masterly performance, and reflects great credit on the learned conveyancer by whom it was R 3 248 OBSERVATIONS ON THE ACT. framed (I). But the policy of the provisions in the act may be doubted. All men's titles must for many years depend upon the law of fines and recoveries, and few will be found in a short time competent to judge of their validity. The substitute for the old law is one of vast complication, introducing a protector in every settlement to check the alienation by tenant in tail in remainder. Whilst we brush away our old books, no one can doubt that the new system, from its com- plication, will lay the foundation for new ones, and that the construction of the act in every given case will not be settled but after a long run of litigation, although no doubt, at first, everything will proceed smoothly. The Author was one of those who thought that the law would have been more simple if it had merely abolished fines and recoveries, and made deeds to declare the use of fines, and to make tenants to the prcecipe in reco- veries effectual without actually levying a fine or suffering a recovery. (I) The writer cannot refrain from observing that his admiration of Mr. Brodie's performance has l)een increased by the attentive conside- ration which lie lias now been compelled to bestow upon it. OF THE ACT RELATING TO IRELAND. 249 SECTION IX. OF THE ACT RELATING TO IRELAND. 1 . Operates, from what period. 3. Extends to contingent interests. 4. Rights of Grown partialis/ saved in English act. B. To what extent saved in Irish act. (5, Tlie like in bankruptcy and money entailed. 8. Confirmation of voidable estate. 9. Married woman'' s power. 11. General power to convey contin' gent interests. 12. Confined to Ireland, semble. 1. The provisions already referred to were embodied in an act to operate in Ireland, which provisions, although not all accurately confined to Ireland, would, upon the context, it is apprehended, be so confined, unless where expressly extended to England (a). 2. The date of the 31st day of December 1833, in the English act, upon which so much depends, has, in the act for Ireland, the date of the 3ist day of October 1834 substituted for it. 3. The explanatory clause in the beginning of the act, in affixing a meaning to the word estate, says that it shall extend to an estate in equity as well as at law, and shall also extend to an interest, charge, right, title, lien or incumbrance, in, upon, to, or affecting lands, either at law or in equity, whether jjresent or vested, future or contingent. The words in italics are not in the English act, and appear to have been introduced into the Irish act without sufllicient consideration. (a) 4 & 5 Will, 4, c. 92 (15th August 183i) ; see5//^m,s, 7,pl,2. r4 250 OF THE ACT RELATING TO IRELAND. They may give rise to important questions upon the office of a protector by estate, and may operate con- trary to the general policy of the act : they, however, prevent any question as to a married woman's power, with her husband, to bar her dower. In section 20 of the English act, which declares that it does not enable issue in tail to dispose of his expectancies, the words are " expectant interest," whilst in the Irish act the words are " expectant interest or possibility" {b). 4. By the English act, a tenant in tail is enabled to bar the Crown ; but by s. 18 of that act it is provided that the power shall not extend to tenants of estates tail who by the 34 k 35 H. 8, c. 20, or by any other act, are restrained from barring their estates tail. 5. But by the Irish act, the power of every actual tenant in tail is to operate as against all persons whose estates are to take effect after the determination or in defeasance of such estate tail, including the King, his heirs and successors, as regards the title of his Majesty to any reversion or remainder created or reserved by any settlement or will, and which reversion or remain- der should have come, or should thereafter come to the Crown, in consequence of the attainder of any person to whom the forfeited reversion or remainder was pre- viously to such forfeiture limited by any settlement or will, but not in any other case, or where the title of the Crown should have accrued by any other means (c). And the power of every tenant in tail, where a base fee has been created, is made equally extensive (cZ) ; but it is provided that nothing in the act contained should (b) Sec. 17 ; see 7 & 8 Vict. (c) Sec. 12. c. 76, s. 5; 8 & 9 Vict. c. 100,* (d) Sec. 10. s. ; and sea s, 2. supra^ pi. 18, OF THE ACT RELATING TO IRELAND. 251 authorise any tenant in tail or otlier person to defeat or bar any estate or interest which might, at the time of passing the act, liave been granted to any person or persons by his Majesty or any of his jjredecessors in any reversion or remainder which might have come to the Crown by attainder or otherwise. 6. Tlie Enghsh act extends its provisions in regard to bankrupts — inchiding the confirmation of voidable estates — to lands in Ireland, but contains a general saving of the rights of the Crown to any reversion or remainder in the Crown in lands in Ireland (e). This is not consistent with the Irish act. The Irish act contains a similar provision, extending its powers as to bankrupts, including the confirmation of voidable es- tates, to lands in England, but without any saving of the rights of the Crown, which, however, is supplied by the body of the act, which, like the English act, gives to the commissioner the same power as tlie tenant in tail has {f). This does not seem to be consistent with the English act ; and the like observations apply to the reciprocal provisions in the several acts, in regard to entailed money {g). 7. Since the Irish act passed, an unsuccessful at- tempt has been made to induce the legislature to alter these provisions in favour of the subject. 8. The section in the Irish act (A), which makes a subsequent disposition by tenant in tail a confirmation of a previously avoidable estate, adds this proviso : that if such disposition shall be made to a purchaser for {e) Sec. 68, 3 & 4 Will. 4, enrolled in the Court of Chancery c. 74. in England, s, 61. (/) Sec. 60, 4 & 5 Will. 4, c. 02; {g) Sec, 72, 3 & 4 Will. 4, c. 74 ; but deeds of disposition and consent sec. 64, 4 & 5 Will. 4, c. 92. as to lands in England are to be {h) Sec. 36. 252 OF THE ACT RELATING TO IRELAND. valuable consideration^ who shall not have express no- tice of the voidable estate, cmd if tlie deed or instru- ment creating such voidable estate shall not have been registered iirevious to such disposition, then the void- able estate shall not be confirmed as against such pur- chaser, and the persons claiming under him. The words in italics are not in the English act. The clause has been altered in rather a singular manner, but the effect of it is to make registry equipollent to the ex- press notice required by the English act. and also by the act for Ireland. And the like addition is made to the section which makes a disposition by a commis- sioner under bankruptcy a confirmation of a previous voidable estate (i). 9. The clause giving a power of disposition to a mar- ried woman has the additional \A'ord disclaim introduced into it(/f) ; and the proviso, that the powers of dispo- sition given by the act shall not interfere with any other powers she may have, has these additional words annexed to it ; viz. but such powers of disposition shall not enable a married woman to dispose of lands or any estate therein, where the settlement or other instrument under which she may be entitled to the same, shall con- tain a valid restriction against the anticipation thereof, by such married woman. 10. The act for Ireland has, of course, many verbal alterations, and references to the Irish in lieu of the English statutes, to which we need not refer, and it properly omits all the clauses in the English act refer- ring to ancient demesne and copyholds. But it con- tains, in addition to the provisions of the English act, (i) Sec. W. {I) Sec. 68, 4&5 Will. 4, c. 92; c. 106, s. 7, Siqyra, s. 7, of tins gee now, as to England, 8 & 9 Vict. work, pi, 13. OF THE ACT RELATING TO IRELAND. 253 the following enactment (/), which has since been ex- tended, in different words, to England (ni). 1 1 . The clause to which I refer {/t) enacts, that after the 31st day of October 1834, it shall be lawful for any person, either before or after he shall become entitled in any manner, except as expectant heir of the body of a living person, to an estate in lands not being a vested estate, and whether he be or be not ascer- tained as the person or one of the persons in whom the same may become vested, to dispose of such lands for the whole or any part of such estate therein, by any assurance, whether deed, will, or any other instrument by which he could have made such disposition, if such estate were a vested estate in possession ; but it is pro- vided that no such disposition shall be valid or have any effect where the person making the same shall not at the time of the disposition have become entitled to such estate, unless the deed, will, or other instrument by virtue of which he may become entitled, be existing and in operation at the time of the disposition. 12. The English act properly contains an enactment that it shall not extend to Ireland except where the same is expressly mentioned (o). But a corresponding clause is not inserted, as it ought to have been, in the Irish act, and the enactment as to contingent interests just quoted, like many other of the provisions, is not in terms confined to Ireland ; but having regard to the context, this provision, like the rest, would no doubt be held not to extend to England. (Z) See Hayes' Convey. 195 ; in (n) Sec. 22, whicli work the new statutes are elaborately discussed. (o) Sec. 02 ; see in the matter of (wj) B & 9 Vict. c. 100, s.fi, su2»-o, Gravdou, 1 Mac. & Gor. 055. s. 7, pi. 13. Compare (lie provisions. [ 254 ] CHAPTER III. OF DOWER. 1. Dower barred hy legal term. 2. Dower of wife of trustee or mort- gagee. 3. Eviction of jointure, 4. Equitable jointure. 5. Bar of dower no bar of thirds. G. Infants. 7. Equitable jointure on infant. 10. Exceptions out of new dower act. 11. Upon purchases, dower of pur- chaser^s wife should not he barred without instructions. 12. Neio right of dower. 13. 15. 16. 17. 20. 21. 23, 24. Husband's power over dower bj/ disposition. By charge or contract. By declaration in the convey- ance, or by deed. By his will. Wife barred by devise to her of any doioable land. But not by personal estate, or of land not liable to doiver. Covenants not to bar dower bind- ing in equity. Purchaser's inquiry. Curtesy. I. Of Dower before the late Act. 1. It is clear that a woman is barred of her dower, both at law and in equity, by a legal term created pre- viously to her right of dower attaching on the estate, of which an assignment has been obtained by a pur- chaser to attend the inheritance (a). For although she can recover her dower at law, it will be with a cesset executio during the term, and equity will not remove the bar. But notwithstanding that a purchaser could o])tain an assignment of an outstanding term, which would bar the vendor's wife of her dower, a fine was (a) Vide infra, th. 1-5 ; see now 8 & 9 Vict, c 112, infra, ch. 5, EVICTION OF JOINTURE. 255 always required from the vendor and his wife at his expense. It was however decided that a court of equity would compel a purchaser to accept the title without a fine (b). This doctrine will not apply to cases within the late act, because the conveyance alone will bar the wife's right to dower. 2. The wife of a trustee in fee, or of a mortgagee in fee of a forfeited mortgage, is at law entitled to dower ; but a fine Mas on that account never required by a ])urchaser ; because, if the wife of a trustee or a mort- gagee were to be so ill advised as to prosecute her legal claim, equity M'ould, at this day, undoubtedly saddle her with all the costs (c). The new act does not alter the law in this respect. 3. But as far as depends upon the old law, whether the jointure be legal or equitable, if the jointress is evicted, she may, it seems, claim her dower out of any real estate of which she would otherwise have been dowable. For it is by the statute of uses (d), by which jointures are made bars of dower, declared, that if any Avoman be lawfully evicted from jointure or any part thereof, without any fraud or covin, then she shall be endowed of as much of the residue of her husband's tenements or hereditaments, whereof she was before dowable, as the same lands and tenements so evicted shall amount to ; and the point was expressly decided in Mansfield's case, Mdiich was adjudged in the 28th of Eliz. (e). There a jointure was conveyed to the (b) See 10 Ves. 261, 202 ; 1 Jac. Tope, 2 Freera. 43, 71 ; Lloyd v. & "Walk. 665 ; Jac. 490. Lloyd, 4 Dru. & War. 354. (c) See Noel v. Jevon, Bevant v. {d) 27 Hen. 8, c. 10, s. 7. (c) Harg. n. 8, Co, Litt. 33 a. 256 EVICTION OF JOINTURE. wife before tlie coverture, ami during the coYerture the husband jnu'chased other lands and aliened them again and died : the land which the wife had in jointure was evicted, and the wife had dower of the lauds which were purchased and aliened by the husband at the time when slie was barred of her action of dower. This decided tlie point at law, and of course equity must in this respect follow the law (/). The Autlior's impres- sion therefore was, that where an estate would have been subject to the dower of the vendor's wife, if she were not barred by a jointure, whether legal or equit- able, the vendor was bound either to procure his wife to levy a fine of the estate at his own expense, or to produce a satisfactory title to the jointure lands. And this was no more than was constantly required where an estate had been taken in exchange. The vendor was compelled to produce the title, not only to the estate sold, but also to the estate given by him in exchange. The same principle applied to the case under consideration. But this is now material with reference only to cases not within the late act, for this question will not arise under the new act as regards purchasers, because every conveyance will bar the wife's dower, so that although evicted of her jointure, she could not claim her dower against a purchaser of other lands. A fine, we must remember, cannot now be levied ; although a substitute for it is provided. 4. Equity appears to consider any provision, however inadequate or precarious it may be, which an adult previously to marriage accepts in lieu of dower, a good (/) Gervoyes's case. Mo. 717, pi. Havg. n. 81, Co. Litt. 33 a. ; Simp- 1002 ; and see 4 Co. 8 b. ; 4 Bro. son v. Gutteridge, 1 Madd. 609. C. C. 506, n. ; Mansfield's case. EQUITABLE BAR OF DOWER. 257 equitable jointure (^) ; and will iu some cases even imply an intention to bar the wife of her dower ; thus, where a provision was made for the livelihood and maintenance of the wife after her husband's death, although it was not expressed to be in bar of dower, yet it was holden to be a bar in equity, on the implied intention of the parties (Ji). This rule may still operate. 5. But in a case where a leasehold estate was settled before marriage upon the intended wife, " in recom- pense, and bar of dower, and for a provision for her," and the husband had no real estate, it was held that the wife's right to thirds was not barred (z). For, as the declared object was to bar her of dower, no implication could be admitted, that she Avas to be barred of thirds also ; the direction that the settlement was for a provision for her, only expressed the effect of the settlement, and could not be deemed evidence of an intention to bar her ctf a right which was not named. This of course is still law. 6. So, as infants are within the statute of Hen. 8 {k), and may be barred of dower at law, they may in like manner be barred by an equitable jointure ; and the (g) Jordan v. Savage, Bac. Ahr. Cox, 20 ; Tinny i\ Tinny, 3 Atk. Jointure, (B) 5 ; Charles v. An- 8; Coucli v. Stratton, 4Ves. 391 ; tlrews, 9 Mod. 152 ; Williams v. and Garthshore v. Chalie, 10 Ves. Chitty, 8 Ves. 645 ; 4 Bro. C. C. 20. See Sugd. n. (7) to Gilb. on 613. This was admitted by the Uses. p. 332. counsel for the appellants in Drury {i) Cresswell v. B^-ron, 3 Bro. V. Drury ; 5 Bro. P. C. 581 ; in re C. C. 3C2. See Pickering v. Lord Heron, 3 Ir. Eq. Rep. 589 ; 1 Fla. Stamford, 3 Ves. .?32. & Kel. 330. (/■) Drury v. Drury, or, Earl of (Ji) Vizard i>. Longdale, 3 Atk. 8, Bucks v. Drury, 5 Bro. P. C. 570 ; cited; reported 2 Kel. Cha.Ca. 17, 4 Bro. C. C. 50G, n. ; Wilmot, nom. Vizod v. Louden. See 2 Com. 177. Dig. 148 ; Estcourt v. Estcourt, 1 258 EQUITABLE BAR OF DOWER. Jate act does not alter the lau in this respect except so far as it authorises the husband alone to bar his wife's dower, whether an infant or an adult. 7. But under the old law an equitable provision in bar of do^^er will not bind an infant, unless it be as certain a provision as her dower. Therefore a settle- ment of an estate upon an infant for life, after the death of her husband and any third person, will not be a good bar, as the stranger may survive the wife (/). So a provision that the personal estate shall go accord- ing to the custom of London, in bar of dower, or any provision of that nature, will not be deemed an equit- able bar of dower to an infant, on account of the un- certainty and precariousness of the provision (in). 8. In Caruthers v. Caruthers (/i), Lord Alvanley, then Master of the Rolls, addressing himself to what was and what was not an equitable bar of dower to an infant, put the case of a charge in bar of dower made upon an estate with a bad title, and held that it would be no bar. Therefore, whatever opinion might be entertained on the general question, a purchaser for- merly required to be satisfied of the title to the lands upon which the equitable jointure of a fejiie covert married under age was charged. And where the settle- ment rested in covenant, the purchaser could not safely complete his contract until the covenant was actually performed ; for an alienation by the husband of the fund out of which the jointure was to arise, would have been deemed an eviction of the fund, and (0 Caruthers v. Caruthers, 4 (/«) Smith i\ Smith, 5 Ves. 189; Bro. C. C. 500. See Corbet v. Cor- o Russ. 254. bet, 1 Sim. & Stu. G12, affirmed by {n) 4 Bro. C. C 500 ; see 6 Ves. Lord Chan, upon ajipeal. l'J2. OF DOWER BY THE NEW STATUTE. 259 consequently the wife would be let in for her dower (o). 9. But these points cannot affect a purchase within the operation of the late act, for the conveyance will bar the seller's wife of her dower without regard to the question whether she has any jointure or a valid binding one. And as a man can by his declaration alone bar his wife's right, any provision, however infirm, which is declared to be in bar of dower, will no doubt be held to do so, although the wife is an infant. II. Of dower since the new act. 10. The foregoing observations apply to the law as it stood before the 3 & 4 Will. 4, c. 105. That act does not affect copyholds, as the frecbench in them is generally subject to the husband's power of disposition, nor does it extend to the dower of any widow who married on or before the 1st January 1834, and it is not to give to any will, deed, contract, engagement, or charge executed, entered into, or created before that day, the effect of defeating or prejudicing any right to dower (;j). It is, therefore, still necessary to know what the law is with reference to the cases to which the act does not extend. And it must be borne in mind, that as to widows within the exception, their rights are saved in estates acquired by their husbands, even after the 1st January 1834. This will render it necessary for a long period to come to guard, by the form of conveyances to purchasers who were married on or before the 1st January 1834, against dower in the old way, which may be effected so as to leave the (o) Druiy v, Druiy, 4 Bro. C. C. 500, n. ; Power v. Slieil, 1 Moll. 200. {p) Sec. Ilk 260 OF DOWER BY THE NEW STATUTE. fee in tlie purchaser if lie survive liis wife. As, on the one hand, the dower of a woman married on or before the day named cannot be affected by the new law ; so, on the other, it seems clear that such a woman cannot claim the additional benefits in the shape of dower provided by the act. 11. It is usual, it seems, in all cases of conveyances to a purchaser, to insert a declaration depriving his wife of dower, even where there is a limitation to bar the dower of a wife married on or before the 1st January 1834, in order to provide against a future marriage; but this practice, without express instruc- tions, seems not to be correct : it was quite correct to prevent dower from attaching, whilst the husband's power of disposition either by act inter vivos or by will was inoperative against his wife's dower ; but now that he can charge, sell, convey, or devise his estate free from dower, or put an end to it by any deed, it would not be right, without the owner's authority, by a decla- ration in the conveyance to prevent dower altogether. AVhy should the wife's dower be guarded against any more than a descent to a distant unknown relative? Neither can take contrary to the owner's disposition. The real property commissioners, in their first report (ersons of illegitimate birth, who Iiad in law no relations but their own descendants, or by the descendants of such, and in consequence of tlie loss of evidence of pedigree in families of mean condition or origin. 270 DEVISEE TO TAKE BY DESCENT. 5. And when any land shall have been devised, by any testator who shall die after the 31st day of De- cember 1833, to the heir or to the person who shall be the heir of such testator, such heir will be considered to have acquired the land as a devisee, and not by de- scent ; and when any land shall have been limited, by any assurance executed after the said 31st day of De- cember 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person will be considered to have acquired the same as a purchaser by virtue of such assurance, and will not be considered to be entitled thereto as his former estate or part thereof (^/). 6. These are alterations of fundamental rules, for by the old law, the heir, wherever it was practicable, took by descent as his better title, and no man could by deed, without departing with the whole estate out of him, raise a fee simple to his own right heirs by that name as purchasers, nor could he by deed at common law make the heirs of his body take by purchase ; and although by way of use he could eifect the latter object, yet he could not make his heirs general take by pur- chase, or alter the descent by such a limitation by way of use : to effect that object, it was necessary to depart with the whole estate, and to take under a new convey- ance an estate which would vest in him or his heirs by purchase according to the limitation {e). The heir now takes so absolutely as devisee, that pecuniary legatees are not entitled to have the assets marshalled as against him (jT). (f7) Sec. .3. (/) Strickland v. Strickland, 10 (e) Co. Litt. 12 1) ; 22 b, Harg. Sim. .374 ; see Biederman v. Sey- n. ; Watk. Desc. 258—800 ; Gilb. niour,3Beav..3G8;thenote to which Uses, 17, and note. - is corrected in the Corrigenda. DESCENTS BETWEEN BROTHERS AND SISTERS, kc. 271 7. And when any person shall have acquired any land 1)1/ purchase under a limitation to the heirs or to the heirs of the body of any of his ancestors, contained in an assurance executed after the said 31st day of December 1833, or under a limitation to the heirs or to the heirs of the body of any of his ancestors, or under a limitation having the same effect, contained in a will of any testator, who shall depart this life after the said 31st day of December 1833, then and in any of such cases such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such lafid (g) (I). 8. There was before a quasi descent in such cases, but now the ancestor is to be treated as the first pur- chaser, although he never had any interest in the land. II. Of descents between brothers and sisters, and to lineal ancestors. 9. No brother or sister is to be considered to inherit inmiediately from his or her brother or sister, but every iff) Sec. 4. (I) It Avas proposed to still further alter the rule, but the proposition was ahandoned. The commissioners say that it had occurred to them that a person devising or settling an estate in fee simple, might be allowed to direct that the donee or devisee should take the estate as if it had come to him from a particular ancestor ; that an estate, for instance, might be given to a man and his heirs on the part of his mother. The attempt to create limitations of this nature had been frequently made ; the law now forbids such limitations in grants of estates in fee simple, although it allows them on the creation of estates tail. They inclined to the opinion that allowing them in the former case would be a reason- able enlargement of the power of absolute proprietors, and would dimi- nish the inconveniences produced by the technical distinction 1)ctween inheritance and purchase. In this case they thought the distinction between the whole blood and half blood of the purchaser might be abo- lished. 1 Rep. 14. 272 PREFERENCE OF MALES TO FEMALES. descent from a brother or sister is to be traced through the parent (//), 10. Every Ihieal ancestor is capable of being heir to any of his issue ; and in every case where there shall be no issue of the purchaser, his nearest lineal ancestor will be his heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor, so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue, other than a nearer lineal ancestm^ or his issue (i). III. Of the preference of males to females. 11. None of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, will be capable of inheriting until all his paternal ancestors and their descendants shall have failed ; and also no female paternal ancestor of such person, nor any of her descendants, will be capable of inheriting until all his male i)aternal ancestors and their descendants shall have failed ; and no female mateimal ancestor of such person, nor any of her de- scendants, will be capable of inheriting until all his male maternal ancestors and their descendants shall have failed {j). So that paternal ancestors are to be preferred to maternal; and as between paternal ancestors, males are to be preferred to females ; and so as between ma- ternal ancestors, males are to be jDreferred to females, and the descendants succeed to the line. (/i) Sec. 6 ; see CoUingwood v. {i) Sec. 6. Pace, 1 Ventr. 413, and sect. 10, ( j) Sec. 7. post. HALF BLOOD. 273 12. And where there shall be a failure of male paternal ancestors of the person from whom the de- scent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her de- scendants, will be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, or her descendants ; and where there shall be a failure of male maternal ancestors of such person, and their descendants, the mother of his more remote male maternal ancestor, and her descendants, will be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants {k) . 13. This adopts Blackstone's well-known view, which it is conceived is the true rule. IV. Of the half blood. 14. Any person related to the person from whom the descent is to be traced by the half blood will be capable of being his heir ; and the place in which any such relation by the half blood will stand in the order of inheritance, so as to be entitled to inherit, will be ne.vt after any relation in the same degree of the whole blood, and his issue, where the common ancestor shall be a male ; and nej:t after the common ancestor where such common ancestor shall be a female, so that the brother of the half blood on the part of the father will inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother will inherit next after the mother (/). ik) Sec. 8. (0 Sec. 9. 274 OF ATTAINDER. V. Of attainder. 15. And ^vllen the person from ^vllom the descent of any land is to be traced shall have had any relation Avho, having been attainted, shall have died before such descent shall have taken place, then such attainder will not prevent any person from inheriting snch land who Mould have been capable of inlieriting the same, by tracing his descent through ^\\c\\ relation, if he liad not been attainted, unless such land «hall have escheated in consequence of such attainder before the 1st day of January 1834 (w) (I). VI. Of the commencement of the act, and of its operation. 16. But the act does not extend to any descent which took place on the death of any person who died before the said 1st day of January 1834 (w). 17. And where any assurance executed before the 1st day of January 1834, or the will of any person who died before the same 1st day of January 1834, contains any limitation or gift to the heir or heirs of any person, under which the person or persons answer- ing the description of heir is entitled to an estate by purchase, then the person or persons who would have answered such description of heir, if the act had not been made, is entitled by virtue of such limitation or gift, whetlier the person named as ancestor shall or shall not have been living on or after the 1st day of January 1834 (o). (//j) Sec. 10. (/;) Sec. 11. (r>) Sec. 12. (IJ See 54 Geo. 3, c. 145, saving the ri;,'lit of the heir in cases of attainder for felony, 'witli the exceptions of liigii treason, petit treason, or murder, or of abetting, Ikt. the same. ACTUAL SEISIN UNNECESSARY. 275 18. The intention of the act was to put an end to the necessity of an actual seisin in the purchaser, and tlie doctrine o^ a possessio fratris is at an end, for the act provides, as we have seen, for the half blood without allowing it to be excluded by such a possession. 19. The act does not provide generally for the want of possession in an heir, nor does it appear to have been necessary to do so, because, as the descent is to be traced from the purchaser, it is indifferent whether the person last entitled was in actual seisin or not, for his seisin, if it existed, would not affect the descent, which is not to be traced from him. This direction, that in every case the descent is to be traced from the purchaser, should never be lost sight of (jo). 20. It "was intended to abolish the rule requiring seisin altogether, and to enact that estates should pass to the heirs of the person who last died entitled, although he might not have had seisin (q). But at that time it 's^as not in contemplation to trace the descent from the purchaser, the adoption of which ]daii rendered the proposed rule unnecessary. It would, how- ever, have been more simple, and would have broken in less upon our habits of tracing a pedigree, if the original plan had been adhered to, and the descent had still been traced from the last owner, and there seems no sufficient reason for preferring the whole blood to the half blood amongst collaterals in the ascending line : the preference was right enough as between brothers and sisters of the last owner, where he bought the estate and was a purchaser in that sense, but in every other case perhaps it would have been simpler and (.;>) Post, pi. 2C\ (o) 1 Rep. 10. 276 CANONS OF DESCENT. better to have abolislied the distinctions between the Avhole and the half blood, and more ])articularly as the act itself enlarges a man's capacity to take in the cha- racter of a purchaser. For if a man takes through his father by devise, ^vhich is now made to invest him with the character of a purchaser, the estate, on his death intestate and without issue, will go to his sisters of the whole blood in exclusion of the brothers of the half blood, and so in the ascending scale to his aunt of the whole blood in jireference to his uncle of the half blood ; whereas if the estate had descended to him from his father, who was the purchaser (which but for this statute it would have done, although devised to him), the brother of the half blood would, under the act, have been preferred to the sisters of the whole blood, whilst the father's sisters of the whole blood Avould have taken before his brother of the half blood. 21. The student may probably like to be able to compare a view of the canons as laid down by Black- stone (r) with a scheme of those which the new law grafted on the old seems to furnish. Canons according to the New Canons according to Blackstone. Law grafted upon the Old. 1. The first rule is, that inheri- 1. The first rule is, that inheri- tances shall lineally descend to the tances shall lineally descend to the issue of the person Avho last died issue of the person who last died actually seised in infinitum^ but entitled in infinitum, shall never lineally ascend. 2. A second general rule or canon 2, A second general rule or canon is, that the male issue shall he ad- is, that the male issue shall be ad- mitted before the female. mitted before the female. (>') Comm. 2 vol. p. 208. CANONS OF DESCENT. 277 According to Blackstoxe. According to the New Law. S. A. third rule or canon of de- scent is this : that where there are two or more males in equal degree, the eldest only shall inherit ; but the females all together. 4. A fourth rule or canon of de- scents is this : that the lineal de- scendants in infinitum of any per- son deceased shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done had he been liv- ing. 5. A fifth rule is, that on failure of lineal descendants, or issue of the person last seised, the inheritance shall descend to his collateral re- lations, being of the blood of the first purchaser, subject to the three preceding rules. 8. A third rule or canon of de- scent is this : that where there are two or more males in equal degree » the eldest only shall inherit ; but the females all together. 4. A fourth rule or canon of de- scents is this : that the lineal de- scendants in infiniUim of any per- son deceased shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done had he been liv- ing. 5. A fifth rule is, that on failure of lineal descendants, or issue of the person last entitled, the inheritance shall ascend and descend to the lineal ancestors, and to the collate- ral relations of the purchaser. 6. A sixth rule or canon is, that the nearest lineal ancestor shall be the heir of the purchaser, in pre- ference to any of the descendants of such lineal ancestor, and to more remote lineal ancestors and their descendants (other than himself) ; and the descendants of every such lineal ancestor shall succeed next after or in default of him ; so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue other than a nearer lineal ancestor or his issue (s) ; and subject to this rule and to the next, the descent to collaterals shall be subject to the second, third, and fourth canons. (s) Sec. G. T 2 278 CANONS OF DESCENT. According to Blackstone. AcconmNG to the New Law. 6. A sixth rule or canon is, that the collateral heir of the person last seised must be his next colla- teral kinsman of tho ^Yhole blood. 7. Tlie seventh and last rule or canon is, that in collateral inheri- tances the male stocks shall be preferred to the female— (that is, kindred derived from the blood of the male ancestors, however re- mote, shall ])e admitted before those from the blood of the females, how- ever near), — unless where the lands have in fact descended from a fe- male, 7. A seventh rule is, that as be- tween collaterals of a purchaser a relation of the half blood shall suc- ceed next after any relation in the same degree of the whole blood and his issue, where the common an- cestor shall be a male ; and next after the common ancestor where such common ancestor shall be a female. So that the brother of the half 1 flood, on the part of the father, shall inherit next after the sisters of the whole Idood on the part of the father and their issue ; and the brother of the half blood on the part of the mother shall inherit next after the mother (t). The collaterals of the half blood of a person last entitled, who was not a purchaser, will take in a course of descent from the pur- chaser of whose whole blood they are, by force of the direction that in every case the descent shall be traced from the purchaser. li. The eighth and last rule or canon is, that in lineal ascending and in collateral inheritances the male stocks shall be preferred to the female— (that is, the male an- cestors and kindred derived from their blood, however remote, shall be admitted before female ancestors and kindred derived from their blood, however near), — unless where the lands have in fact de- scended from a female. (0 Sect. (T; the words of the act. TRACING A Pedigree. 279 Therefore, under the new hxw (u), none of the maternal ancestors of the person from whom the descent is to be traced [viz., the purchaser], nor any of their descendants, are capable of inheriting until all his paternal ancestors and their descendants shall have failed ; and also no female paternal ancestor of such person, nor any of her descendants, is or are capable of inheriting until all his male paternal ancestors and their descendants shall have failed ; and no female maternal ancestor of such person, nor any of her descendants, is or are capable of inheriting until all his male maternal ancestors and their descendants have failed. 22. Ill tracing a pedigree under the act, it should be borne in mind that a man may be a purchaser as the person last entitled, although he never obtained posses- sion of the estate, nor received any of the rents, and that reversions and possessions, and even possibilities, are now placed on the same footing. The ascending line, father, grandfather, and so on, in the scale, take in the place of and in preference to their descendants, who take immediately in succession to them, just as if they, the ancestors, had had successive estates tail ; therefore if a son purchase an estate and die without issue, leaving a father, brothers and sisters, the brothers and sisters will now be postponed to the father (x). And the half blood are now admitted, except that the preference is given to the whole blood of the first pur- chaser as between his kindred in equal degree or their descendants. 23. Ill the common case of a son purchasing an estate and dying intestate leaving issue, and also hav- ing brothers and sisters of the whole blood, and also brothers and sisters of the half blood on the part of his (u) Sect. 7 ; the wovJm of the tlie mother of the less remote male act ; and see s. 8, supra, 1)y which ancestor, the mother of the more remote {k) 1st Report, 12; jnale ancestor is to be preferred to t3 280 THE WHOLE AND HALF BLOOD. father, his own issue would take according to the ohl canons of descent ; upon their failure the new law would operate, and the father M'ould take in exclusion of all the brothers and sisters and their descendants. Mho of course would be his issue, but after him they would all succeed, — the whole blood just as if he had never intervened, the sons before the daughters, and the daughters all together ; but the children by a dif- ferent venter, that is, brothers and sisters of the half blood to the purchaser, would be post])oned to the children of the marriage from which the purchaser issued, viz., to brothers and sisters of the whole blood; and the issue of the latter would be entitled to a like preference with their ])arents; and the same rule would prevail in each step of the ascending pedigree. The brothers and sisters of the half blood on the part of the mother of the purchaser, that is, her children by a dif- ferent husband, will also inherit, but not imtil after her, and she is postponed until all the paternal rela- tions are exhausted. 24. The letting in of the father naturally led to the admission of the half blood, being of the whole blood to him, in succession to him ; and brothers and sisters, whose descent from each other is no longer immediate, they having to make out their pedigree through him, properly enough are postponed in enjoyment to him, and thus the object of letting in the lineal ancestors and the half blood, is to that extent happily accom- plished without destroying the symmetry of the law of descent. 25. But suppose the father to be the purchaser, and that lie lias children by different wives, and the estate descends to his son by his first wife, who dies without THE WHOLE AND HALF BLOOD. 281 issue, a question would arise whether the brothers of the half blood to the deceased were to be preferred to the sisters of the whole blood ; and it seems that they would, for now the descent is to be traced from the purchaser, and not from the person last seiKsed or entitled, and the brothers of the half blood of the per- son last entitled are of the whole blood of the purchaser. The case does not fall within the 9th section, whicli provides for the letting in of the half blood : that pro- vision is, that any person related to the person from whom the descent is to be traced by the half blood, shall be capable of being his heir, which does not embrace this case. But the case seems to depend upon the 2d section, which directs in every case the descent to be traced from the purchaser, and that by its own force lets in the half blood of the person last entitled, being of the whole blood of the purchaser ; so that if the son purchased, his sisters of the whole blood would be preferred to his brothers of the half blood ; whereas if his father purchased, the sisters would have to give way to the brothers ; and the same rule prevails in every descending step of the pedigree from the pur- chaser, which is governed by the 2d section, whilst the ascending steps from the purchaser are regulated by the 9th section. In other words, every descendant of a purchaser will take as heir in his turn, although of the half blood of the person last entitled, and will not be postponed to the whole blood; therefore if the grandfather was the purchaser and the person last entitled was the grandson, who died without issue, his uncle of the half blood would be preferred to his aunt of the whole blood . 26. By a literal construction of the 2d section it was t4 282 ESTATE OF COPAUCENElt DESCENDS geiicmlly supposed that if a man purchased in fee, and died leaving" issue three daughters only, and one of the daughters afterwards died intestate, leaving issue a son, then as the descent was to be traced from the pur- chaser, the share of the deceased daughter would descend to her surviving sisters and to her own son in coparcenary, and consequently in the result each of the surviving sisters would take four-ninths, and the son one-ninth only, of the entirety (j/). This construction would have surprised the framers of the act, who evi- dently did not intend to provide against the whole of the estate of a \\ onian, although a coparcener, descend- ing to her son : that was a case which required no remedy. The late V. C. Shadwell accordingly decided that the case was left to the old law, and that the son would inherit the entire share of his mother : in thus deciding he did no violence to the words of the statute, but by a judicious construction of them prevented them from creating a mischief where none before existed : it vvould have been no amendment of the law of inhe- ritance to take from a son two-thirds of his mother's estate in order to vest them in his aunts. In the case alluded to, where the bill was for a partition (z), a man who was assumed to be tlie purchaser died in 1826 intes- tate, leaving two daughters, B. and C, his co-heiresses, who both became seised of the estates. B. died intes- tate in June 1835, leaving D., her eldest son and heir at law. C, the other daughter, died in 1839 intestate, leaving E. her eldest son and heir at law. The repre- sentatives of D. (the son of the daughter who died first) claimed five-eighths against E. (the son of the daughter who died last), contending that under the 2d section (y) 1 Hayes' Conv. G14. (i) Cooper v. France, li Jur. 214. WHOLLY TO HER ISSUE. 283 of the statute i>.'s moiety descended in moieties ou her sou D. aud her sister C, so that D. took only one- fourth = two-eighths, and C. took the other one-fourth or two-eig-hths, which being added to her original two- fourths or four-eighths, made six-eighths, and that upon her death these six-eighths descended in equal moieties to her own son and to the son of her deceased sister, so that the former took only three-eighths, and D., her sister's son, took the other three-eighths, which being added to his original two-eighths made five- eighths. Nothing can show more forcibly the absurdity of the law according to this construction : under it D., although his mother's heir, lost half of his inheritance on her death ; whilst on his aunt's death,, although she also left a son and heir, he gained more than he had previously lost. But Shadwell, V. C, during the argu- ment, said the question was, whether the act applied to a case which was perfectly plain before, as, for instance, to the case of descent on an eldest son. — The question wa'='^ whether when a lady died owner of an estate, it Avas necessary to make any question about her descent if she leaves an only child, — whether this section will be made to apply to a case where the circumstances did not require that the person last entitled to the land should be considered the purchaser, — whether for tracing any descent which the act meant to interfere with it was necessary to trace it further than from the mother to the son. You make this absolutely necessary if you suppose that the act meant to inter- fere with a plain case, about which there could ])e no dispute. In giving judgment, the Vice-Chanccllor observed that he could not bring himself to entertain the least doubt that jB.'s four-eighth's descended to her 284. DESCENT TO COPARCENEr's ISSUE. SOU : lie did not see liow any one acqnainted with the principles of law could doubt. Could you suppose that an act of parliament, by any portion of it, meant to introduce doubt into a case that was so plain before the act passed ? Was it not the meaning of the act to leave the law of inheritance in such j^arts as were plain absolutely as it was found, and only to alter it where it was doubtful? Just observe what was the purview : " To the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require," — that was the general object stated in distinct words, — " the person last entitled to the land shall, for the purposes of this act, be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same." There the act was speaking of what ought to be the rule in cases where the thing was doubtful ; but wdiere the thing was so plain that nobody could doubt, you must make it consistent ; and if you see an act was passed to make the thing clear, do not say that the act was to make it doubtful. On looking through the act, that portion of the 2d section appeared to be so plain to him that he should not send the case to law, although he had in the first instance intimated that it would be necessary to do so. It was accordingly declared that J5.'s son, on her death, took the whole of his mother's moiet}^ of the estate, and that C*s son in like manner took his mother's moiety (I). (I) The Real Property Commissioners observe, in their report, that the rules of descent are for the most part well understood, and appear to he ■well suited to the habits and feelings of the people. They state the descent to be to sons and their descendants, and in default of them to daughters, in equal shares, and to the descendants of any deceased t 285 ] CHAPTER V. OF THE NEW OPERATION OF DEEDS, AND OF THE MEKGER OF ATTENDANT TERMS (I)» 1. 8 c^- 9 Fid. c. lOG; lease for a t/ear ; feoffment ; iMHition and exchange ; surrenders ; leases, assignments ; " give" or " gi-ant ; " stranger to deed; indenting deed. 2. Conveyance of contingencies., S;c. ; disclaimer by married wo- man ; contingent remainders merged reversion. 3. 8 5^ 9 Vict. c. 112 / merger of attetidant terms ; saving. 4. Object of the act. 5 . Satisfied term attendant by express declaration, merged : Doc V. Price. G. If right to inheritance barred, so is right to term. 7- Doe V. Jones. 8. Observations on that case. 1. Two important acts affecting the law of real property have lately passed. By the first (a), a, lease (a) 8 & 9 Vict. c. 106 ; see 7 & 8 Vict. c. 7G, and observe the time of its duration. By s. 1 of 8 & 9 Vict. s. 8, of 7 & 8 Vict., as to con- tingent remainders becoming exe- cutorj'' devises, was wholly repeal- ed ; and s. 9 as to conveyances of legal estates in mortgages, and s. 10 as to receipts of trustees, were not re-enacted. The writer may take this opportunity of stating that it was a misapprehension to suppose that he had changed his opinion on the question of perpe- tuity as bearing upon contingent remainders ; see Cole v. Sewell, 1 Jo. & Lat. ; Lewis App. to Treat, on Perp. daughters, such descendants taking the share which would have gone to the parent, if living. When there is no lineal descendant, the estate goes to the brothers or their descendants, and in default of those to the sisters or their descendants, as before (in the usual priority). "In case of the failure of brothers and sisters, and their descendants, it becomes necessary to inquire whether the deceased proprietor took the estate himself by inheritance, or whether he acquired it immediately by a deed or will, or, in technical language, was a purchaser." (I) See also 8 & 9 Vict. c. 119, for the purpose of shortening convey- ances ; 8 & 9 Vict, c. 124, for the like object as to leases. 286 OPEUATION OF DEEDS. for a ijear is reiulciod iiiiuccessciry by providing that all corporeal licreditanients sliall, as regards the coii- Ycyaiice of tlic immediate freehold, be deemed to lie in grant as -well as in livery (Z*) ; ^feoffment (unless made under a custom by an infant) is made void in law, unless evidenced by deed ; and a partition and exchange (except of copyholds), and a lease required by law to be in "writing, and an assignment of a chattel interest (not being copyhold), and a surrender in writing of ail interest in any liereditament, not being a copy- hold, and not being an interest which might by law have been created without writing, will be void in law, unless made by deed ; but this does not extend to Ire- land, as far as relates to a surrender (c). A feoffment is no longer to have a tortious operation ; an exchange, or a partition is not to imply any condition in law; the word give or grant is not to imply any covenant in law, except so far as by force of any act of Parliament, it may imply a covenant {d). Under an indenture, an immediate estate and the Ijencfit of a condition or covenant may be taken, although tlie taker be not named a party, and a deed purporting to be an inden- ture need not be indented [e). These several provi- sions refer to deeds executed after the 1st of October 1845. 2. Contingent interests, possibilities cou])led with an interest, and rights of entry, as we have seen, may under the act be conveyed by deed, and a married Avomau may disclaim by deed (./), which provisions are to operate after the 1st of Octol)er 1845. And a {h) Sec. 2. ((Z) Sec. 4. (c) Sec. G ; the woi'cl release in (c) Sec. 5. this section seems to rehite to s. 2 ; (/) Sections C, 7. see Su'nl. Cone. View, 7-J. MERGER OF ATTENDANT TERMS. 287 contingent remainder existing- at any time after the 31st of December 1844, is to be, and if created before the passing of the act, is to be deemed to have been capable of taking effect, notwithstanding the deter- mination by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner as if such determination had not happened (g) ; and finally, when the reversion on a lease shall after the 1st of October 1845, be surrendered, or merge, the next estate is to be deemed the reversion expectant on the same lease, to the extent and for the purpose of pro- serving such incidents to, and obligations on the same reversion as but for the surrender or merger woukl have subsisted (h). 3. The other act (i), provides that every satisfied term of years, which, eitlier by express declaration or by construction at Law, shall upon the 31st of Decem- ber 1845, be attendant upon the inheritance or rever- sion of any lands, shall on that day absolutely cease and determine, but with an exception, that every such term which shall be so attendant by express declara- tion, although made to cease, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim and demand, as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with after the 31st of December 1845, and shall for the purpose of such protection be considered in every court of law and equity to be a subsisting term (k) ; and it is further provided that every term of years then subsisting, or iff) Sec. 8. duniig- which the latter will ope- (/<) Sec. 9 ; compare the provi- rate, slons with those of the 7 & 8 Vict. (i) 8 & Yict. c. 1 12* 76,- and keep in view the period (i) Sec, 1. 288 CESSER OF SATISFIED thereafter to be created, becoming satisfied after the 31st December 1845, and -which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance, shall, immediately upon the same becoming so attendant, absolutely cease and determine (/). 4. The object of this act appears to be to merge all attendant terms, but to preserve to the persons enti- tled the protection which a term would have afforded to them, where upon the 31st December 1845 it was attendant by express declaration. But even this is a limited jirotection, for it gives not such protection as a fiirther assignment of it for a purchaser would confer, but such protection as it would have afforded if it had continued to subsist, but had not been assigned or dealt "with after the 31st December 1845. Such, it has been observed, is the jjower of an act of Parliament, that although such a term has absolutely ceased, yet it is to be deemed for the purposes expressed a subsisting term. But this, it is added, puts an end to the assign- ment of satisfied terms, and there appears to be no foundation for the notion that any such term can now be kept on foot by assignment (m). 5. The point whether a satisfied term attendant by express declaration on the 31st December 1845, ceased on that day, M'as decided in the affirmative in Doe v. Price (71), although the Court appears to have been puzzled by the act. An heir at law first mortgaged an estate, supposed to have descended to him, and then sold it, and a fine was levied, which it was held con- ferred a good title, and upon each occasion an old term (/) Sec. 2 ; Garrard r. Tuck, 8 («0 Sugd. Pinch., 11th edit., 777. Com. Ben. Rep, 231. (n) IG ^Mees. & Wels. G03, ATTENDANT TERM. 289 of 500 years was assigned to a trustee to attend, and all tills took place before 1845. It turned out that the ancestor had made a will, and the devisee brought an ejectment against the purchaser, and the devisee, under a Judge's order, added a demise in the name of the trustee of the term. The Court held, 1. that the term had ceased ; 2. That the defendant, the purchaser, did not want the protection of the term, as he had obtained a valid title by the fine. But the Court added, that if it had turned out that the defendant wanted the protection of the term on the ground that he was a purchaser for valuable consideration, it would be neces- sary for them to determine what course he ought to take ; probably it M'ould be necessary for him to apply to a court of equity, or to apply to that Court to strike out of the declarati(>n the demise in the name of the triistee. We may observe that, assuming the term to be in existence, it was in direct contravention of the act to allow the devisee to add a demise in the name of the trustee of the term, as he was the trustee by express declaration for the purchaser. But if the fine had not established a good title in the purchaser, yet I apprehend there was no real difficulty, for although the term had ceased, yet the purchaser required and was entitled to the protection of it, and the Court in which the ejectment was brought was bound under the act to give him the same benefit as if the term had existed, and he had set it up in bar of the ejectment. The 1st section of the act expressly enacts, that the term although thereby made to cease and determine, shall still afford protection, and ^' shall for the purpose of such protection be considered in every court of law and of equity to be a subsisting term.'" 290 WHERE A TERM IS STILL IN GROSS. G. In a later case in the same court (o), where upon the'purchaso of the reversion in fee a satisfied term was assigned to a trustee to attend, the heir of the pur- chaser l)rouolit an ejectment against a stranger, and Iiad no demise by the trustee of the term, for the trus- tee had died, and administration had been refused as the term was merged by the statute, the counsel for the heir properly urged, that if his right was not barred he did not want the term which had ceased, and he admitted, that if the right to the inheritance M'as barred, the term was barred also. The Court held, that under the circumstances theejectment was barred, and it became, they said, unnecessary to consider the effect of the satisfied term, though they had no doubt that it was to be deemed to have absolutely ceased under the statute on the 31st December 1845, and consequently would have afforded no defence to this ejectment. 7. In a still later case (p) the term was held not to have ceased. In 1 838 Mary Humphreys, who was seised in fee, demised the property to Edward Davies for 1 ,000 years by way of mortgage. [In 1 839, for a pecuniary con- sideration, she conveyed the property to her daughter Caroline in fee, subject to the 1,000 years term. This conveyance was not disclosed to the subsequent pur- chaser.] In 1 842, Mary Humphre5's conveyed the fee to Tsathaniel Minshall, upon trust to sell and to pay off Davies's mortgage and a further sum, and then upon trust for herself, with a proviso for redemption. In 1 844, Mary Humphreys conveyed the fee for a pecuniary consider- ation to John Clay, subject to the mortgage to Davies. In the same year the executors of Davies having- called (o) Doe r. Moiildsdale, IGMees, (/>) Doe v. Jones, 10 Jur. 821 ; & Wels. 080. )8 I. J., Q. 15., 200, Where a term is still ix gross. 291 in his money, Clay and Meredith Humphreys (who had contracted with Clay for the purcliaso of a moiety of the property), in consideration of the mortgage money paid by John Thompson to the executors, and of furtlier sums advanced by him to CMay and Humphreys ; the executors of Davis assigned tlic 1,000 years' term to John Thompson, with a proviso that if Clay and Hum- phreys ]iaid the monies advanced, with interest, on a day named, John Thompson would assign tlie 1,000 years' term as Clay and Humphreys siiould direct or appoint. And for further assurance, Minshall and Clay and Humphreys conveyed the fee to Richard Thomp- son in trust for sale, or to re-convey to Clay and Humphreys on payment of the mortgage money (I). In September 1847, part of the property being required for a railway. Clay received the purchase money from the company, and thereout paid off the mortgages. The question in an ejectment on the demises of Clay and Humphreys and of Richard Thom]ison and .John Thompson against the person claiming under the con- veyance of 1839, Nras, whether the term was satisfied under the statute, and attended the inheritance by intendment of law, so that it could not be set up in the ejectment. The Court of Queen's Bench held that the term was a subsisting one, upon Avhich the lessor of the plaintiff could recover. Tliey observed that it was not necessary to decide whether the defendant claiming to have the fee could maintain that this was a satisfied term, the satisfaction of the mortgages having been (I) The Lord Chief Justice, in delivering judgment, stated that tlie term was declared to he "to secure the mortgnge money to [John Thompson], and afterwards to he re-conveyed as Clay and Humphreys should direct." U 292 WHERE A TERM made not by liiin but by Clay, under a jiiistaken belief that the equity of redemption in fee had been conveyed to himself, because they were of opinion that this term was not within cither of the alternatives in the statute for determining terms. It was not attendant on the inheritance by express declaration, there being' no such declaration, neither was it by construction of law, for the trust was expressly declared to be for Clay and Hum])hreys, who had not the inheritance, and although they were supposed to be entitled thereto when the deed was executed, that supposition was then l)roved to have been founded on a mistake. That mis- taken supposition had no effect upon the express words of the instrument. 8. It seems difficult to reconcile this decision upon the grounds stated with the provisions of the statute. The term clearly Mas a satisfied one, and it cannot matter in most such cases by whom it was satisfied. The question is between the two purchasers, and not between either of them and the mortgagee. The term, when the money was paid off, became attendant on the inheritance by construction of equity. If the express trust for Claj and Humphreys was to be attended to, that in effect was a trust to attend the inheritance, for they were considered to be the owners of the inheritance ; and the trust therefore was tanta- mount to an express trust to attend ; and it cannot, it may be thought, vary the construction that their title to the fee was, unknown to them, an infirm one^ and that they required the protection of the term ; for that protection, whether wisely or not, w^as intended to be taken away by the statute. The term was treated l^y the Queen's Bench as if it had been declared to be in IS STILL IN GROSS. 293 trust for Clay and PIiimi)lireys as a term in gross, and to form part of their personal estate in all respects, and not to attend the inheritance, however valid their title to it might prove to be : so that the 1 ,000 years' term would go to their executors as part of their personalty, and the remainder only in fee ex- pectant upon the term would go to their heirs. This view cannot be maintained independently of the statute, and the statute introduces no new rule of construction. Under the old law the term would have attended the inheritance, and would have protected it against the secret conveyance to the daughter : by the new law the term, it may be urged, ceased to exist when the money was paid off, and if so it no longer afforded any protection to the later purchaser. If Clay and Humphreys were not to be considered as having paid off the mortgage, inasmuch as the estate itself cleared off the debt, it would perhaps be difficult to support the decision. The Court deemed it unnecessary to decide whether the defendant could maintain that the term was a satisfied one, as the mortgage was satisfied not by him but by Clay ; so that the jjayment was treated as if made by Clay and Humphreys out of their own money. Now if that view could be supported, it would seem that the term ought not to have been treated as a satisfied term, and that the case might have been decided in favour of the plaintiff on that ground. For it will be observed that the fee was con- veyed to the daughter in 1839, subject to the 1,000 years' mortgage term, to which of course it would have been subject had there been no such provision in the conveyance to her. Now she was not entitled to hold the estate discharged of that term as a mortgage, for u2 294 WHERE A TERM IS STILL IX GROSS. ill the view in Mliicli we are now looking at the case, it liad not been paid off by any person tlirougli whom she claimed ; and Chiy and Hnmphreys, althongh they could not avail themselves of the term as a protection to the fee simjjle ichich theij supposed they had acquired^ yet they were entitled to hold the term through Thompson, the mortgagee, until they were paid off the original mortgage money. If the daughter had, after the decision at law, filed a bill to redeem, the opera- tion of the act in this difficult case must have been determined. It should be borne in mind that it was not decided tliat Clay and Humidireys were entitled to jirotect by the term the fee su])posed to have been conveyed to them, but it was simply decided that they were entitled to make use of the term, which had not been re-assigned, as a term still subsisting in the mort- gagee : and that decision would not have been open to objection had Clay and Humphreys ]jaid oft' the mort- gage with their own money, and the case had been decided upon that point. But the conveyancer is embarrassed by the grounds ujion M-hicli the decision was rested. [ 295 ] CHAPTER VI. OF RELIEF AGAINST DEFECTS IN LEASES GRANTED UNDER POWERS OF LEASING. 12i.S-13 Vicf. c. 26 ; invalid lease mider 2^ower of leasing to operate as a contract for valid lease in favour of lessee. Acceptance of rent a confirma- tion. {Leases granted prematureJi/, va- l lid if lessor lice to time when [ lie coxild Itave granted them. \ Leases to operate vnder jyotver. G. Rights of lessors and lessees sai'cd. 9. Right of lessee under the act : hardship on rcmaindevman . 10. 10 c*^- li Vict. c. 17 : new pro- vision as to accej^tance of rent : confirmation in writing re- quired. 11. Where person able to confirm the lease without variation, lessee bound to accept the con- firmation. 12. Observation on the two acts. 1. The extent to whicli equity would relieve noalnst defects in leases under powers of leasing has been fully considered elsewhere (^a) ; and we have now to state the aid afforded by the legislature to lessees under powers whose leases are defective. The first act passed with that object is the V2 k 13 Vict. c. 2G (/>»), which recites thnt, through mhiahe or inadvertence on the part of persons granting leases, and through igiiorauce on the part of lessees of the titles of persons from whom leases are accepted, leases granted l)y persons having valid powers of leasing are frequently invalid as against (a) Sugd. Pow. this act was not to come into ope- Ib) By the 12 & 13 Vict. c. 110, ration yntil the l«t June 1850. u 3 296 DEFECTIVE EXECUTIONS Or POWERS the successors in estate of such persons hy reason of the non-observance or omission ofi>ome condition or restric- tion, or hij reason of some other deviation from the terms of such powers. And it recites that leases granted in the intended exercise of such powers are sometimes invalid as against the successors in estate of the persons granting the same, by reason that at the time of grant- ing the same the person granting the lease could not lawfully grant such lease, although at a subsequent time, and during the continuance of his estate in the hereditaments comprised in such lease, he might have granted the same in the lawful exercise of such power. 2. The act then provides (c) that where, in the in- tended exercise of any such power of leasing as afore- said, -whether derived under an act of Parliament or under any instrument lawfully creating such power, a lease had been or should thereafter be granted which is, 1)y reason of the non-observance or omission of some condition or restriction, or by reason of any other devia- tion from the terms of such power, invalid as against the person (I) entitled after the determination of the interest of the person granting such lease to the rever- sion, or against other the person who, subject to any lease lawfully granted under such power, would have been entitled to the hereditaments comprised in such lease, such lease, in case the same have been made (c) Sec. 2. (I) And the act includes corporations aggregate or sole, unless there be something in the context repugnant to such construction ; sec. 1 : but it does not extend to any lease by an ecclesiastical corporation or spiritual person, or to any lease of the possessions of any college, hos- pital, or charitable foundation, sec. 7 : and see infra, I'l. ; nor does it extend to Scotland ; sec. 8. OF LEASING : ACCEPTANCE OF RENT. 29/ bond fide, and the lessee named therein, his heirs, exe- cutors, administrators, or assigns (as the case may re- quire), have entered thereunder, shall be considered in equity as a contract for a grant at the requed of the lessee, his heirs, executors, administrators, or assigns (as the case may require), of a valid lease under such power, to the like purport or effect as such invalid lease as aforesaid, save so for as any variation may he necessary in order to comply ivith the terms of such power; and all persons who would have been bound by a lease lawfully granted under such power shall be bound in equity by such contract, provided that no lessee under any such invalid lease as aforesaid, his heirs, executors, administrators, or assigns, shall be en- titled, by virtue of any such equitable contract as afore- said, to obtain any variation of such lease, where the persons who would have been bound by such contract are willing to confirm such lease without variation. 3. And it is provided that the acceptance of rent under any such invalid lease shall, as against the per- son so accepting the same, be deemed a confirmation of such lease {(I). 4. And it is further provided, that where a lease granted in the intended exercise of any such power of leasing as aforesaid is invalid by reason that, at the time of granting thereof, the person granting the same could not lawfully grant such lease, but the estate of such person in the hereditaments comprised in such lease shall have continued after the time when such, or the like lease might have been granted by him in the lawful exercise of such power, then in every such case such lease shall take effect, and be as valid as if the same (. Lunatics, SjC., incapable of mak- ing a will. 22. n. Alie7i's will. 7. Will made binder a disahiliti/. 8. lloir a trill i.t to be executed. 2.^. 9. Ajfj^ointmenta by ivill included. 10. Pvbliration unnecessary. 11. Witnesses how to attest will. 12. No relief in equity : appoint- ment. 24 10. Legacies] by unattested codicil 'not supported hy charge in will. 25 14. lestato/s signature to he at the 2(] foot or end of will. 27 15. Early construction of the words. 28 10. Where a printed form was used. 29 17. Name introduced into the attes- 30 tation clause. 31 18. A signature in the margin in- valid. 82 Restricted construction of the words " foot or end." Smee v. Bryer : signctturc re- quired to be immediately at conclusion of will. Observations thereon. Signature after ccttestaiion clause .if ill valid : even ivhere it fol- lows the names of the wit- nesses. Cases in which the rule in Smee V. Bryer has been applied: Ilolbech V. HolbecJi. '' Where the signature is after the attestation clause, there must not be a blank space be- fore that clause : 3linfy'.'i case : Jlearnc's case : I/ill's case. Whittlc^s case conti-a. Smith'' s ca.fc : appointment. Shadu'cll's case. Ifhitc^s case. Observations on those cases. Rowe's case : Wrightson^s case. Space allowed for a Hind testa- tor^ s signature. OF DEVISES. 303 33. TVill must be signed before imt- nesscs sign : testimony of witnesses. 34. Attesting witness may sign for testator: marlsman: signa- ture by first ImsbaiuVs name. 85. What is a sitfflcient acknow- ledgment by testator of his signature. 37. May be more than two wit- nesses : competency of wit- nesses : felony : lunacy. 38, How they are to sign : marks- man : initials. 39. Whctt is a sitjicicnt presence of testator during signature by wiluesses : blind man. 40. Not material where witnesses place their signatures. 41. No form of attestation ncces' sary. 42. Where a codicil sets up an in- formal will: incorporation by reference of other papers. 43. Effect cannot he given by icill to future codicils not duly exe- cuted : operation of confir- mation. 44. Effect of unattested and unex- plained alterations. 1. The act for the amendment of the laws with respect to wills, which does not extend to any will made before the 1st January 1838, nor to any estate jnir autre vie of any person who died before that day, nor to Scotland [a] (I), first provides as to what ])ro- perty a man may dispose of by will ; 2, by whom a will may not be made ; 3, how a will is to be executed, («) 1 Vict. c. 26. (I) By sect. 34, it is enacted, that the act shall not extern! to any Avill made hefoie the 1st day of Jamiavy 1838, and that every will re-exe- cuted or republished, or revived by any codicil, shall for the puri)oses of the act be deemed to have been made at the time at which the same shall be so re-executed, repul^lished, or revived. The words which pre- vent the act from extending to any will made before ]st January 1838, do not apply where a will so made is republislied by a codicil after that date ; the republication being the new making of the will and the codicil, need be attested by two witnesses only ; Brooke v. Kent, 3 Moo. P. C. C. 334 ; Andrews v. Tunier, 3 Adol. & Ell. N. S. 177 ; Winter v. Winter, 5 Hare, 306. The act, by the same section, is not to extend to any estate jmr autre vie of any person who shall die before the 1st day of January 1838. And by sec. .35, it is enacted, that the act shall not extend to Scotland, 304 OF DEVISES. and the effect of an attestation by legatees and credi- tors ; 4, how a will is to be revoked and revived, and how it is to operate ; 5, the oj^eration of residuary and general devises ; 6, where words of limitation shall be supplied, and the construction of the words " die without issue," &c,, and of devises to trustees ; 7, where devises shall not lapse ; 8, when the act is to operate ; and of each of these in its turn (1) ; but not exactly in the order of the statute. (I) B}' sec. 1, it is enacted, that the words and expressions herein- after mentioned, which in their ordinary signilication have a more con- fined or a different meaning, shall in the act, except where the natnre of the provision or the context of the act shall exclude such construc- tion, be interpreted as follows ; (that is to say,) the word " will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the reign of King Charles the Second, intituled, " An Act for taking away the Court of Wards and Liveries, and Tenures in cajyitc, and by Knights Service, and Purveyance, and for settling a Revenue upon His Majesty in lieu thereof," or by virtue of an act passed in the parliament of Ireland in the 14th and 15th years of the reign of King Charles the Second, intituled, " An Act for taking away the Court of Wards and Liveries, and Tenures in capite, and by Knights Service," and to any other testamentary disposition ; and the words "real estate" shall extend to manors, advowsons, messuages, lands, tithes, rents, and heredita- ments, whether freehold, customary freehold, tenant right, customary or copj'hold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein ; and the words " per- sonal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. And by sect. 2, it is enacted, that an act passed in the 32d year of the OF DEVISES. 305 2. The act has no provision as to the date of a will, but of course every will should be dated, although a reign of King Henry the Eighth, intituled, " The Act of Wills, Wards, and Primer Seisins, whereby a Man may devise Two Parts of his Land ;" and also an act passed in tlie 34th and 35tli years of the reign of the said King Henry the Eighth, intituled, " The Bill concerning the Explanation of Wills ;" and also an act passed in the parliament of Ireland in the 10th year of the reign of King Charles the First, intituled, "An Act how Lands, Tenements, &c. may he disposed by Will or otherwise, and concerning Wards and Primer Seisins ;" and also so much of an act passed in the 29th year of the reign of King Charles the Second, intituled, " An Act for Prevention of Frauds and Perjuries ; " and of an act passed in the parliament of Ireland in the seventh year of the reign of King William the Third, intituled, "An Act for Prevention of Frauds and Perjuries," as relates to devises or bequests of lands or tenements, or to the revoca- tion or alteration of any devise in writing of any lands, tenements, or hereditaments, or any clause thereof, or to the devise of any estate pur autre vie, or to any such estate being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein ; and also so much of an act passed in the fourth and fifth years of the reign of Queen Anne, intituled, " An Act for the Amendment of the Law and the better Advancement of Justice," and of an act passed in the parliament of Ireland in the sixth year of the reign of Queen Anne, intituled, " An Act for the Amendment of the Law and the better Advancement of Justice," as relates to witnesses to nuncupative wills ; and also so much of an act passed in the 14th year of the reign of King George the Second, intituled, " An Act to amend the Law concerning Common Recoveries, and to explain and amend an Act made in the 20tli 3"ear of the reign of King Charles the Second, intituled, ' An Act for Prevention of Frauds and Perjuries,' " as relates lo estates ^>2«r mitre me ; and also an act passed in the 25th year of the reign of King George the Second, intituled, " An Act for avoiding and putting an end to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning Real Estates in that Part of Great Britain called England, and in His Majesty's Colonies and Plantations in America," except so far as relates to His Majesty's Colonies and Plantations in America ; and also an act passed in the parliament of Ireland in the same 25th year of the reign of King George the Second, intituled, " An Act for the avoiding and putting an end to certain Doubts and Ques- tions relating to the Attestation of Wills and Codicils concerning Real Estates ;" and also an act passed in the 55th j^ear of the reign of King- George the Third, intituled, " Au Act to remove certain Difficulties iu 306 INFANT CANNOT MAKE A WILL. date is not required by law. It has no reference to the statute of uses, but that statute would, M'here required, operate upon devises under it. It provides, as we shall see, wliat quantity of estate shall in certain cases be taken by trustees under a devise, but it does not, except by its general provisions, direct liow trust and mortgaged estates shall pass by devise, but properly leaves that to tlie old rules of construction. Indeed, with certain exceptions, it properly leaves the construc- tion, as of old, to the courts having jurisdiction. It leaves the doctrines of equity upon election and satis- faction, and the like, wholly untouched ; but by ena- bling a man by will to dispose of after-acquired estates, it renders it often unnecessary to have resort to the doctrine of election. The law as to donations mortis cansa also remains unaltered, and the act does not extend to the colonics (b). I. By whom a will may not be made. The provi- sions simply are, 3. That no will made by any person under the age of twenty-one years shall be valid (c). This effected a great alteration as regarded personal estate, and it \)YQ' vents an infant from making a will, even under a power. of personalty (I). The will of an infant would {h) See H. Sugd. Wills, 142, 143. (c) Sec. 7. the Disposition of Copjliold Estates Ly W^ill," shall he ami the same are therehy repealed, except so far as the same acts or any of them re- spectively relate to any wills or estates />?«■ aw^re rie to which the act does not extend. (I) In the case of an illegitimate child, this provision may carry his personal fortune to the Crown instead of to those who nught justly be the objects of his testamentary bounty. In the case of an infant Iiaving a power to appoint personalty by will, marrying and having children and dying under twenty-one — a case of not infrequent occurrence — the MARRIED woman's POWER REMAINS. 307 not become operative by attaining his niajority. The act makes a will speak as to the property comprised in. it as at the death of the testator, but that does not extend to the testator's capacity, or to the objects of his bounty. The power to an infant to appoint by will testamentary guardians of any child of his under twenty-one, and not married, appears to be repealed ; for although the 12 Car. 2, c. 24, s. 8, which gave the power by deed or will, is not repealed, yet the word will is by the 1 st section extended to a will under the statute of Charles, and by the 7th section no will made by any person under twenty-one is to be valid. This, it has been supposed, was probably not the intention, for no inconvenience had resulted from the power given by the statute of Charles {d) : the power, however, to an infant to appoint guardians under the 12 Car. 2 hy deed still remains. 4. That no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of the act {e). She may therefore still dispose by will of any real or per- sonal property settled to her separate use, or over which she has a power of appointment by will; so she may make a will of personal estate with her husband's con- sent, or she may appoint an executor to a will of which she is executrix, and she may make a will when her husband is banished for life by act of Parliament, or has abjured the realm, or any other will which as a (J) H. Sugd. Wills, 6. (c) Sec. 8. alteration prevents him from proA'iding for his family, and the property, contrary to the intention of the donor, may go over to a tliird person, who was intended to take only in case there was no will of the infant. The case of such a power, with a gift to a third person in default of its execution, ought to have been excepted, H. Sugd. Wills, 7, «?* X 308 lunatics: aliens: disabilities. maiTicd Momaii slie might have made before the act passed. But the act gives her no new power, therefore, to enable her to devise copyhohls, a power must be vested in her by surrender, although in other cases the act renders a surrender to the will unnecessary (A). 5. The act leaves the old law to operate as to luna- tics or the like, and with all the uncertainty which prevails as to what is termed partial insanity (i). Of course a will by a sane man cannot be affected by his subsequent incapacity. 6. The act does not affect the will of an alien : such a will would not become operative by his subsequent naturalization (k). Nor does it alter the law in regard to persons attainted of high treason or felony. 7. But a will made whilst under a disability, although it will not become operative by the removal of the disability, may yet have effect given to it by republica- tion. II. How a will is to be executed ; and the effect of an attestation by creditors and legatees. 8. It is enacted (/), that no will shall be valid unless it shall be in writing, and executed in manner herein- after mentioned ; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and (h) Doei-.Bartle, 6Bam.«!l-Adol. refused a petition foi" a commission 492; see Doe v. Ludlam, 7 Bing. of review: M.S. 275 ; Doe r. Bird, 5 Barn. & Adol. (k) Fish v. Klein, 2 Mer. 431 ; 695. Fourdrin v. Gowdey, 3 Myl. & Kee. (i) Dew v. Claike, 1 Add. 279 ; 383. 3 Add. 79; Lord Lyndhurst, C, (I) See. 9. ^^4^ zv ,^/t*«^>'. a ^.^ <^^i^ a«j^ A^ ^■^^'-^-^ .0^74^ -^/y.<~« ^-^--; 'y '72 /'/^ HOW A WILL IS TO BE EXECUTED. 309 shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. 9. And it is enacted, that (m) no appointment made by will, ill exercise of any power, shall be valid, unless the same be executed in manner before required ; and every will executed in manner before required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execu- tion or solemnity (I). 10. And it is provided, that every will executed in manner before required, shall be valid without any other publication thereof («). The getting rid of pub- lication is a great improvement. 11. This great alteration requires every will to be attested by two witnesses, and to be signed at the foot, and the witnesses must both be present during the transaction, and sign in the presence of the testator ; but no form of attestation is necessary ; the witnesses (m) Sec. 10. (n) Sec. 13. (I) Sect. 11 provides, that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of the act. And by sec. 12, it is enacted, that the act shall not prejudice or affect any of the provisions contained in an act passed in the eleventh year of the reign of His Majesty King George the Fourth, and the first year of the reign of his late Majesty King William the Fourth, intituled, "An Act to amend and consolidate the Laws relating to the Pay of the Royal Navy," re- specting the wills of petty officers and seamen in the royal navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize-money, bounty-money, and allowances, or other monies payable in respect of services in Her Majesty's navy ; see Pren- dergast's case, 5 No. Cas. 92 ; Thompson's case, id. 59G ; Hill's case 1 Robert. 276 ; Milligan's case. 2 Robert. 108. X 2 310 POWERS BY will: charge or LEGACIES. are required to attest the ceremony, whicli of course is to be performed in their presence ; and to subscribe the Mill, but not to subscribe any attestation ; on the contrary, the act says, but no form of nttestation shall be necessary. As two witnesses are required, the very subscription of their names proves on the face of it that they, having no other relation to the instrument, sign as witnesses, althouoh it would still be necessary to l)rove by evidence that the solemnities were duly per- f(}rmed (o). But every testamentary paper should of course, in order to avoid all question, have a proper attestation. 12. Existing powers to appoint by will were not excepted out of the act, and are therefore subjected to the common rule. If, therefore, a power authorised an appointment by Avill attested by one witness, an aj)pointment since the statute by a will with only one witness would be void under the statute. And although the appointment be in favour of a wife or child, for M hom equity before the statute would have aided a defective appointment, yet no such relief can be afforded since the statute (p). 13. A general charge of legacies by will would not now include legacies given by an unattested codicil (q). 14. The statute of frauds only required a will, even of real estate, to be in writing, and signed by the devisor in the presence, &;c. of witnesses, and it was held that a will in the testator's handwriting com- mencing with the words : " This is the will of me, A. B.," was a sufficient signature. This was thought to be an evasion ; to prevent which the new law required (o) SeeH.Sugd. Wills, 14—20. (q) Id. 2G— 28 ; Countess Fer- (p) See H. Sugd. Wills, 21—26, raris v. Lord Hertford, 3 Curt. 468, 38, 39. in/m. SIGNATURE AT THE FOOT OR END OF WILL. 311 tlie will to be signed at the foot or end thereof. Upon this simple provision great numbers of wills have been held void upon technicalties, which it is difficult to support according to the plain meaning of the words. In order to prevent a fraudulent addition to any will, a rule has been adopted which has destroyed numerous wills open to no suspicion, and unless the law be altered that rule will continue to render inoperative hundreds of wills in times to come. 1 do not believe that the decisions to which I refer have acted upon any but genuine testamentary dispositions : they have not struck at one fraudulent will, nor is the rule upon which they proceed likely ever to do so. It would seem to be clear that the words foot or end are not synonymous, although different opinions on this point have been held even by the same Judge (?'). A signature may be fairly said to be at the end of a will although it may not be strictly at the foot of it. The act does not say at the immediate foot or end of the act, and it ought to receive a liberal interpretation, so as to u^dioid tes- tamentary dispositions whilst it represses fraud . 15. In the early cases, the words of the act were properly construed so as to support wills to which no suspicion attached, and which were signed at the end, and properly witnessed. Thus where the signature was not at the conclusion of the contents of the paper, but after the signature of the testator, and before the attestation, a^memorandum was introduced, which con- tained no disposition, but expressed the testatrix's fear that some of her property would not be as productive as she wished, the will was held to be valid, excluding the addition ; the signature was held to be sufficient, being (r) See 6 No. Cas. 2G ; 7 No. Cas. 54G, 54n. X 3 312 WHAT IS A SIGNATURE AT THE at the end of the dispositive part of the paper, after the date, and therefore at the end of the will (.?) . And of course the same decision was made where a clause appointing executors was added after the signature of the testator and of the witnesses, for the signature was at the end although not at the foot of the willC^). These cases were clearly well decided. 16. So wdiere a printed form (I) was used, and the will ended on the first side, where there w^as not room for the testator's signature and that of the witnesess, and the testator signed his name at the end of the printed form instead of at the top of the next page (following the printed directions), this w as held to be a signature at the foot or end of the will, and yet there was a considerable space in which new matter might have been introduced (u) ; and where the will, which dis- posed of the W'hole of the property, was written on the first side of a sheet of paper, and the second side was left entirely blank, and the signature of the testator, attestation clause, and subscription of the witnesses were on the third side, it was held that if the will was not signed at the foot it was signed at the end. The object of the act was to prevent a signature at the commencement being sufficient. In this case the (s) Keating V.Brooks, 4 No, Cas. (t) Howell's case, 2 Curt. 342 ; 253. The cases down to E. T. 1846, Powell's case, 4 No. Cas. 391. are collected in Edwards's very use- (u) Carver's case, 3 Curt. 29 ; ful Abridgment, 12 ; but I have of Bullock's case, 3 Curt. 750. course refen-ed to the reports. (I) The learned reporter of these cases observes (2 Robert. 115 n.), that he intentionally omits to report all questions of execution where the will is written on a printed form , as those forms have been found, in practice, to increase the difficulties in complying with the requisites of the statute ; they ought not, therefore, to be taken, he siibjnitted, as a test. FOOT OR END OF THE WILL. 313 signature could not be considered in the beginning or in the middle (x). In truth, this was no more than writing on only one side of the paper, the whole being written on one sheet. But no clause, although written before the execution, can be operative unless it precedes the signature (3/). 17. Even the introduction by a testatrix of her name in the attestation clause, where it was clearly intended as a signature, as where the words were signed " as and for the will of me, Catherine Woodington," in the presence, &c., was held to be a signature at the foot or end of the will (z), although of course an ordi- nary attestation clause, although written by the tes- tator, cannot operate as a signature (a). 18. But a signature in the margin of the will is not a compliance Avitli the statute (b) ; and where the tes- tator purposely left a blank above his signature, in order to receive additions, and which were afterwards inserted therein, it was held that the will was neither signed at the foot or end, the testator always contem- plating an addition to it (c). There is, however, no- thing in the act to prevent spaces from being left in the body of the will (d). This appears to be the true view, but it shows how weak the argument is which (x) Gore's case, 3 Cuvfc. 758 ; 2 (J) Martin's case, 3 Curt. 754, No. Cas. 479. wheretheparty mistook the printed (j/) Jones's case, 4 No. Cas. 632. form ; Wakeling's case, 1 No. Cas. Is) Woodington's case, 2 Curt. 23G. 824 ; so in the testimonium clauses, (c) Scarlett's case, 4 No. Cas. Gunning's case, 5 No. Cas. 75 ; 480. 1 Robert. 459. (d) Corneby r. Gibbons, 1 Ro- (a) Chaplyn's case, 4 No. Cas. bert. 705 ; 6No. Cas. G79; Kirby's 4G9 ; Davis's case, 4 No. Cas. 622 ; case, «J. C93. Parslow's case. 6 No. Cas. 112. X 4 314 WHAT IS A SIGNATURE AT THE objects to any space betAveen the conclusion of the will and the signature. 19. At length it was observed tliat cases had oc- curred, before the real purpose of the act had been sufficiently ascertained, in \\hicli the Court had given a construction to the statute, as far as possible, to fulfil the real intention of parties ; but tlie Court, it was said, was under the necessity of looking to the clear inten- tion of the act, and one intention was to guard against fraud (e). It was consequently held, that although the will was contained in one sheet of paper, yet as it ended at about two-thirds down the second side, and the attestation clause in the testatrix's handwriting, the signatures of the witnesses, and the signature of the testatrix at the bottom of the attestation clause, were written on the third side, leaving two or three lines at the toj) of the third side, the will was not duly signed (/). 20. This new view of the act was followed in a case which it is impossible to peruse without pain (g). An aged lady had taken great care to conform to the law. Her will was written by herself 07i one sheet of paper, and was a disposition of the whole of her property ; it was contained in the three first sides of the sheet, and terminated very near the bottom of the third side. There was an interlineation near the top of the Jirst side. The fourth page was folded in half, so as to have a vertical crease. On this fourth page (A) was written (c) See 5 No. Cas. 438, 434. (/) Willis r. Lowe, 5 No, Cas. This view appears to have l)Pen 428. suggested by the superior court ; {a) Since r. Bryer, 6 No. Cas. see Ay res r. Ayres, o No. Cas. 37-5 ; 20 ; 1 Robert. 616. No. Cas, 20*; 1 Robert. 400. (/*) See s. 21, of the 1 Vict. c. 26-. FOOT OR END OF THE WILI.. 315 " Attested to the interlineation," with the signatures of the witnesses following; and this was opposite to the mterllneat'ion in the first page, if the sheet were spread out, SO that the half of the fourth page on Avhich this was MTitten might form a quasi margin of the first page. Below those words, after an interval affording space for three or four lines (because a somewhat larger blank than proved to be necessary had been left by the testa- trix for the names of the witnesses, &c. to the inter- lineation), and on the left-hand side or division of the fourth page, was a regular attestation clause, noticing the interlineation, beneath which the witnesses signed their names, and opposite to this clause, on the right- hand side or division of the same page, appeared the signature of the testatrix (as I call her), about an inch below the signature of the last witness, affixed to the attestation of the interlineation, the signature of the testatrix being thus placed nearly in the middle of the fourth page. The will was held to be invalid. The learned Judge thought that the words " at the foot or end" of the will, according to their later construction, required that the signature should have been immediately at the conclusion of the will. According to the strict letter of the act, the signature was not at the foot or end of the will, but he was not aware that the Court had in- terpreted those words so strictly as to hold that the signature must follow immediately the last line of the will. There was plenty of room for the deceased to sign her name at the bottom of the third page, though not for this attestation clause ; and it was no excuse that she thought that the attestation clause must be near her signature. If the third side of the paper had been filled up, and the signature had been placed at the 316 WHAT IS A SIGNATURE AT THE top of the fourth side, that inight have been sufficient, but that was not so here, cL^.Uj^. ^1. This new version of the statute puts a strict construction on the words " foot or end," simply, as it seems, to destroy men's wills, instead of supporting them where they fairly follow out the directions of the act. This law ought to have neither a lax nor a strict con- struction. The will in the case of Smee v. Bryer might well be supported according to even a strict construc- tion of the words " foot or end." It cannot be denied that the signature was at the end of the will, although not inimediately at the conclusion of it. It is usual to leave some space in all writings at the bottom of the page, and where a letter sometimes ends on the third page, and the signature of the writer with the usual compliments is on the fourth, it cannot be said that the signature is not at the end of the letter, although there might be room for it at the bottom of the third page. It is sometimes difficult, particularly for an aged person, to sign at the bottom of a page. Suppose the testatrix in this case had signed at the top of the fourth page, would not that have been a compliance with the statute ? It clearly would if the will had filled up the preceding page (i). Are we in every case to measure the exact space below the last line, and to inquire what space the signature of the testator usually occupied ? Some persons cannot write their names in a confined space left for the purj)ose, particularly if they are not " ready writers," or the ceremony makes them nervous. In the case under consideration the testatrix really had a sufficient reason for signing lower («■) See Goldie'a case, 7 No. Cas. 552, infra. FOOT OR END OF THE WILL. 317 down, for she wished to render the interlineation valid, according to the directions of the act. I am not sur- prised that this old lady, and the friend whom she consulted, thought the will duly executed ; for I should have thought my own secure had it been similarly executed. Upon an appeal, however, to the Privy Council, this decision was affirmed (k), as it was the duty of the Courts to construe the enactments accord- ing to the plain rules of common sense, not to strain the simple meaning of the words, or be astute in giving special constructions on particular occasions for the purpose of evading the application of the rule, M'here its application may seem to frustrate or defeat the intention of testators in particular cases (/). Now the legislature, by the words foot or end, not preceded by the word immediately, or the like, manifestly left it open to the Courts to support a bondjide testamentary disposition where the signature was at the end or after the will, and did not precede it ; according, therefore, to the plain rules of common sense, it is confidently submitted that the will ought to have been deemed valid. Unfortunately this important decision has been treated as one from which no general rule can be extracted {m). 22. Since this decision it has been held that where at the end of the will the attestation was written like the rest of the will, and the testatrix and the witnesses signed their names beneath it, the will was duly exe- cuted. So far, therefore, is still clear, that the signa- ture is at the end of the will although it is preceded by {k) 6 No. Cas. 406. {I) 6 No. Cas. Supp. 41. (w) See 7 No. Cas. 644. 318 WHAT IS A SIGNATURE AT THE the attestation clause (n). And where the signature follows the attestation clause, but between that clause and the signatures of the witnesses there is any dispo- sitive clause, the latter, althouoh written before the execution by the testator, and his name is opposite to part of it, will be void, but will not affect the body of the will : if the clause were to form part of the will the sis-nature of the testator would not be at the foot or end(o). It will not vary the case that the attestation being written on one side of a sheet of letter paper concludes with part of the attestation clause, which is carried on to the third page, leaving the second page blank; but this was considered nothing, because the third side was continued from the first {p). A will (/) Minty's case, 7 No. Cas. 874. (^) Hearne'scase, 2Robert.ll2. («) HiU's case, 2 Robert. 114. (I) On this day (Sth November 1849) there were motions for pro- bates oi other mollis and codicils, involving precisely the same cjuestion a FOOT OR END OF THE WILL. 323 refused of a codicil Avritteii on a sheet of paper and occupying the first two pages and a part of the third page of the sheet, although the testator's signature was at the foot of each of the first and second pages, and the third page commenced with a gift of his law li- brary to his eldest son (from which I infer that the testator was a lawyer), and was followed by the attes- tation clause, after which followed the signatures of the testator and of the witnesses ; and this simply, in- credible as it may appear, because after the last gift and before the attestation clause there was the space of an inch : this clause did not immediatehi follow the disposition of the property. No weight appears to have been given to the testator's signature attached to each of the two first pages. 26. Yet in a case (b) before the same Judge a few days later than the last two cases, he admitted to probate a will signed by tlie testatrix after the attestation clause, although there was a sufficient space for her to have signed her name after the testimonium clause — nearly half an inch. The learned Judge said that if he were to say this signature was not at the foot or end of the will he should, he was afraid, be obliged to set aside all wills. He did not exactly know on what principle the Court was to act if it were not the principle of common sense ; and he could not say that, according to the principle of common sense, this signature was not at the foot or {h) Whittle's case, 7 No. Cas. 290 ; 2 Robert. 122. the above case lurnishes, save that there were greater si^aces between the final dispositive words and the att^'station clauses : Reporter's note, 2 Robert. 115. A similar note is added to a case heard on the 2Gth of the sauie month, 2 Robert, 140, 324 WHAT IS A SIGNATURE AT THE end of tlie will. When there was a large space left the Court wouhl liokl that the si<^nature was not at the foot or end ; but where, as in this ease, there was but a small space, he thought he shoukl not act up to the sjMrit of the statute if he did not hokl it to be a good signature at the foot or end. He ivas afraid he should make many icills drawn up in solicitors' offices void if lie xvere to jironounce against this. It may, no doubt, be difficult to decide in many cases, where spaces are left, which is a large space and which is a small s])ace, but it can hardly be contended that the two lines of space in Minty's case, or the inch in Hill's case, were a large space, whilst about a line's width in Whittle's case was deemed a small one. The testa- mentary dispositions of men's properties should not depend upon such thin distinctions. 27. But other decisions equally open to observation have been made. In Smith's case (c) the will dis- posed of the whole of the property, and was written on a sheet of note-paper, ending on the middle of the second side, "witness my hand and seal this 23d April 1847 ;" tlien, a blank space of about an inch intervening^ the signatures of the deceased and of the witnesses appeared as follows : — Witnesses, G. Bateman. Ann Chase. Anne (seal) Smith. The learned Judge observed, that here ivas a con- siderable space left unoccujned, for what purpose he could not understand. Where the witnesses' names were placed was of no importance, but the signature of (c) 7 No. Cas. 57G. FOOT OR END OF THE WILL. 325 the testatrix must be at the foot or end, and he did not see that it could be so considered in this case. This is indeed a forced construction of the act. The whole of the will, with the signatures, was not simply on one sheet of note-paper, but the whole was finished on the second side, so that the only possible objection was that the testatrix might have signed a little nearer the end of the will. In another like case, where the space left was nearly two inches, and the signature and seal of the deceased preceded tlie names of the witnesses, the motion was rejected (cl). In the last case the will was executed under a power of appointment in a mar- riage settlement, so that the will would have been clearly valid under the power, but was destroyed by this construction of the act of parliament. 28. The will of a son of the late Vice-Chancellor of England met with the same fate. The will (of which four parts were executed) was written by Mr. Shad- well, who was a barrister, on a sheet of note-paper, and it appears to me to have been wholly free from objection. The writing on the first page was carried down close to the bottom ; the testamentary part ended on the second side, about an inch and a quarter from the bottom of the page ; the concluding words on that page being the appointment of executors. On the third side, commencing at the top, were the words, " Signed hi/ me, in the presence of the undersigned." Immediately under this was the signature of the deceased, and then followed, "Witnessed by us, in the presence of the testator and each other, July 3d, 1848, /. M., E. Mr (e), just, I must say, as I should {d) Beadon's case, 7 No. Cas. 37G ; 2 Robert. 139, where the space is said to have been two inches eight-tenths. (e) Shadwell's case, 7 No. Cas. 377 ; 2 Robert, 140. y 2 32G WHAT IS A SIGNATURE AT THE in like circumstances have signed my own will. It materially differed from Smec v. Bryer, for the testi- moiiinm clause formed part of the will (I), and was pro[)erly carried to the third page, and the Avords signed hj^ me were entitled to weight. There was a separate attestation clause for the witnesses. But the Judge said that there was ample space for the signature of the deceased at the bottom of the disposi- tive part of the will ; he could not say that the place of the signature was at the foot or end of the will. It might be very cruel to i-efuse probate of this paper, but he was afraid, according to the doctrine held by that Court and the Sujierior Court, this will was not signed at the foot or end. There ivas 720 part of the icill immediately above the signature of the deceased (as stated by the Judicial Committee in Smee v. Bryer), and he was very sorry he could not consider the signa- turc to be at the foot or end of the will on mere Cjc parte motion. Unfortunately, these ex parte deci- sions become precedents when parties propound the rejected ])aper. 29. Yet in a later case, the decision in which it seems impossible to reconcile with the decisions in several of the cases already stated, the will was written on a sheet of foolscaj) pai)er, and occupied two pages, and a part of the third, but the disj)0sitive part was wholly on the second page, and the last line on that page consisted of a part of the testimonium clause, occupy- ing an entire line, in these words : " In witness whereof I have hereunto set " — and then there was on that page a blank space of six-tenths of an inch, and at the head (I) The testimonium clause is no part of tlie dispositive portion of the will, per Curiam ; Cotton's case, C No. Cas, 307 ; see siqva, p. 319 ; infra, p. .327- FOOT OR END OF THE WILL. 327 of the tliird \>(igo was the remainder of that clause, exteiuling to tAvo entire lines and a part of a third line, and there was then a blank space of one-inch and three-tenths, after "svhicli came an attestation clause, extending rather more than half across the page, and beneath it, at a distance of one-inch eight-tenths, but to the right, was the mark of the testatrix, and the blank space between the last line of the testimonium clause and the signature or mark of the testatrix was five inches and seYen-tenths — and the will was admitted to probate (/'). The learned Judge, after repeating the difficulty he felt in extracting any rule from the judgment in Smee v. Bryer, said, that after some re- flection he thought he should in no respect impugn that decision when he said that, cjenerallif, provided the signature of a testator is on the same sheet or page as that on which the will concludes, he meant where there is part of the will above his signature, there is, as to that point, a reasonable compliance with the statute. He could not however lay down a universal rule, much less could lie pretend to say what would in all cases constitute the conclusion of a will. Sometimes the testimonium clause might, in his opinion, form the con- clusion, sometimes the attestation clause ; though when there is a testimonium clause, the testator's signature ought to be as near to it as possible. Apj^lying that prin- ciple to the present case, he was of opinion that the testimonium clause was the conclusion of the will, and that though there was a considerable blank space between the testimonium and attestation clauses, and a still greater between the former clause and the testa- (/) White's case, 7 No. Caa. see Jlowell's case, 2 Robert. 107, 543 ; 2 Robert. 194, supra, p, o\\) ; et qiu Y 3 328 WHAT IS A SIGNATURE AT THE trix's signature, that the will was sig-ned at the foot or end. 30. This case appears to have been rightly decided, but whether it is reconcilable with Smee v. Bryer is another question. It seems difficult to reconcile the decision with that of the same Judge in Hearn's case {g), or in Shadwell's case Qi), and it is perhaps impossible to reconcile it with his decision in Hill's case (i) ; without comparing it with other cases. In Hill's case, as we have seen, although the whole will was on one sheet of paper, and each of tlie first and second pages was signed at the foot by the testator, and the third page contained a gift to the son, yet merely because there was a blank of one inch between that disposition and the attestation clause, which was followed by the signatures of the testator and the witnesses, the codicil was not admitted to probate : whereas in White's case there was no dispositive clause on the third page, and after the testimonium clause was finished on that page, there was a blank space left of one-inch and three-tenths, and the mark of the testa- trix was five inches and seven-tenths from the testimo- nium clause (which was held to be the conclusion of this will), and one inch and eight-tenths, but to the right, beneath the attestation clause. 31. However, on the same day on which White's case was decided the learned Judge, in the case of the Rev. Mr. Rowe, followed his decision in ShadweU's case (k). The will was written on two sides of a sheet of letter paper. The disposition was arranged in six {fj) Supra, pi. 25. {h) Supra, pi. 28. {i) Supra, \)\. 25. (/.) Rowe's case, 7 No. Cas. 515 ; 2 Robert. 199 [part of a report] ; and see Curtis's case, id. oiG ; the like decision. FOOT OR END OF THE WILL. 329 numbered paragraphs, the sixth containing' the appoint- ment of executors, and ending with the date, which concluded at the bottom of the second side. On the top of the third side appeared the attestation and signatures, thus : Signed, sealed, and delivered in the presence of Mary Roive. Emily Spittle. (Seal.) George Hamhly Roioe. The learned Judge said the signature was on the third side of the paper, above which there was no part of the will (I). He must lay down some rule to place these cases on the sa?ne footing. What was the real distinction between this case and Mr. Shadwell's case ? He was now inclined to hold that foot and end must be synonymous. There was room for the signature of the deceased on the second side ; not amjjle, indeed, but room enough for him to have signed (11). The rule which the Court had laid down was, that where the will is signed on a different side of the paper from that on which the will concludes, it is not a due execution of the will. If a will concludes at the very bottom of one side, and the signature of the deceased is quite at the top of the next side, it might be an exception to the rule. This rule was followed in a like but a more favourable case for probate on the same day ; for the two first pages of a sheet of paper were filled up to within about a quarter of an inch of the bottom of each page, with the will ending with the testimonium clause (I) But it is not a universal principle that the signature on the same side as that on which tlie Avill concludes is valid ; see Howell's case, 7 No. Cas. 550 ; 2 Robert. 197 ; which case qu. and consider. (II) See the statement in 2 Robert. 200. y4 330 WHAT IS A SIGNATURE AT THE and date, and at the top of the tliird page \Yas written the attestation clause and siu'natures thus: Signed by, Sec. \ Tlic mark of Tlie attestation occu- I x pied 12 hues. J Charlotte Wrightoii. A.P.K. a T. Z. Now here was no room for the signature at the bot- tom of the second page, and the attestation was pro- perly commenced at the top of the third page, so that nothing could have been interpolated ; and the mark of the testatrix was in such a position with reference to the attestation clause as had frequently been held sufficient. The only possible objection seems to have been that no part of the will was on the third page. The learned Judge said that the circumstances were strong if he could make a distinction ; but he could not make a distinction, he must adhere to the rule (Z). Nevertheless another learned Judge, about^ the same time, in another Court, decreed probate without diffi- culty in a case where the dispositive part ended on the first side of a sheet of paper, with the date within nine-tenths of an inch of the edge of the paper; so that no part of the disposition was carried over to tlie third page, which contained at the top the attestation clause, and the testatrix's name was opposite to it, un- derneath a small seal, placed a little below the first line of the attestation clause, under which signature the witnesses signed {ni). This decision was made by one of the Judicial Ommittee, by whom Smee v. Bryer {I) Wrightson's case, 7 No. Cas. 540 ; and this was followed on the same day in Froggartt's case, id. 550. («0 Goldie's case, 7 No. Cas. 552. FOOT OR END OF THE WILL. 331 was decided. It would be fruitless for the courts to endeavour to distinguish this case from several of the others in which probate has been refused. It is not creditable to the country that this branch of the law should remain in its present slate. It should be ob- served, that in several of the cases in which the will has been duly signed at the end or foot of the will, notwithstanding that there was some space left between the close of the will and the signature, the Court relied on the circumstance that the whole residue was disposed of by the will. Such a disposition is not entitled to much weight, because if the intermediate space were capable of being filled up without any attestation, legacies might be introduced in it Avhich would so far defeat the disposition of the residue. In all the cases referred to, however, there was am])le reason to sup- port the wills without relying upon this ground. 32. Where a testatrix was blind, and the will with the testimonium clause ended on the second side of a sheet of paper, leaving only a very small space, but the testatrix's signature was four inches from the top of the third page, beneath Mhich was the attestation clause with the names of the witnesses, the will was held valid. The learned Judge said, that had the tes- tatrix been able to see, he must, in accordance with the decision of the Privy Council, have rejected the motion for probate ; but he thought it was but reason- able to make a distinction when a testator is blind, and he allowed the motion (?/). It has been held at law that the will need not be read over to the blind testa- tor, although in such a case more evidence would be (w) Helling's case, 1 Robert. 763 ; see Longchauip v. Fisli, 2 New Rep. 415 ; H. Sugd. Wills, 139, 140. 332 SIGNATURE BY TESTATOR AND WITNESSES. required than the mere attestation of signature (o). But the Ecclesiastical Courts are more strict on this head, so that the will of a blind man should always be read over to him in the presence of a witness, although not necessarily in the^presence of the subscribing wit- nesses. 33. A will must be signed by the testator before the witnesses sign (p) ; but a will will not be set aside upon merely the infirm or confused recollection of the witnesses (arts obliterated. 14. Retivalof revoked will: ofwill^ first partly revoked and then loholly revoked. 15. Codicil must show an intention to revive a revoked will. 1 G. Operation of a codicil in reviving revoked wills. 17. Republication: operation of will on the objects of bounty. Z 342 RJiVOCATION BV >iARRTAGE 18. Republication after the act, jHisscs suhsc'juentlj/ acpiiied estates, 19. But cannot pa i>s what the iconh of the will do not comprise. 20. Xo convci/ancc, S^c., prevents the toil I passing the testator's interest at his death. 21. Will as to the estates comprised in it speaks as if executed im- viediatcly before testator's death. 22. Eulc of equity before the act : operation of will on remain- ing or new interest. 23. Contract for sale after the will a revocation. 24. 26. 28. 2y. 30. 81. Lessee with a contract for the fee, devise passes the fee. Leasehold .'^pecijicallj/ bc'iueath- ed, and then fee conveyed to testator, bequest void. Effect of an election to purchase under an option, after testa- tor'' s death, on the devise. Devise after a contract giving an option to purchase, car- ries the money to the devisee. Observations on Emiiss v. Smith. Sale by testator, a revocation of a devise to trustees to sell. Four modes of revocation. Will made before the act, wholly revoked by a deed operating a revocation. 1. Every will («) made by a mail or woman will be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the statute of distribu- tions. 2. But it may of course be revived by a codicil, confirming his will generally, which will be held to refer to the will existing at the death, and it must stand revived in the state in which it was at the date of the codicil, which alone gave it operation (b), 3. The act, as we have seen, provides that marriage shall not revoke the will, where it is made in exercise (a) Sec. 18; see Mavston v. Roe, 8 Adol. & Ell. 14, a case before the statute ; and see II. Sugd. Wills, 55—60. {b) Neate v. Pickard, 2 Curt. 400. NOT BY ALTERATION IN CIRCUMSTANCES. 343 of a power, when the estate appointed would not pass to the testator's heir, executor, or administrator, or next of kiu; for the only effect of annulling such a will would be not to vest the property in the new family of the testator, but to carry it over to the persons entitled in default of appointment. But it is not necessary that the property, in default of appointment, must go to the new family, if he have any, but only that it maj/ ; for if a man have a general power of appointment, with a limitation in default of appointment to himself in fee, and having- a son by his first marriage, make his will and marry again, his will will be revoked ; and yet if he die intestate, the estate will descend to the son by the first marriag'e, in exclusion of the issue bv the second. Where in default of appointment the estate is limited to a particular class of issue as purchasers, for example, to all or any of the children of a first mar- riage, the second marriage will not revoke the will ; because, although in default of appointment the heir may take, yet it will not be in the character or with the quality of heir (c). 4. But no will is to be revoked by any presumption on the ground of an alteration in circumstances (d). 5. And no will or codicil, or any part thereof, is to be revoked otherwise than as aforesaid, or by another will or codicil executed in manner before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is before required to be executed (e), or by the burning, tearing, or otherwise destroying the same, by the (c) H. Sugd. Wills, 55, £G. (e) See Brencliley v. Still, 2 Ro- (d) Sec. 19. '^evt. 1G2, z 3 344 REVOCATION BY ANOTHER WILL OR testator, or by some person in his presence and by /lis (Urcciion, Mith tlie iiitontioii of revoking the same(/) (1). 6. By the old law, a second will inconsistent with the first, as where the property was devised away to (/) Sec. 20 ; see Doe v. Harris, the 1st January 1838 ; Hobbs v. 8 Adol. & Ell. 13. This section Knight, 1 Curt. 768. jjpplies to a will executed before (I) Where there are two parts of a will, and the testator destroys but one, the question whether the other is equally destroyed in law will still depend on the old rules. Where the testator has but one part in his possession, and the duplicate is in the possession of another, the legal presumption is that the destruction of the former prevents the operation of the latter ; Seymour's case, 2 Com. 453, cited ; Burtonshaw v. Gilbert, Cowp, 54 ; Onions v. Tyrer, 1 P. Wms. 840 ; Lord .J. Thynne v. Stan- hope, 1 Add. 52. And even where both parts of a will are in the testa- tor's own possession, the destruction of one -part 2vimu facie destroys the other. But this is a weaker case than the former one. It is of course liable to be rebutted b}' evidence that there was not animus cancellandi, but it lies upon the devisee to set up the will again ; Pemberton v. Pem- berton, 13 Ves. 303, 308, 310. Even where both parts are in the testa- tor's possession, and he alters one and then destroys that which he has altered, the presumption prevails ; but this is a Aveaker case: S. C. But in all these cases the question of the testator's intention to destroy, and of the completion of the act of destruction by him, properly belongs to a jury ; Bibl) v. Thomas, 2 Blackst. 1043 ; Doe v. Pavkes, 3 Barn. & Aid. 489. Tlie statute does not enact that any act of destruction shall revoke a will. If therefore a man having two wills of different dates by him should direct the former to be destroyed, and through mistake the per- son should destroy the latter, such an act would be no revocation of the last will. Or suppose a manhaving a will consisting of two parts throws one unintentionally into the fire, where it is burnt, it would be no revo- cation of the devises contained in such part. It is the intention there- fore that must govern in such cases ; per Lord Mansfield, Cowp. 52 ; 1 P. Wms. 345, 2>er Lord Cowper ; see H. Sugd. Wills, 43, 44. But under the old law there must have been a compliance with the statute : there must therefore, for example, have been a partial burning, although the will was improperly taken off the fire by a third person. Doe v. Harris, 6 Adol. & Ell. 209 ; and see 8 Adol. & Ell. 1. And this is still the law. See further, James v. Roberts, 3 No. Cas. 309 ; Allan's case, id. 640. BY BURNING, TEARING, OR DESTROYING. 345 other persons, revoked the first will, although the second devise was void in law (g), and this rule seems still to prevail, and so do the rules laid down in the case of Onions v. Tyrer {h). 7. The words, 2vith the intention of revoking the same, were not in the statute of frauds, but were added to it by construction (I). This section of the act relates to the destruction of the instrument, to a total revocation ; a later section, which we shall presently state, refers to the manner in which its contents may be destroyed. The statute of frauds gave effect to revocations by burning, cancelling, tearing, or obliterating the will (?). The recent act is confined to burning, tearing^, or other- wise destroying the same. 8. But where a man cut out his signature from his will, the will was held to be revoked {k), for no will is valid without the signature of the testator : it is an essential part, without which a will cannot exist. There would be no doubt that if the name of the testator had been burnt or torn out, the revocation would have been as complete as if the will had been torn into twenty pieces. The entirety of the will was destroyed by the removal of the signature of the testator. And the learned Judge thought that a will might be revoked by cutting with an instrument, as well as by tearing it, {g) Roper v. RadclifFe, 8 Vin. 7G8 ; see 3 Curt. 770 ; see Wil- Abr. 141 ; 10 Mod. 233. liams v. Jones, 7 No. Cas. 106, (Ji) 1 P. Wms. 342 ; see the where the testator intended to re- preceding note : Matthews v. Ven- consider liis will, and it was found ables, 2 Bing. 13G ; Eilbeck v. at his death in his bureau, locked Wood, 1 Russ. 5G4 ; H. Sugd. up, with the first sheet containing Wills, 41. the substance of the will detached (?) 29 Car. 2, c. 3, s. 6. and missing, and held to be done (X) Hobbs V. Knight, 1 Curt. aniino revocandi. (I) This provision clears up the doubt on the statute of frauds. z4 340 CANCELLATION NOT A REVOCATION. if a coirespoiuling- cflfect be piodnccd l)y the one act as by the other. But it was not necessary, in order to brin<»- the act within the meaning of the words " other- wise destroying," that the material of the will should be destroyed ; it was sufficient if the essence of the instru- ment (not tlio material) be destroyed. Suppose a will to be written in pencil, and the words Avere removed by Indian rubber, could there be any doubt that that would be a sufficient revocation ? And the learned Judge expressed an opinion that although tlie term obliteration (/) is omitted in this section of the statute, yet if the obliteration amount to a destruction of the will, as where the testator so obliterates his name as to render it impossible to make it out, or if he erases [in like manner] anbno revocaudi the names of the wit- nesses, the will would l^e revoked. 9. It has of course been held that cancellation of a will, by striking it through witli a pen, crossing out the names of the testator and of the witnesses, is not a revocation, for when the legislature, after mentioning burning a will, and tearing a will, speaks of otherwise destroying a will, they must be understood as intending some mode of destruction, ejusdem generis, not an act which is not a destroying in the primary meaning of the word, though it may have the sense metaphorically, as being a destruction of the contents of the will ; it never could have been their intention that the can- celling of a will should be a mode of destrovino- it. The term cancelling was advisedly omitted (m). (/) See s. 21, jyo5^ destro^'iiig-, seem to mean modes of {m) Stephens v. Tafrell, 2 Curt. destruction, ejusdem generis, as ait- 458 ; see Williams v. Jones, 7 No. ting, tlirowing into water, or the Ciis. 106. " Tlie 2P)th clause gives like, and therefore to exclude can- validity to revocation only by celling.''' II. Su^d. Wills, 4(1, Both IjuriUng:, tearing, or othnrwise de- points have hcpn so decided, stroying, which words, otherwise OBLITERATIONS AND ALTERATIONS. 347 10. And no obliteration, interlineation, or . other alteration made in any will after the execution thereof {?i) is to be valid, or to have any effect, except so far as the words or effect of the Avill before such alteration shall not be apjiarent, unless such alteration shall be executed in like manner as before required for the execution of the will ; but the will, with such alteration as part thereof, is to be deemed to be duly executed if the signature of the testator and the sub- scription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a me- morandum referring to such alteration, and written at the end or some other part of tlie will (o). 11. It was at first decided that where a legacy was so eflbctually obliterated that it was not apparent, and another was substituted for it, but the alteration was not duly attested, the gift wholly failed, for the words of the statute meant not apparent on the face of the will (^?). But it was decided in the Privy Council that although the 21st section does not contain, like the 20th section, the words, " with the intention of revoking the same," yet that it must receive the same interpretation, and the old law must prevail : there- fore if substitution was intended, and not simply revo- cation, and from want of compliance with the statutory regulations, the substitution cannot take effect ; then the obliteration is not operative, and the Mill must operate as it originally stood, and evidence aliunde is admissible to prove its contents {q). (n) See 5?<^:»'«, s. 1, pi. 44. (o) Sec. 21. (p) Levock's case, 1 Curt. 90G ; (q) Brooks r. Kent, 1 No. Cas. Rippin's case, 2 Curt. 332 ; see 2 93 ; 3 Moo. P. C. C. 334 ; Rippin's Curt. 467. case, 3 Curt. 121. 348 REVIVAL OF REVOKED WILL. 12. But Avlicre the obliteration is simply Avitli a view to revocation, and the parts obliterated cannot be made apparent on the face of the will, the revocation will be absolute, and extrinsic evidence, however clear, cannot be received in order to restore the will (r). 13. In order to discover the words as they originally stood, the Court will submit the will to the examina- tion of persons accustomed to inspect writings ; and it is sufficient if they can be made out with the aid of magnifying glasses (s). 14. No will or codicil, or any part thereof, which shall be in any manner revoked, can be revived other- wise than by the re-execution thereof, or by a codicil executed in manner before required, and showing an intention to revive the same ; and when any will or codicil which shall be partly roAoked, and afterwards wholly revoked, shall be revived, such revival is not to extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown (t). 15. By the first part of this provision, where a will is revoked a codicil duly executed must show an inten- tion to revive it in order to again give it oj)eration. But where a testator having made a will in duplicate, dated 12th May 1837, one part of which was in his own possession, afterwards made a new will, dated 1 7tli October 1838, by which he revoked all other Aviils, and destroyed the part in tlie possession of Mr, Meredith, his attorney, by whom both of the wills were prepared, and subsequently he made a codicil, by which he be- queathed an annuity to his sister, and which codicil he (?) Townley v. Watson, 3 Curt. (s) Ibbetson's case, 2 Cint. 337- 761. ' (0 Sec. 22. REVIVAL OF REVOKED WILL. 349 commenced by stating that he MTote it as a codicil to his will made by Mr. Meredith, dated 12th May 1837 ; that will was held to be revived by the codicil. It was considered that the intent to revive that will was clearly shown by the great pains taken to describe it, and the Court could not act upon the mere suggestion of a mistake (w). 16. This first part of the provision, which is confined to cases where the will has been previously revoked, renders it expedient in executing a codicil to declare that the intention is to confirm or revive the will. The latter part of the provision renders it necessary in reviving a will to declare that the whole of it is intended to operate unless the testator intends to revive partially only. This portion of the enactment was, it seems, suggested by the case of Crosbie v. Macdoual (a;), but it carries the principle much further, and unless care be taken, may defeat the intention of a testator in revivino* his will. A will which is revoked by a later will or codicil, although it is left in a perfect state, cannot be set up by the destruction of the Mill or codicil by which alone it was revoked. This differs from the old law {y). As marriage will by force of the statute revoke a will, a subsequent codicil, although duly executed, will not revive it, '^ unless it show an intention to revive the same." We should bear in mind that this branch of the statute does not refer to Avills not revoked, and there- fore an unrevoked will may be republished by a codicil, which would not operate to revive a revoked will. In the former case a codicil duly executed will make the will speak as of the date of the codicil by the effect of (m) Payne v. Trappes, 1 Robert. (i) 4 Ves. Jun. GIO. 583 ; see Thomson v. Ilempenstall, (^) II. Sugtl. Wills, 62 G5 • 7 No, Cas. 141. Major v. lies, 3 Curt. 432. 350 OPERATION OF REPUBLISHED republication, unless a contrary intention appear in the latter ; a codicil will not revive a revoked will unless an intention be shown to revive it (z) . 17. It is further provided by the act (a), that every will re-executed, or republished, or revived by any codicil shall, ybr the imrposes of the act, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived. It has been observed, that the expression for the 2nirposes of this act, will give to a republished w'ill the benefits of the act, but it cannot, it should seem, prevent the com- mon operation of a republication as to making the will speak as to the objects of the gift as of the date of the codicil, so as in some cases to give interests to persons born after the esecution of the will, which without the repul)lication they would not be entitled to. This no doubt would be the case where the will is re-executed, and it seems not open to any reasonalde doubt that a codicil by the mere eftect of re]>ublication or revival will have the same operation where a contrary inten- tion does not appear. It would have required an ex- press provision to take away this operation of republi- cation or revival upon a will not revoked. The law, therefore, upon this point appears to remain unaltered. It is seldom however, it is added,' that any alteration in a will can be effected by such a republication, for the 20ords of the will are not altered, but simply con- sidered as if used at the date of the codicil. There are few cases, therefore, in which repuldication will alter the destination by the will of any property {h). But a {z) H. Sugd. Wills, Go, m. Wms. 27-1, where the intention (a) Sec. 84. was expressed ; Stead v. Berier, 2 \h) H. Siigd. Wills, GO-GO; Show. GO; Doe r. Rett, 4 Term Perkins v. Micklethwaite, 1 P. Rep. OO] . OR REVIVED WILLS. 351 will executed before the statute, giving" a legacy to a ctiikl of the testator, who died in his h'fetime, but after the conniiencement of the act (c), will by the simple act of republication by a codicil executed after the statute came into operation, entitle the legatee to the benefit of the 33d section, and consequently the lapse will be prevented (d). And a codicil duly executed will give effect to a will altered after the jjassing of the act, though the alteration was not duly attested, and though the will itself was executed before 1 838 ; that is, it would be a republication of the will in the state in which it then stood, though it could not have effect unless by the retroactive operation of the codicil (e). 18. Where a will was executed before the act passed, but by a codicil made after the act came into opera- tion the testator appointed a new trustee, and in all other respects ratified and confirmed the will, the codicil was of course held to amount to a republication, and real estate purchased by the testator after the date of the codicil was held to pass ; for the will and codicil were held to constitute a new will, as of the date of the codicil, and that codicil having been executed after the act came into operation, was to be construed by section 24 to speak as if it had been executed immedi- ately before the testator's death (/). 19. Where a testator had an estate in great part freehold, and the small residue leasehold, and before the act devised his freehold estate in words which it was held did not pass the leasehold, and made a codicil (c) See Wild r. Reynolds, 5 No. 30G ; Mower v. On; 7 Hare, 473, Cas. 1, contra if child die before infra. the act commenced. (e) -i 'No. Cas. 7 Q,2^cr Curiam. (d) Skinner v. Ogle, 4 No. Cas. (/) Doe v. Walker, 12 Mees. & 74 ; Winter v. W' inter, o Hare, Wely, oDl. 352 OPERATION OF WILL ON after the act which operated as a republication of the will, and after the codicil he purchased the fee of the leasehold, which was conveyed to him, and thereby the leasehold interest merged, it was yet held that this small estate did not pass by the will. How the case would have stood if the acquisition of the fee of the leasehold had been made before the codicil, the 1; arned Judge said it was not necessary to say ; but he held that as it was made after the codicil, the act of Parlia- ment had not changed the devolution of the property, and consequently (there being in the will a residuary gift of freeholds and leaseholds) that this leasehold, or formerly leasehold portion, passed under the general residuary gift (g). This decision of course was made on the ground that the will by its republication could only pass what by its own force, considering it to speak as at the testator's death, would pass by it : there were in fact two dispositions in the will ; one by which the newly acquired freehold, as it was held, could not pass under the words of the will, speaking as at the death ; nor would, as it was decided, that devise have passed even the leasehold interest had not that been merged ; and another disposition by which the leasehold interest would have passed, and by which the fee simple did pass ; for as the codicil had repub- lished the will, the freehold purchased after it of course passed under the general residuary devise in the will. 20. And no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or i)ersonal estate therein comprised, except (g) Erauss ». Smith, 2 Dc Gex (h) Doe v. Walker, 12 Mees. & & Sma. 722 ; sec. pi. 24, i?ifra. Wels. 591 ; see infra. TESTATOR S INTEREST AT HIS DEATH. 353 an act by whicli such will shall be revoked as aforesaid, is to prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death (i). 21 . And every will is to be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will (k) (1). 22. Equity had already partially acted upon the rule that an alienation which, although complete at law, was in reality only a charge, as in the instance of a mortgage, did not affect a prior will as far as the bene- ficial interest was still left in the testator ; but this was open to many exceptions, and where the fee was wholly conveyed to uses, although a reversion was left in the testator and was his old estate, yet the prior will was wholly revoked ; and ineffectual conveyances had the same operation. But by this act, whatever interest is left in the testator, without reference to the nature of the conveyance, will pass by the prior will : for ex- ample, if he make an appointment under a power, operating to exhaust the power, yet any interest ap- pointed to the testator will pass by the prior will (I). (i) Sec. 23. (I) See Anson v. Lee, 1 Sugd. (k) Sec. 24 ; su2)ra, pi. 17. Pow. ; H. Sugd. Wills, 51, 52. (I) This section " declares that every will shall be construed with reference to the real and personal estate comprised in it, to speak as if it had been executed immediately before the testator's death. These words, however, cannot, it is apprehended, control the obvious meaning. The construction is, that every will shall so speak with reference to any gift in it of real or personal estate, but it is obvious that very embarrassing questions may arise upon this provision ;" H. Sugd. Wills, 81. 354 WILL REVOKED BY COiNTRACT FOR SALE. This is a great improvement, and the clause operates not only on the estate or interest which the testator had Mdicn he executed or performed the conveyance or other act subsequently to his will, but also on the es- tate or interest which the testator had power to dispose of by will at the time of his death ; therefore an actual conveyance to a purchaser after the will would not prevent the will from operating on any interest in the estate which the testator might have acquired subse- quently, whether by a purchase or otherwise. And as after-purchased estates pass by a will where a con- trary intention docs not appear, no question can now arise as to the form of a conveyance to the testator after a contract (fn) ; and now, where a contract for sale after a will is rescinded or cannot be enforced, the estate will pass l)y the will, both at law and in equity {n). 23. Bv the rule before the statute, a contract for sale revoked a will in equity, although not at law; and it has been held that this rule is not altered by the statute. The point was one of much nicety (o). The devisee, therefore, in such a case, where the conveyance has not been executed, still takes the estate, but sim- ply as a trustee for the executor or next of kin who are entitled to have the contract performed for their benefit. 24. If a man having a term of years contract for the fee, and then devise the estate before the conveyance, (7)1) See Sugd. Purch. 210. Dru. & War. 99 ; 13 Sim. 569 ; («) See Sngd. Purch. 210. II. Sugd. Wills. 63 ; Siigd. Purcli. (o) Fan-ar v. Lord Winterton, 210 ; Emuss v. Smith, 2 De Gex ik .5 Beav. 1; Moor v. Raisbeck, 12 Snia, 722. Sim. 123 ; Saunders v. Cramer, 3 WHERE TERM WILL ATTEND ON DEVISR. 355 the equitable fee will pass as before tlic statute, and the term would attend it(p) (T). (2)) Sugtl. Purch. lOa, 207 ; Concise View, 12G. (1) The following- observations are exti-acted from Sugd. Purch. 11th edit. 207 — 210, and are inserted here in consequence of their bearing on the construction of the act. " Whether, if such a purchaser had, previously to the purchase, made his will under the new law, by a general l)e([uest in which the term •would have passed, the legatee will be entitled to it, although the bequest be not expressly revoked, is a point of some nicety. The rule of equity, that the term attends the inheritance immediately on the purchase of the fee, still remains ; I)ut it must bend to the provisions of the legis- lattire. Now the statute provides tliat no act done subsequently to the execution of a will of real or personal estate (except a revocation within the terms of the act, which the purchase of the inheritance would not amount to), shall prevent the operation of the will Avith respect to sucli interest as the testator shall have power to dispose of by will at the time of his death (s. 23) ; and that every will shall be construed with reference to the estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary'- intention appear hj/ the will (s. 24). " Now the rule of equity which denied to the legatee the right to the term, proceeded upon the rule that the term became attendant upon the inheritance, and no longer remained in the view of equity as a term in gross. But the statute, with few exceptions, prevents any act sub- sequently to the will from operating as an implied revocation of the gift of the estate which the testator has at his death ; and although the case we are now considering was not in the view of the legislature, yet tlie statute seetiis to save the bequest to the legatee for the term of years, because, notwithstanding the subsequent act, viz. the purchase of the inheritance, the will is still to operate with respect to the testator's interest at his death as far as that is disposed of I)y the will. But it may be urged that there is no specific gift of the estate, even for the years in the case supposed, and that it would probably be contrar}'- to the inten- tion of the testator that the term, after he has purchased the inheritance, should pass as part of his personal estate. The reply is, that by the statute the question must be. Does a contrary intention appear /{^ the trill? Now, the will onh' shows an intention to pass all the personal estate, of which this was a part, and at law still is. It may be urged, that l)y the statute the will is to be construed with reference to the real and per- sonal estate comprised in it, to speak and take efl'ect as if it had been executed immediately 1*efo!'e the death of the testator, unless a con- A A 356 ADEMPTION OF BEQUEST OF TERM, 25. Where a man bequeathed a leasehold estate specifically to trustees, to be held with a freehold estate traiy intention appear by the will ; and therefore that this will must be so construed as no contrary intention appears by it, and consequently it cannot pass the term of years, because, if a lessee for years, having contracted for the inheritance, were to make his will and simply be- queath his personal estate, the term of years would not in equity pass to the legatee. But it may be thought that the clause in question Avas intended to enlarge and not to restrict the testator's power, and that the case altogether depends upon the previous section. The term was be- queathed by the will as it stood, and the subsequent act is not to defeat its operation. " But a still more difficult case may arise. A lessee for years may make his will and give all his personal estate to A, and all his real estate to B, and afterwards contract for the fee, and then die Avithout republishing his will. At the time he made his will it would have passed the lease to A, at the time of his death it will pass the fee to B, Is the legatee still entitled to the term ? It would, perhaps, be held, that he is not, because it may be said the character of the estate has changed in equity, and as the will by the statute will operate upon the whole fee, no provision of the act would be contravened, and the will would speak and take effect as to the estate, as if it had been executed immediately' before the death of the testator ; for such a will, executed under sucli circumstances, immediately before the testator's death, would of course pass the fee to B, and the term would attend it. But this is not a clear point, and it might be considered more consistent with the statute to allow the term to pass to the legatee, and the fee (subject to the term) to the devisee. " But let us suppose that, in the case originall}^ put, there was, after the contract, a conveyance of the fee to the purchaser, or the term was assigned to attend the inheritance, in either case it seems that the legatee would not take the term ; for, in the first case, the term would have merged by its union with the fee, and no interest in the nature of per- sonal estate would have remained to be acted upon by the will : in the latter case, there would be a new destination of the term ; it would no longer be personal estate of the testator, either at law or in equit}' ; but at law would belong to the trustee, and in equity' Avould be attached to the inheritance. " If the term had been specifically bequeathed, the rule before the statute would, we have seen, have been the same. But tliat circum- stance now would make a difference ; not, however, in tlie cases last supposed ; for an actual conveyance of the fee to the testator merging the term, or an assignment of the terra to attend, would have the same BY PURCHASE OF THE FEE. 357 adjoiiiino-, which he devised in strict settlement and afterwards i)urchased the fee, which was conveyed to him, the decree declared " that the bequest of the leasehold was adeemed l^y the subsequent conveyance of the fee to the testator, and that the estate consti- tuted part of the testator's resifUiary freehold estates," and they were devised by the will to other uses(q). It is singular that the ])oint was not, according to the report, alluded to either in the argument or in the judgment, nor does the reporter's marginal abstract mention it. The decision follows the law before the new act (/*). (q) Emuss v. Smith, 2 De Gex & Sma. 722. (r) Sugd. Concise View, 126. operation, whether the term had been specifically bequeathed, or would have passed under a general bequest. " But where the term is specifically bequeathed, a contract for the fee would not now, it is conceived, defeat the bequest ; and if there were a specific bequest of the term to A, and a general devise of real estate to B, although the latter would pass the fee to B by force of the statute, notwithstanding that there was no republication after the contract, yet the bequest of the term would, it seems, remain valid, for the thing itself would still subsist, and the testator, at his death had power to dispose of it ; and a similar gift in a will executed immediately before the testator's death would have the same operation ; and in this case no contrary intention would appear by the will. Indeed, it will perhaps be contended in such a case that the legatee of the term takes the fee ; because the estate is given by the will and the statute supplies words of inheritance (s. 28), and makes the will speak as if executed imme- diately before the death ; but this could not be maintained, because in such a case the term is given to the legatee, which prevents the opera- tion of the clause in the statute vesting the fee, and a contrary intention would appear on the face of the will. " In considering these questions upon the right of a legatee to a term of years where the termor, the testator, has contracted for the fee sub- sequently^ to the will, it will now be necessary to consider also the operation of the 8th and 9th Vict. c. 112, for rendering the assignment of satisfied terms unnecessary ; tlie operation of which act is in terms confined tQ satisfied terms." A a2 358 EFFECT OF OPTION TO PURCHASE ON DEVISE. 26. Wliere an estate devised is converted into per- sonalty sul)se(juent]y to the testator's death in conse- qnence of an election to purchase by a person having a right to make such election, the estate, unless devised specifically, would not remain "with the devisee, hut the produce of it would go to the residuary legatees or next of kin, and this rule, it seems, is not altered by the statute (.y). 27. Of course where a man before the statute devised an estate by name, and ho subsequently pur- chased an adjoining estate, and by contract gave a right of pre-emption over both estates to another, with an absolute option to purchase for twelve months after the death of the then purchaser, and then the testator by a codicil, after the statute, devised the newly purchased estate by name, and the codicil o])erated as a republica- tion of the will, and after the testator's death, the person having the option obtained a decree for the sale to him, — it was held that the purchase monies of both the estates belonged to those who would have enjoyed them if the option of buying had not been exercised (t). 28. The learned Judge in deciding the case observed, that liow this case would have stood if the codicil had not amounted to a republication of the will it was not necessary for him to say, for ho was of opinion that the codicil did effect a republication of the will. Again, how this case would have stood if the contract had been an absolute or ordinary contract of sale, binding one ])arty to sell and the other to buy, and not, as it was, a contract merely in the option of the person with whom (s) Lawes t. Bennett, 1 Cox, 1(57; Towuley v. Bedwell, 14 Yes. rm ; Drant r. Vause, 1 Yoxi. & Coll. C. C. 5C0 ; 'siit-d. Puvch.203, 204, 211. (0 Emuss r. Smith, 2 De Gex & Sma. 722: MODES OF REVOCATION. 359 the testator entered into the contract, it remaining uncertain during the whole of the testator's life whether the purchase would ever take place or not, he also need not say. We may observe, that as the devise was made subsequently to the contract and gave the property by description to uses, even if the contract had been for a sale out and out, the purchase money, as it should seem, would have belonged to the devisee (u). 29. If a testator devise his estate to trustees to sell, and to pay the money to certain legatees, and after- wards sell the estate himself, this will still, as under the old law, be an ademption (.i). 30. There are now only four modes in which a Avill can be revoked, viz. ; 1. By another inconsistent will or writing' executed in the same manner as the original will ; 2. By burning or any other act of the same nature ; 3. By the disposition of the property by the testator in his lifetime ; 4. By marriage. By the 1st and 3d of these modes the will may be revoked either entirely or in part, by the 2d and last the revo- cation will be complete (j/). 31. Where a will of real estate was executed before the passing of the act, and after the act passed the testator joined in executing a deed which operated as a revocation of the will, it was held that the interest which the cestator had in the estate at the time of his death did not pass l)y his will. As the statute for the first time gave a power to dispose of all estates which a man might have at his death, and made the will as to (,'«) See Sugd. Concise View, beck, 12 Sim. 123; Sugd. Pnrch. 132. 200,211. (.f) Arnald v. Avndd, 1 Bro. C. (y) Real Property Commission- C. 401 ; KinboM v. Roadknight, ers' -Itli Report ; II. Siigd. Willy, 1 Russ. & My\. 077 ; Moon'. Rais- GO. A A 3 360 WHAT MAY BE DISPOSED OF BY WILL. the (Iis])osition of real estate speak as at the testator's death, it fblloAved that no alienation or alteration of estate ought to affect the devise of an estate so far as the testator at his death had any interest in the estate to answer it. But as to wills executed before the 1st January 1838, which had no such operation and were excluded from the act, it would have been inconsistent to give to a revoked will an operation over a new inte- rest acquired subsequently to the will, which it would not have had over the same interest if the will had remained unrevoked (z). (x) Lord Langford v. Little, 2 Jo. & Lat. G13. SECTION III. OF TlXi: PROPERTY WHICH 3IAY BE DISPOSED OF BY WILL*. AND OF THE OPERATION OF RESIDUARY AND GENERAL DEVISES. 1. 2 What estates may he disposed ofhy ivill. Will speaks as if executed im- mediateh/ before death. Contvngent interests, hopes of succession, copyholds without surrender, after - acquired property, S^-c., />«5,9. Nature of contingencies. 5. Decise by joint-tenant. 6. Quasi tenant in tail cannot devise. 7. Ejfect of ademption on specific legacy. 8. Testator's intention still to rule : decise of land of which he is now seised. 4. 9. Devise of mines, £)C. 10. Lapsed and void devises to 2)ass to residuary devisee. 11. Effect of death of a residuary devisee, 12. Operation of clause on charges on real estate. IJI. General devise includes copy- holds. 14. Wilson V. Eden. 15. General devise an execution of a general poiocr of appoint- ment. IG. Operation of statute on poioers to the survivor of several persons. Of the property which may be disposed of by will. 1 . Every person [a) may devise, bequeath, or dis- («) Sec. -3. WHAT MAY BE DISPOSED OF BY WILL. 361 pose of, by his will executed in manner after required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and Avhicb, if not so devised, bequeathed, or disposed of, would devolve upon the heir at law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or admi- nistrator ; and this power extends to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testa- tor may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disj^osed of by will if the act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will, or a surrender to the use of a will, should con- tinue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in the act, if the act had not been made ; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, custom- ary or copyhold, or of any other tenure, and whether the same shall be a corjioreal or an incorporeal heredi- tament ; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the per- son or one of the persons in whom the same respec- A A 4 362 WHAT MAY BE DISPOSED OF BY WILL. tively may buconie vcstctl, tiiid whether he may be entitled thereto under the iiistrmnent by whicli the same respectively were created, or under any disposi- tion thereof by deed or will ; and also to all rights of entry for conditions broken, and other rights of entry ; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that lie may become entitled to the same subsequently to the execution of his Avill (I). (I) By sec. 4, it is provided, tliat where any real estate of the nature of customary freeliold or tenant right, or customary or copyhold, might, by the custom of the manor of wliicli the same is holdcn, have been surrendered to the use of a will, and the testator shall not have sur- rendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be ad- mitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate tu the use of the will, or in respect of presenting, registering, or enrolling such suirender, if the same real estate had been surrendered to the use of the will of such testator : pro- vided also, that where the testator was entitled to have been admitted to such real estate, and might, if lie had been admitted thereto, have sur- rendered the same to the use of liis will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in conse(iuence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as Avould have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as Avould have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will ; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. By sect. 5, it is enacted, that wheji any real estate of the nature of customary free- CONTINGENT INTERESTS : HOPES OF SUCCESSION. 363 2. Alul, as we have already seen, every will is to be considered, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will (b). 3. And now a Mill may pass all property, legal as well as equitable, and contingent as well as vested in- (b) Sec. 24 ; Gibson v. Hale, 17 Sim. 129. hold or tenant riglit, or customary or coj^yhold, shall be disposed ofl)y will, the lord of tlie manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain tlie disposition of sucli real estate, to be entered on the court rolls of such manor or i-eputed manor ; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will ; and when any such real estate could not have been disposed of by will if the act had not been made, the same fine, heriot, dues, duties, and services sliall be paid and rendered liy the devisee as would have Ijeen due from the customary heir in case of the descent of the same real estate, and tlie lord shall as against the devisee of such estate have the same remedy for recovering and enforcing such fine, heriot, dues, duties, and services as he is now entitled to for reco- vering and enforcing the same from or against the customary heir in case of a descent. And Ijy sect. (3, it is enacted, that if no disposition by will shall be made of any estate ^«»' autre vie of a freehold nature, the same shall be chargeable in the liands of the heir, if it shall come to him by reason of special occupancy'', as assets bj^ descent, as in the case of freehold land in fee simple ; and in case there shall be no special occu- pant of any estate jnir autre vie, whether freehold or customary free- hold, tenant right, customary or copyhold, or of any other tenure, and Avhether a corporeal or incorporeal hereditament, it shall go to the execu- tor or administrator of the party that had the estate thereof l>y virtue of the grant ; and if the same shall come to the executor or admini- strator either by reason of a special occupancy or l)y virtue of the act, it shall be assets in his hands, and shall go and be applied and distri- buted in the same manner as the personal estate of the testator or intestate. 364 OF A DEVISE OF A CONTINGENT INTEREST. terests, even a lio})e of succession, if it be realized in the testator's lifetime, and also rights of entry and copyholds as well as freeholds, and whether there is any custom to devise them or not, and although the devisor shall not have surrendered the same to the use of his will, or shall not have been admitted, and estates pu)-' autre vie as well as fee simple estates. And all such estates, rights, and interests pass, although the testator became entitled to them subsequently to the execution of his will (c). And thus all questions as to the nature of and right to devise copyhold or custom- ary estates, or estates pur autre vie, or as to the effect of renewal of leases devised, have been set at rest, and a man may dispose by his will of what he may live to become entitled to, as heir at law or personal represen- tative, or devisee or legatee of a person living at the date of his will. 4. It has been observed that contingent executory or other future interests may be devised. If a con- tingency upon which a testator may become entitled to any property depend on his being alive upon the happening of a given event, the property, if devised, will pass under the 3d and 24tli sections, without refer- ence to the existence of the contingency at the date of the will. But if the contingency depend wholly upon a collateral event not connected with the testator's life, and it do not happen in his lifetime, it will then pass as a contingent interest under section 3, as it would have done prior to the statute (cZ). It is no longer necessary that tlio testator, when he devises a contin- gent interest, should be ascertained as the person or (c) Sugtl. Puich. 20G. {d) Roe V. Jones, 3 Term Rep. 88; Doe v. Tomkinson. 2 Man. & Selw. 165. joint-tenants: quasi tenants in tail. 365 one of the persons in wliom the same may become vested. But this clause can rarely operate beyond the power given to devise future property, because in the given cases the testator is required to be living upon the happening of the event provided for. A hope or chance of succession not realized in the testator's life- time will not pass by his will. The will would, how- ever, pass it if it dropped in his lifetime, although after the date of his will (e). 5. But the property of which a man is empowered to give by will is only that which if not so given would devolve upon his heir or executor. A joint-tenant still cannot devise so as to affect the rights of his co-tenant, but his will would pass the share subse- quently allotted to him in case a severance take place ; or if not, and he should be the survivor, the entire estate would pass by the will (/). A joint tenancy in copyholds may still be severed by a surrender to a will, although no such surrender is now required to give operation to a will (^). 6. But the estate of a tenant in tail, or quasi tenant in tail, does not fall within the power in the act, as the issue would take as heirs of the body and not as heirs at law, &c., and therefore the entail must be barred to give effect to the will. The will, however, may precede the barring of the estate tail. 7. It is said that a specific legacy of any sort will not be defeated by the loss of the subject of the gift if a similar subject is vested in the testator at his death, as if a testator were to give his three per cent, consols (e) II. Siigd. Wills. 186 ; and (/) H. Sugd. Wills, 79. see the exceptions in sec. 33 of the (^) Gale v. Gale, 2 Cox, 136. act. 366 SPECIFIC LEGACY : PITS OF CLAY. to one, and then sell thonj, and afterwards piircliase others, the latter would pass just as if the will had been made after they were purchased (/?). This may be correct in many cases, but it will not hold as an universal rule. In Emuss v. Smith (i) the Vice- Chancellor said, " Suppose a man to have a brown horse, and bequeath it, and then to sell it and buy another brown horse, and die, does the horse which he was possessed of at the time of his death pass?" 8. The qualification in section 24 to the general operation of the act, by the words " unless a contrary intention shall appear by the will," leaves the meaning of the testator to be collected according to the usual rules of interpretation. If, therefore, a testator con- fines his gift to the property "of which he is now seised," and manifestly uses the expression with refer- ence to the period when he makes his will, the devise will have no extended operation (A*). 9. It has been held that a devise before the statute of an estate (save and except the pits and veins of clay therein which were devised by the residuary devise thereinafter contained) to uses, and then a devise of the pits and veins of clay in and upon his lands, with the residue of his estates to different uses, passed only the pits and veins of clay which at the date of the will were being worked under a lease mentioned in the decree (/). The reporter adds a qucere, whether since the statute such a devise would pass pits or veins open at the death of the testator. As the devise was generally of the pits and veins of clay, it would {h) II. Siig.l. Wills, !!!. Davis, 1 Coll. C. C. 41(5, as to a {i) 2 De Gex & Sma. 733. failure of issue. {k) Cole V. Scott, 1(5 Sim. 250 ; (l) Brown ».AVliite\vny, 8 Hare, 1 Mac. ) Wilson v, Eden, ]1 Bear. 237. GENERAL DEVISE EXECUTES A GENERAL POWER. 369 15. A general devise of the real estate of the tes- tator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the ease may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary inten- tion shall appear by the will ; and in like manner, a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to wliicli such descrip- tion shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, unless a contrary intention shall appear by the will(^). 16. This provision, which introduces in many cases a new rule, only applies to a general j)ower of appoint- ment ; and where the testator has such a power, a general devise or bequest unexplained will pass not only his property, but also that over which he has a power. And if the testator can appoint to whom he thinks proper by will, it is unimportant that he is by the power prevented from exercising it by deed (r). Tlie law remains unaltered where the power is a special one, confined to certain objects (s), for example, the testator's children (?). And it seems doubtful whether, where such a power is limited to the survivor of several persons, it can be exercised until some person {q) Sec. 27. (0 Cloves v. Awdrv, 12 Bear, (r) H. Sugd. Wills, 81. 004. {s) 1 Sugd. Pow, 370 POWER TO SURVIVOR. fills tlic character of survivor (^O- Altliough where the power is a general one, it may, it seems, be exe- cuted by any by will ; and if the testator become tlie survivor, the power will be well executed (x). And a f'-encral power of appointment created after a will, T)ut in the testator's lifetime, may, it should seem, bo deemed to be executed by the Avill, if the will would have operated to execute the power, had it been in existence at the date of the will (f/). 17. The enactment in section G, which provides for the disposition of estates jowr auli'e vie, where not dis- posed of by will, should be kept in view, as also should the provisions as to copyholds, and the lines and fees payable in respect of them. (?0 1 Sug-a. Pow. (.r) H. Sugd. Wills, 84. (f/) Id. 80. SECTION IV. WHKRE WORDS OF LIMITATION SHALL BE SUPPLIED, AND OF THE CONSTRUCTION OF THE WORDS " DIE WITHOUT ISSUE," &C. ; OE DEVISES TO TRUSTEES, AND OF LAPSE. 1. Devise carries the fee without words of limitation. 2. To what property it extends. 3. Devises tcith words of limita- tion. 4. Operation of statute. 5. " Die toithont issue" S^-c., to he confined to a failure of issue in the lifetime or at the death. C. Unless a contrary intention ap)- f>car. 7. Cofistruciion of (he enactment. 8. Cases e.rcepted hy the proviso : prohcdile operation in variotis cases of the enactment. 0. Harris v. Davis. 10. In re O'Bcirne. 11. Devise to trustees to pass the fee unless a definite term or an estate of freehold he given ; s. 80. 12. Devise to trustees without toords of limitation to pass the fee, where; .s. PA. WHEUE THE FEE PASSES. ;7i 15 "1 ' yConstruclioii of t lie 30th section. 14.J 15. And of the Sls^ 16. Devises of estates tail not to lapse. 17. TVhat issue must he living at festator^s death to lyrevent a lapse. 18. Gift to children or other issue not to lapse. 19. What issue must be living to prevent the lapse. 20. Propertf/ in last case belongs to deceased legatee. 21. No lapse although child die be- fore will. 22. Does not extend to an appoint- ment where the property is settled in default of appoint- ment. 2.3. Particular devises failing by lapse, to go to residuary de- visee. 24. Administration of assets not altered by the act. 1. Where any real estate sliall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a con- trary intention shall appear by the will («). 2. This provision, according to the meaning- imposed upon the words " real estate " by the ist section, ex- tends to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or per- sonal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein ; and it therefore extends to personal heredita- ments : for example, an annuity granted to a man and his heirs (/*), or an annuity granted by the Crown out of the Barbadoes duties (c) \ and of course to estates («) Sec. 28. {h) Co. Litt.2a, 20 a. (r) Eavl of Stafford r. Buckle}-, 2 Vcs. 170; Countess of Iloldev- nesse v. Marquis of Carmarthen, 1 Bro. C. C. 177; Austin r. Daley, 4 Barn. \- AM. (JM. B 13 372 WHERE THE FEE PASSES. jmr autre vie, whether granted to the devisor and his heirs, or to him and his executors and administrators for the Hves, for even in the latter case the estate is freehokI(^/). 3. The act would not apply to any devise with any words of limitation, but they must operate by their own force. The enactment was a great boon, and puts an end to many refined distinctions. It is unimportant M'hether the devise is of an estate vested in the devisor, or is in exercise of a power vested in him ; and the act would equally apply to a power created by will, and would, just as in a devise of an interest, supply Avords of limitation in fee, so as to enable the appointor to confer the fee. Thus a devise by will of a house to such persons generally, or to such children of A as he shall appoint, will give to him a power over the fee; 80 a devise of a house to A to the use of such persons generally, or to such children of B as he shall appoint, will give the fee to A to serve the power, and the power will be as extensive as the gift and consequently B may appoint the fee (e). 4. The enactment applies to every devise " to any person without any v»^ords of limitation ;" and wdiere the devise is without any gift over, whether immediate or in remainder, it would operate without raising any difficulty ; for it can admit of no distinction whether the devise is to A. without any words of limitation, or to A. for life, remainder to B.j without any words of limitation. But a question has been raised whether this branch of the act would not apply to devises where, {d) See Doe v. Robinson, 8 Barn. teiwortli, 7 Ves. 445, 451, 453 ; II. & Cress. 29G; Oldliam v. Picker- Sugd. Wills, 94. iiig, Carth. .37G ; Canipl.ell v. Sands, {e) 1 Sugd. Tow. 503 ; H. Sugd. 1 Sell. & Lef. 281 ; Kipley v. Wa- Wills, 89. OPERATION OF " DIE WITHOUT ISSUE," &C. 373 after the devise without any v/ords of limitation, there are gifts over ; and its probable operation in such cases is discussed (/). Such cases, however, were clearly not within the purview of the act, and it would be dangerous to extend it to them. 5. In any devise or bequest of real or personal estate, the words " die without issue," or "die without leaving issue," or "have no issue," or any other w^ords which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the time of the death of such person, and not an inde- finite failure of his issue, unless a contrary intention shall appear by the will bj'^ reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue or otherwise ; provided that the act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age, or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue {g). 6. This important clause, w'liich was intended to ]")ut an end to the distinctions in the books where such words as " die without leaving issue " or the like were introduced in wills, provides, that the old law shall remain where an intention appears by the will contrary to the provision in the statute. And tlie act assumes that such an intention will api)ear where the person (/) 11. SugJ. Wills, 90-93. {g) Stc. 29 ; see Doe v. Evvart, 7 Adol. & Ell. GC5. B B 2 374 OPERATION OF '^ DIE WITHOUT ISSUE," whose issue is to fail has a prior estate tail [under, it shouhl seem, some prior instrument], or there shall be [no doubt in the will] a preceding- limitation to such person or his issue in tail, but not arising from any im- plication from the words " die without issue," &c. or otherwise, that is, I presume, unless it shall by the will otherwise appear. 7. To bring the latter part of this branch of the act into operation, the words as to failure of issue must, it should seem, in construing the clause, be open to either of two meanings, — either a want or failure of issue in the lifetime or at the time of the death of the person in question, or an indefinite failure of issue ; in which case the statute compels us to adojit the first of these meanings, unless a contrary intention appear by the will ; but the statute ajipears itself to have fixed the import of the words " die without issue '' or " die without leaving issue "'or" have no issue," to be either a limited or an indefinite failure of issue, unless a con- trary intention is shown by tlie will. 8. The proviso should, it seems, be road thus : the act sliall not apply to cases where such words as afore- said import if no issue described in a preceding gift [in the will] shall be born, or if there shall be no issue who shall live to attain the a^e or otherwise answer the description required for obtaining a vested estate by a preceding gift [in the will] to such issue (I). (I) Tliis section, 20, is said to be ambiguously framed ; see the obser- vations in II. Siigd. Wills, 9G— 107, where the i)robable operation of the section on various reported cases before the statute is considered. The contents of this note are extracted from that work. There appears to have been no sufficient reason for extending the new rule to real estates ; and perhaps it will not often effect the testator's intention. In the coninwR case of a devise of a real estate to one gene- OR THE LIKE. 375 9. Where leaseholds were given to several persons as tenants in common, or to their lawful heirs, " and rally, and if he die without issue over, that was a clear estate tail. But now the words " if he die without issue," will, it seems, not create an estate tail, because it may be said they import, under the general pro- vision in the statute, a failure of issue at the devisee's death, and a contrary intention will not be held to appear by the will, because "the preceding gift is not a limitation of an estate tail, without the implica- tion arising from the words, if he die without issue." It may be held that as the first devise is witliout any words of limitation, tb.e devisee will take the fee under the statute, and then the gift over will be an executory devise ; but this is directly contrary to the intent, which it may be argued otherwise appears by the will, for tlie testator's intention is not manifested l)y tlie statute, although his words are expounded by it, or a forced construction is put upon them. In a case somewhat similar, that is, a devise to A. for life, and if he die without issue over, the latter words will, it seems, mean, by the act, in case he dies without issue living at his death, although before the act they gave a clear estate tail. How is the act to oj)erate in this case ? The devisee for life cannot, under the act, take the fee, because the devise to him is with words of limitation : he cannot take an estate tail, because the statute confines the operation of the wonls "die Avithout issue" to a failure of issue living at his death, nor any interest beyond his life estate. The gift over, however, will not take effect unless there happen to be a failure of issue at the death of the tenant for life, so that the old settled law, which, by putting a rational construction on the words, did effect the intention of the testator, being now altered, that intention will be disappointed, without any assignalde cause, and an estate will, in many cases, go to the heir at law, or the residuary devisee instead of tlie devi- sees, for whom it was really intended. The shortest mode of setting this right would probably be to restore the old law. The distinction in Forth t\ Chapman (IP. Wms. GG3) was complained of, where a man gave freeliold and leasehold estates to a nephew, and if he should depart this life, and leave no issue of his body over, and it was held, treating the gifts as if separate ones, that the devisee took an estate tail in the freeholds, with a regular remainder over, and tlie absolute interest in the leaseholds, with an executory gift over, if he had no issue living at his death. Now this effected the intention of the testator, so far as the law could, or under the new statute can, give effect to it. The Avords were oiiginally held to give an estate tail in tlie freeholds, because the issue could take them, and the remainder over, if not barred, would take effect whenever the estate tail determined. The gift over is not inoperative, but may be defeated (see 36 Hans. 981}. If we try the B B 3 S76 M''HERE A SHARE LAPSES. ill catse tlit're being- no licir, tlieii the share or shares to be divided in equal parts amongst the surviving- recent statute by this case, we shall find it has no operation on the gift of the leaseholds. It does not vest them in the issue, for whom the tes- tator really intended tliom, but leaves them in the devisee himself; and it does not act upon the gift over, for the law had already restrained its operation to a failure of issue at the devisee's death, because the issue themselves could not take. But it does alter the rule as to the free- holds, which was quite right, and applies an erroneous rule to them. For where the parent, the devisee, took an estate tail, the issue would take, if he allowed the estate tail to remain unbarred, and, to defeat them, he must have barred it ; but now, if the first devisee takes a fee, they can only take by a new gift from him, or by descent. If he do not take the fee, still more violence is done to the intention, and the new rule will not even carry the estate to the remainder-man in the event really provided for, viz. a failure of issue, whenever the same shall happen. In the most favourable view, the statute applies an inappli- cable rule to a case for which the law had already properly provided. There are many cases to which the rule will not apply, although within the principle. Brouncker v. Bagot (1 Mer. 271) appears to afford one example, where a gift of real estate carrying an estate tail contrary no doulit, in one view, to the intention, a gift of leaseholds by reference to the limitations of the freeholds was held to vest the whole interest in the leaseholds in the first tenant in tail of the freeholds, although it was clear that the testator intended all the gifts to take effect in succes- sion. That case would still be decided in the same way. So in the case of Elton v. Eason(l Mer. C70, cited), where freeholds and leaseholds were devised to the testatrix's son for life, and afterwards to the heirs of his body, if any, and in default of such issue, to her grandson, it was decided that the son took the absolute interest in the leaseholds, and therefore that as to them the gift over had no operation ; and the case, if it were again to occur, must still be so decided ; for the statute does not operate where a contrary intention appears by the will, by reason of the preceding gift (as in this case) being without anj-- impli- cation arising from such words (die without issue), a limitation of an estate tail. The act would reverse the decision in Bigge v. Bensley (1 Bro. C. C. 187 ; Donn v. Penny, 1 Mer. 22). There personal estate was bequeathed by the testator to his wife, her heirs, executors, administrators and assigns for ever ; and in case of her death without issue he gave the whole over, and the gift over was held void. But now the words, " and in case of her death without issue," would mean a failure of issue at her death, and if that event happened the gift over would take effect. WHERE A SHARE LAPSES. 377 legatees," it was decided that the legatees took (juasi in tail, and one of them having died in the lifetime of the testator without issue, his share lapsed, the gift over being too remote, for the words meant an inde- finite failure of issue, and the words " surviving lega- tees " meant other legatees ; and it was held that this case did not fall within the 29tli section, which we are now considering, nor within the 24th section, which makes every will speak as to the property com- So in Doe v. Ellis (9 East, 882), a devise of land to the testator's son, his heirs and assigns for ever, but in case his son should die without issue, then over, was held to be an estate tail in the son ; whereas now, by the statute, the words, " die without issue," would mean a failure of issue at his death ; the fee, therefore, to the son would not be cut down to an estate tail, and the gift over would take effect if the son died without issue living at his death. In Byfield's case (1 Ventr. 281), a devise to A., and if he dies not liaving a son, then to remain to the heirs of the testator, was held to be an estate tail in A. ; and in Robinson v. Robinson (1 Burr. 38), a devise to A. for life, and no longer, provided he altered his name, &c., and after his decease to such son as he should have, taking the testator's name, and for default of such issue over, was also held to vest an estate tail in xi. in both cases principally upon the words introducing the gift over. The operation of the act in such cases is not very obvious. There seems reason to suppose that this provision will render many titles insecure. The real blot does not seem to have been hit. The construction of the words, " die without issue," or the like, as applicable to real estates, ought not to have been disturbed ; but if so dangerous an experiment must be made, the alteration should have been confined to leaseholds and personal estate, and might have provided that the words as to chattels and personal estate should be received in a confined sense, where an intention of the" testator to the contrary did not appear ; and that where the words of gift vested the absolute property in the legatee, and not in the issue, contrary to the intention, yet the words introducing the gift over should be construed in a confined sense, so as to carry over the property according to the intention, in case the event happened upon which it might by law be given over, viz. the failure of issue at the death of the legatee. B B 4 378 OPERATION OF 29tii section. prised in it, as it" it had been executed immediately before tlie death of the testator (//). 10. A bequest since the act to my brothers Jolni and James, equally, -with a request to John that should he die \vithout lawful issue, the property bequeathed to him should revert back to the sons of James, was held not to give to John a moiety of the property absolutely, although before the statute the words introducing the bequest over would by implication have given to John an estate tail in real estate, and there- fore the absolute interest in personalty. The Court observed, that the 29th section altered this state of the law. If the section had stopped at the words, '' and not an indefinite failure of issue," this being a gift over in case John should die without issue, which words may import either of the two constructions mentioned in the act, it is plain that they must be construed to mean a failure of issue at the time of the death of John. But then come the words, "unless a contrary intention shall appear by the will, (first) by reason of such person having a prior estate tail ; or, (secondly) of a preceding gift being without any implication arising from such words, a limitation of an estate tail to such person or issue ; or, (thirdly) otherwise." If a gift is to a man in tail, and for want of issue over, there the contrary appears, for the whole line of issue is provided for by the antecedent gift, and the words introducing the gift over must refer to the same inte- rest ; therefore in such a case the words, "for want of issue," mean an indefinite failure of issue. So if upon the true construction of the will, without making use (//) Harm v. Uaviy, 1 Coll. C. C. 41G. WHERE TRUSTEES TAKE THE FEE. 379 of any implication arising* from the words introducing the gift over, the first taker takes an estate tail, the words will equally import an indefinite failure of issue. But we are not to infer an intention from the use of the very words ; therefore, if there be a gift to one for life, and if he die without issue over, there a contrary intention does not appear ; for in such a case the sup- posed estate tail is an estate arising by implication only from the use of those very words. In the case itself before the Court, supposing that it were a devise of real estate, John would not take an estate tail unless by implication arising from those very words ; therefore the case did not fall within the exception in the act. Then as to the words " or otherwise," there Avas no- thing to show " otherwise" an intention that John should take an estate tail, for no such intention is to be collected from the will, except from the indefinite use of the words introducing the gift over, and which the act excludes from consideration (i). 1 1 . And where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor^ such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implica- tion (A-). 12. And where any real estate shall be devised to a trustee, without any express limitation of the (i) In re O'Bierne, 1 Jo. & Lat. 352. {I) Sec. 80. 380 WHERE TRUSTEES OR EXECUTORS estate to be taken by such trustee, and the bene- ficial interest in such real estate, or in the surplus rents and jnofits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testa- tor had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied (/). 13. These clauses are singularly framed, and are open to much observation (jn). Section 30 enacts that every devise of real estate (except of a presentation to a church, which exception it was not necessary to in- troduce in section 31) to a trustee or executor shall pass the fee or the whole estate of the devisor unless a ckjimte term of years absolute or determinable or an estate of freehold is thereby given expressly or by im- plication : it makes no mention of an indefinite term. So far is clear that it prevents the creation, expressly or by implication, of such an interest as that in Cordal's case (7i), where a devise to executors for the payment of debts, and until the debts were paid, with remain- ders over, was held to give the executors but a chattel, which would go to the executors of the executors. This section may not be thought to apply to cases like Doe V. Simpson (o), where trustees by construction or implication were held to take both an immediate estate of freehold for the lives of the annuitants in the (0 Sec. 31. (») 8 Rep. 90 a ; Cro. Eliz. 315 ; \m) See 11. Sugd. Wills, 119— Co. Litt. 42 a; Carter v. Barna- 135 ; 2 Jarm. Wills, 229. diston, 1 P. Wms. 509, 518. (o) 6 East, 162. TAKE THE FEE. 381 will, and a term of years in remainder sufficient for the payment of a sum in gross given by the Avill ; for although an indefinite term was thus created, yet an estate of freehold was also created. But the Courts should be astute to put a favourable construction on this provision. If it should be found necessary to bring such cases as Doe v. Simpson within its range, it might be held that the act applies where one of the two required estates is given in conjunction with the interest which it was the manifest intention to exclude. 14. This section 30 does not, like the succeeding section, sj)eak of any limitation of the estate, but generally of a devise to any trustee or executor to whom a definite term of years or an estate of freehold is not given, nor does it refer to the nature of the trusts. And the term which is to prevent the opera- tion of the statute may be absolute or determinable, and therefore it does not seem to disturb such limita- tions as those in Boraston's case (p), where the gift to trustees is by way of exception out of a gift to an infant at twenty-one, in which case the infant takes a vested estate, and the trustees take a chattel interest : for it does not seem to apply to a case where the duration of the term admits of being ascertained by reference to a date, e. g. where a devisee, if he live, will attain twenty-one {([). 15. The other section provides that trustees shall take the fee where there is no cestui que trust for life, or where there is one, but the trusts may continue {p) 3 Rep. 19 ; Mansfield v. Du- Hutchinson, 1 Bavn. & Cress. 721 ; gard, 1 Eq. Ca. Abr. 195 ; Good- 2 Bro. & Bing. 349. title v. Whitby, 1 Burr. 228 ; Doe {q) Doe v. NichoUs, 1 Bam. & V. Lea, 3 Term Rep. 41 ; Wartert?. Cress. 83G ; H. Sugd. Wills, 130. 382 WHERE TRUSTEES TAKE THE FEE. beyond liis life. This was levcllecl at such cases as Doe V. Simpson, where, departing from the simphcity of tlie law, the Courts undertook to remodel men's wills, and to introduce unusual limitations, with a view of confining the trustees to such a portion of the legal estate as would answer the precise objects of the tes- tator (r). These decisions produced great confusion in tlie law, and rendered it impossible to advise with confidence on titles depending upon such devises, although the Courts themselves appeared desirous of restoring the old rule (s). Although this section is not free from ambiguity, yet it would seem that such cases as Doe v. Simjison would, as it was intended they should, fall within its operation ; for although, in that case, for example, the devise was to tlie trus- tees, and the survivor of them, and the executors and administrators of such survivor, yet that devise, although it might well have been held to carry the fee, may be treated as a devise without any express limitation of the estate to be taken by the trustees, and so may any other devise, where, although Avords of limitation are used, the Courts, before the act, would not have treated them as amounting to an express li- mitation of the estate to be taken by the trustee, but Avould have felt themselves at liberty to cut down or modify the limitation by the supposed quantity of estate required for the execution of the trusts. Where (;') o East, 1G2 ; Heardson v. see Doe v. Edlin, 4 Adol. & Ell. Williamson, 1 Kec. 33 ; Hawker v. 582. Hawker, 3 Barn. & Adol. 337 ; 1 (s) Doe v. Willan, 2 Barn. & Sugd. Pow. 127 ; sec Doe v. Harris, Aid. 84 ; Doe v. Field, 2 Barn. & 2 Dowl. & Ry. 7('>; Glover r. Adol. mi; Don v. Walback, id. Mouckton, 8 Bing. 13; Doc t\ .554; Houston j;. Russell, G Barn. Martyn, 8 Barn. & Cress. 513 ; & Cress. 403 ; 5 Russ. 123. DEVISE OF ESTATE TAIL NOT TO LAPSE. 383 the legal estate in the trustee is measured by the life of a cestui que trust, the statute does not operate. IG. Where any person to whom any real estate shall be devised for an estate tail, or an estate in quasi tail, shall die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appear by the will {t). This enact- ment corrected a serious evil : under the old law even a codicil amounting to a republication of the will, would not operate to vest the estate in the issue (w). The issue do not take, it will be observed, by way of substitution, but in the same manner as if the devisee had survived the testator, and the estate tail by his subsequent death had descended to his issue ; but the devisee could do no act to affect the right of his issue. 1 7. It has been contended upon the true and gram- matical construction of this clause, that it requires some of the issue of the devisee who are living at Ids death, to be also living at the death of the testator in order to prevent a lapse {.v). This no doubt was not the in- tention of the framers of the act, and the Courts would probably struggle effectually to read the words, " and any such issue shall be living at the time of the death of the testator," as not being confined to the issue living- at the devisee's death, but as includino- anv issue who would be inheritable under such entail. (0 Soc. S2, (ii) Doe v. Kett, 4 Term Roi). 001. (,r) H, Sugd. Wills, 113— lir,. 384 DEVISE TO ISSUE NOT TO LAPSE. 18. And where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or mterest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any suck issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (j/). 19. This provision against lapse is confined to gifts to a child or other issue of the testator : it is not like the preceding clause open to any doubt as to the class of issue who must be living at the death of the testator in order to prevent a lapse, for it expresses what, look- ing at the object of the framer, it was no doubt in- tended to express, that some of the issue living at the death of the devisee or legatee must also be living at the testator's death (z). 20. But here, unlike the case of an estate tail, the devisee or legatee, although he die in the lifetime of the testator himself, takes the property, and may dis- pose of it by his will from his issue, who do not take by way of substitution (a). 21. Where a bequest was made after the act came into operation to a child of the testator, who died before the will was made, but after the act came into operation, it was decided that no lapse took place (Z>). (v) Sec. 33. 300 : in fact, the will was made (z) II. Sugd. Wills, 115. before the act came into operation ; la) This is fully discussed in H. then the child died, and the tes- Sugd. Wills, 1 or.— 113; Johnson tator rcijuhllshed his will : Mower r. Johnson, 8 Hare, 157. v. Orr, 7 Hare, 473; supra, s. 2, (i) Winter r. Winter, 5 Hare, pi. 17. POWER : RESIDUE : ASSETS. 385 22. But where the testator has but a power of appointment, and in default of appointment the pro- perty is settled on others, a gift by him of this property to a child or other of his issue, although authorised by his power, will be defeated, and the property will go as in default of appointment, if the legatee die in his lifetime, for such a case does not fall within the pro- visions of the act (c), 23. We have before referred to the provision in the act by which gifts by will of real estate, or any interest therein, which fail by reason of the death of the devisee in the lifetime of the testator, are included in any residuary devise contained in the will(6^). 24. This chapter may be closed with the observation that the act does not interfere Avith the mode of admi- nistering assets ; therefore, where jmrt of the purchase money of an estate was borrowed and was a lien on the estate, it was held that the devisee was entitled to the aid of the personal estate, and of a descended real estate, to pay off the charge ; but of course that he could not go against any real estate particularly given which was not subject to the lien (e). (c) Griffiths v. Gale, 12 Sim. & Sma. 722 : there was no de- 354. scended estate, but there was real (d) Sec. 25 of the act; supra, estate devised with the residue, be- s. 3, pi. 10. sides devises of particular estates (c) Emuss V. Smith, 2 De Gex to others. [ 386 ] CHAPTER YIII. OF TRUSTEES AND MORTGAGEES: 13 & 14 ViCT. C. 60. 1. Repeal of f Winer acts : actsun- repealecl. I. Of lunatic and infant trus- tees or mortgagees. 2. Power of Lord Chancellor over trust and mortgage estates of lunatic : contingent rights : stock : choses in action. 3. Lile jwwcr in regard to infants. 4t. Infants money to he paid into Court. II. Of trustees out of juris- diction or the like, 5. Power of Court where trustee out of jurisdiction or cannot he found : contingent rights. G. Or uncertain which of several trustees survived. 7. Or not known whether last- known trustee is living or dead. 8. Or trustee has died intestate without an heir, or his heir or devisee shall not he knoivn. 9. Contingent rights in unhorn per- sons maj/ be released. 10. Poioer ivhere trustee refuses, S;c., to convey. 11. After decree for sale for dehts of a deceased 2^<^>'son, every person claiming under him a tnistee. 19 (Powers under 1 Will. 4, c. 47, I not repealed : how surj)lns [ money to go. Extension of last act hy 11 6^ 12 Vict. c. 87. . After decree for a conveyance, S^-c, 2>arties may he declared trustees. } Provisions in regard to stock and choses in action. Where decree may he made in absence of trustee. III. As to mortgages. Mortgagee out of possession dead, and money paid to per- son entitled, cases in ivhich Courtmaymake vesting order, or person may he appointed to convey. How copyholds are to he as- sured. Allegations in order made con- clusive evidence. Provision in 1 Will. 4, c. 60, as to mortgages. . Escheat, SjC, saved hy 4 t^ 5 Will. 4, c. 23 ; mistake in that act. , Provision in 1 Sj 2 Vict. c. G9, as to mortgages : 2>i'Oviso in act. Operatio7i of new act on infant heir of mortgagee. OF TRUSTEES AND MORTGAGEES. 387 20. Mortgagee out of jurisdiction not affected. IV. As to escheats of trust estates or mortgages. 27. No escheat or forfeiture to af- fect estate oftrttstee or mort- gagee except as to beneficial interest. Operation of 1 cV 2 Vict. c. 69, 0)1 mortgages. Whether new act supplies in all cases the want of an heir of a mortgagee. Old provisions as to escheat, c^c, repealed: new ones 2>ros2)ec- tive only. 7 4' 8 Vict. c. 79, s. 9, repealed. V. Appointment of nexo trus- tees. Power in Court to appoint neio trustees. Extended to charities. Parties maj/ proceed by claim. (Observations on thcpolici/ of the <| act as regards this heady and y of its operation. . To what extent trustees may be appointed binder 2)owcrs. New trustees may be appointed after the death of both, al- though thepower contemjjlates concurrence of survivor. So a vacancy may be supplied on the removal of a surviving trustee. , A continuing trustee may exer- cise a power given to the sur- vivor. , Where the p)ower is annexed to the office. 28. 29. SO. 31. 32. 38. 34. 35. 30. 37. 38. 39, 40. 41, 42, 43 44. Executors loho act may exercise a power to executors. 45. Common 2>owcr in loill does not apply to the death of a trus- tee in testator'' s lifetime : sed qu. 40. Several classes of trustees : power confined to some. 47. Banlniptcy of trustee an unfit- ness. 48. Marriage articles : by whom trustees to be ap2)ointed. 49. Where the trustee may make his devisees, trustees. 50. One trustee cannot be ajypointed, contrary to intent, in the place of two. 51. More than one may he appointed in the place of one ; semble. 52. Sandys v. Nugee ; D^Almaine V. Anderson accordingly. 53. Ex parte Dai'is contr^, hit a later ease accordingly. 54. Co7irt of Chancery umdd ap- point a larger number of trustees if proper. 55. Court in appointing new trustees cannot give tliem a power to appoint their successors. 50. Power in a party not disre- garded by Cotirt. VI. As to course ofj^rocediire. 57. Who may apply under the act. 58. Powers of the Masters and of the Court. 59. Order may he postponed fill right declared in suit. CO. Powers to Lord Chancellor and Court of Chancery of Ire- land. 1. The act. of the 13 & 14 Vict. c. 60, repeals the acts of 1 AVill. 4, c. (50, the 4 & 5 Will. 4, c. 23, and c c 388 LUNATIC AND INFANT the 1 Sc 2 Vict. c. 69 (a) ; but it does not repeal the ] Will. 4, c. 47, the 2 & 3 Vict. c. 60, or the 1 1 & 12 Vict. c. 87, although some of their provisions are of tlie like nature as those in the new law, nor indeed are the last-mentioned three statutes referred to by the new statute (I). The relief afforded by the act extends, 1. To lunatic and infant trustees and mortgagees; 2. To trustees generally, out of the jurisdiction — or, the like; 3. To trustees under devises for payment of debts or parties to suits ; 4. To mortgagees in certain cases ; 5. To the appointment of new trustees ; and lastly, to escheats in the cases of trustees or mort- gagees. And of each of these in its order, altlioiigh not precisely in that adopted in the statute. 1. Of lunatic and infant trustees or mortgagees. 2. Where any lunatic or person of unsound mind (II) shall be seised or possessed of any lands upon any trust (III), or by way of mortgage, the Lord Chancellor (a) Sec. 1. As it will be neces- a copy of it is inserted in the Ap- sary to constantly refer to this act, pendix. (I) Since writing this chapter, I have seen Mr. Headlam's publica- tion of the act, Avith notes, which I shall notice where necessary. The learned franier of the act states, that the above-mentioned acts were not repealed, because, although the new act gives a simpler j^rocess for several of the objects provided for by those statutes, j^et there seemed no substantial objection to an option being left of proceeding either under tlie new act or under those statutes : Headl. Trustee Act, 1850, p. 2, n. (II) The words, " person of unsound mind," were not contained in the 3d section of 1 Will. 4, c. 60 ; but the case of a person not found lunatic by inquisition was provided for to a certain extent by the 5th section. As by this act (s. 52) a general ])ower is given to the Lord Chan- cellor to postpone making an order until a commission has issued, this restraint upon his discretion was omitted, Headl. 12, 15. (III) The word "trust" shall not mean the duties incident to an estate conveyed by way of mortgage, s. 2 : the doubts which had arisen on the old act had been removed by the 1 & 2 Vict. c. 29, but to avoid these doubts this clause was introduced : Headl. p. 8, u. TRUSTEES AND MORTGAGEES. 389 may make aii order that such lands be vested in such person or persons in such manner and for «uch an estate as he shall direct (^). In cases of difficulty it will be necessary to look at section 2 for the interpre- tation of the words, " lunatic ;'' — " person of unsound mind ; " — " seised ; " — " possessed ; " — " lands ; " — " trust ; "— " mortgage ; "— " Lord Chancellor ; " (I). And a like power is given to release a contingent right, or to dispose of the same, as the Chancellor shall direct ; and section 2 explains the words " contingent right" (c). And full jiowers are given to the Lord Chancellor over any stock or chose in action {d), vested solely or jointly, with others in a lunatic or person of unsound mind upon any trust or by way of mortgage (e). And these powers extend to the case of stock standing in the name of any deceased person whose personal repre- sentative is a lunatic or person of unsound mind, or the case of any chose in action vested in any lunatic or person of unsound mind as the personal representative of a deceased person {f) ; and the money to which any person of unsound mind is entitled payable in discharge of any land, stock, or chose in action, is to be paid into Court in the manner directed by the act (^). And the interpretation clause explains the meaning of the word " stock " in this clause. But the Lord Chancellor, in {b) Sec. 3. tates and rights which are made (c) Sec. 4. This section is en- disposable by 8 & 9 Vict. c. 106 : tirely new. Tlie definition, it is Headl. 13, 14. said, of "contingent right," was {d) Stock now embraces such as. adopted from 8 & 9 Vict. c. 106, are transferable by deed : the words s. 6, the object being to include in chose in action were not in the the act all the modifications of es- former act : Head). 5, 0. (e) Sec. 5. (/) Sec. 6. {g) Sec. 48. (I) This observation applies to every other section where words are introduced which are explained in section 2, c c 2 390 WHERE TRUSTEES ARE OUT OF THE the case of a person of unsound mind, may direct tliat a conniiission of lunacy shall issue concerning such person, and postpone making any order upon the peti- tion before him until a return shall have been made to such commission (//). 3. In regard to infants — where any infant is seised or possessed of any lands upon any trust or by way of mortgage, the Court of Chancery is empowered to make an order vesting such lands in such person or persons, in such manner and for such estate as the Court shall direct (i). And this power is extended to contingent rights (k). 4. And the money to which any infant is entitled, pa3'^able in discharge of any lands, stock, or chose in action, is to be paid into Court in the manner directed by the act (/). II. Of trustees out of the jurisdiction, or the like. 5. The act gives power to the Court to make orders for vesting lands as it shall direct where a trustee is oui of t/ie Jurisdiction, or cannot he found {iii) (I). And the poM'er extends to cases where there is a joint seisin or possession {ii) (II). And it further extends to con- tingent rights in both cases (o). G. And where there shall have been two or more persons jointly seised or possessed of any lands upon (A) Sec. 52. («) Sec. 7. {I) Sec. 8. (/) Sec. 48. {m) Sec. 9. {n) Sec. 10. (o) Sections 11, 12. (I ) It is observed that the words ** or cannot be found," are new, and will be found of considerable practical convenience. Care mil how- ever, it is added, be required on the part of the Jiufye or Master toho has to make the necessary inquiries, to ascertain that sufficient exertions have hccn made to find where the absent trustee is : Ileadl. 17. (II) In this section the words, " upon any trust," are omitted, but the}' clearly would be supplied from the context. JURISDICTION, OR THE LIKE. 391 any trust, and it shall be uncertain lohich of such trustees luas the siirmvory the Court has like power to make an order vesting such lands as it shall direct (j»). 7. And where any one or more person or persons shall have been seised or possessed of any lands upon any trust, and it shall 7iot be known as to the trustee last known to have been seised or possessed whether he he living or dead, the Court has like power to make an order vesting- such lands as it shall direct {q). 8. And when any person seised of any land upon any trust shall have died intestate as to such lands, without an heir or shall have died and it shall not be known who was his heir or devisee^ the Court has like power to vest such lands as it shall direct (r). 9. And when any lands are subject to a contingent right in an unborn person or class of unborn persons who upon coming into existence would become seised or possessed of such lands upon any trust, the Court has full power to release or vest such contingent right or the estate as it shall think fit (5) (I). {p) See. 13. This section cou- (-/) Sec. 14. tains the word "possessed," and ,,y^ g^^ j^^ therefore applies to leaseholds, which s. 8 of 1 AVill. 4, c. GO, did (s) Sec. 16. This is new ; but not : it was purposely omitted in it is justified by reference to the the latter act, in order not to inter- 17th section of 1 "Will. 4, c. 60, and fere with the jurisdiction of the the 1 Will. 4, c. 47 : Ileadl. 22. Ecclesiastical Court : Headl. 19. (I) As the 1 Will. 4, c. 47, has not been repealed, it will still be lawful for the Court to make orders under it. The 2Dth section of this act however, it is observed, expressly provides for cases where sales of estates are directed by the Court for the purpose of paying the debts of deceased persons, so that the power given by the IGth section alone will be available, in addition to the power conferred by the 1 Will. 4^ c. 47 : Headl. 20. c c 3 392 TRUSTEE AFTER DECREE FOR SALE 10. The power of the Court is equally extended to cases where a trustee solely or jointly seised or pos- sessed shall, after demand by a person entitled or liis agent, have stated in writing that he will not convey, Sec. the same, or shall neglect or refuse to convey, Sec, for twenty-eight days next after a proper deed shall have been tendered to him by any person entitled or his agent {t). And contingent rights in like cases are subjected to the same power (u). 1 1 . And where a decree shall have been made by any court of equity directing the sale of any lands for the payment of the debts of a deceased person, everi/ person seised or possessed of such lands or entitled to a contingent right therein as heir, or under the will of such deceased debtor, shall hold it upon a trust within the meaning of the act, and the Court may wholly discharge the contingent right under the will, of any unborn person (x). 12. We may observe that the 1 Will. 4, c. 47, which is not repealed by the 13 & 14 Vict., gave power to the Court in suits for payment of debts of a deceased person to compel infant heirs or devisees to execute a conveyance to which legal validity was given (i/). A conveyance under this section was held to pass only such interest as the infant of full age could have trans- ferred (z). It was held to extend to the case of the heir of a devisee (a), and it was held that infant tenants in tail by devise might be ordered to convey under this (0 Sec. 17. (?0 Sec. 18. (x) Sec. 29, (z) Heming v. Archer, 8 Beav. (^) Sec. 11 applies to a prior de- 294. cree. Chapman v. Tennant, 2 Russ. («) Brook v. Smith, 2 Russ. & & Myl. 74. Myl. 73. FOR PAYMENT OF DEBTS OF DECEASED PERSON. 393 section {/j) (I). And where the devise was to trustees in fee to pay the testator's debts, and at a given time to convey the estate^ subject to his debts, to his son and his issue in strict settlement, and tlie trustees conveyed accordingly, under which conveyance a grandson was tenant in tail in remainder, it was held that he could convey under the act, for it was in effect a devise of estates by circuity (c). Where the estate was devised in settlement, the Court was empowered by the statute of William to direct the tenant for life or other person having a limited interest, or the first executory devisee thereof, to convey, and legal validity was given to such conveyance (d). And it was held that a tenant for life alone might convey the fee under this provision, although, under the 11th section, a con- veyance might be compelled from the persons entitled after the estate for life(^). And this act was held to extend to copyholds, although they were not liable to debts when the act passed (J^). These provisions were by a subsequent act (g) extended to authorise courts of equity to direct mortgages as well as sales to be made of the estates of such infant heirs or devisees, and also of estates so devised in settlements as aforesaid, and (b) Penny V. Pretor, 9 Sim. 135. (e) Walkers. Aston, 9 Sim. 87. (c) Cheese v. Cheese, 15 L. J., (/) Branch v. Browne, 2 De Gex N. S., 28. & Sma. 299. {d) Sec. 12. ((7) 2 & 3 Vict. c. 60, s. 1. (I) This section 11 was held not to take away the right of an infant to a day to show cause against a decree of foreclosure, Price v. Carver, 3 Myl. & Cra. 157 ; see Jones v. Ham, 3 Ir. Eq. Rep. 05. Where the estate of an infant was sold under a decree, the direction for the sale was held to have the effect of constituting him a trustee within the meaning of 1 Will. 4, c. GO, s. G, 18 ; in re Blackwell, 7 Jur. 9. See post, s. 30, and note. C C 4 394 TRUSTEE AFTER DECREE FOR SPEC. PERP. to authorise such sales and mortgages to be made in cases wlierc such tenant for life, or other person having a Hniited interest or such first executory devise, is an infant. This important provision appears to be still in full operation. 13. And by the last-mentioned act it is provided that the surplus monies arising from any sale or mort- gage under that or the preceding act shall descend or devolve in the same manner as the estate itself would have done (A). 14. By a later act (i), in cases in other respects falling within the provision of the 1 Will. 4, c. 47, before referred to, where the devise is in settlement, that provision is extended to any case in which any estate of any deceased person is by descent, or other- wise than by devise, vested in the heir or co-heirs of such person, subject to an executory devise over, in favour of a person or persons not existing or not ascertained. This enactment removed the difficulty raised in the case of Homing v. Archer {k). 15. But to return to the new act of Victoria: After a decree, whether for specific performance of a contract for lands, or for partition or exchange, or generally, Avhen any decree shall be made for the conveyance or assignment of any lands in cases of election, or other- wise, the Court may declare any of the parties to the suit trustees within the act ; and this is extended to nnbom persons who might claim under any party to the suit, or under the will or voluntary settlement of any person deceased who was a party to the con- {h) 2 & 3 Vict. c. GO, s. 2. {k) 7 Beav. 515 ; 8 Beav. 204 ; (0 11 & 12 Vict. c. 87. 9 Beav. 306. PARTITION, EXCHANGE, OR OTHERWISE. 395 tract or transactions concerning Avhicli sucli decree is made (/) (I). 16. In regard to stock and choses in action, tlie act contains full provisions for giving effect to any trust where any person is jointly entitled upon any trust Avitli any person out of the jurisdiction., or who cannot be Jviind^ or it is uncertain ivhethcr he be living or dead (m), or where any sole trustee neglects or refuses to transfer or to receive the dividends, or sue for them for twenty -eight days (ji), or where one of the trustees is guilty of a like neglect or refusal (o). And these provisions are further extended to the cases where any stock is standing in the name of a deceased j)erson, and his personal representative is out of the jurisdiction, or cannot be found, or it shall be uncertain whether he be living or dead, or he shall make such neglect or re- fusal for twenty-eight days as before mentioned (p). 17. And full legal effect is given to any order vesting the right to any stock in any person appointed by the Lord Chancellor or the Court of Chancery (ears that such was the view of the framer of tlie act, as pro- vision is made (as it Avas in the 1 Will. 4, c. COj for the payment of any sum of money due to an infant upon a mortgnge ; and in the case of lunatics, the committee of the lunatic's estate is a party to the proceed- ings (see s. 3, 7, and 48) : Headl, 26, n. 402 ESCHEAT OF MORTGAGES. or lier representative (/) ; but this is not to extend to any benelicial interest (?/^). 28. The 1 k 2 Vict. c. 69, enlarged the powers of the I Will. 4, c. GO, and the 4 Sc .5 Will. 4, c. 23, as to mortgages, but properly confined the relief there given to cases where the mortgagee had died without having been in possession, and the money due should have been or should be paid to his executor or admi- nistrator ; for it was not thought safe in other cases of an absent heir of a mortgagee or the like to give a more extensive power to the Court. The previous act of 4 & 5 Will. 4, c. 23, provided that there should be no escheat or forfeiture in the case of a trust or mort- gage for want of an heir of a trustee or mortgagee, or by reason of the attainder or conviction for any offence of such trustee or mortgagee ; but this was not to pre- vent the escheat or forfeiture of any beneficial interest in such trustee or mortgagee. The proviso in section 3 of the 1 &: 2 Vict. c. 69, enacted, as we have seen, that the two acts of 1 Will. 4, c. GO, and 4 & .5 Will. 4, c. 23, or either of them, should not be construed to ex- tend to any case of any person dying seised of any land by way of mortgage, other than such as were therein- before expressly provided for. This has already been explained. 29. Now the act of 13 & 14 Vict. e. 60, repeals all the three acts, and in substance re-enacts, in section 19, the provisions of the 1 & 2 Vict. c. 69, but with the additions already noticed. And the new statute pro- vides that no lands, &c. vested in any person upon any trust, or by way of mortgage, shall escheat or be for- feited by reason of the attainder or conviction for any (/) Sec. 40. (m) Sec. 47. ESCHEAT OF MORTGAGES. 403 offence of such trustee or mortg-agee ; but this, as before, was not to ])revent the escheat or forfeiture of any beneficial interest (n). 30. It was observed in a note to the last edition of the writer's work on Purchases, that the cases of escheat would require to l)e re-considered with refer- ence to the 4 & 5 Will. 4, c. 23, and the provisions in the 2 & 3 Vict. c. 69, s. 1, coupled with the proviso. 31. The new act does not repeat the escheat and forfeiture clauses in the 4 & .5 Will. 4, c. 23, but limits the new remedy to the cases of escheat and forfeiture by reason of the attainder or conviction, of any such trustee or mortgagee. Tlie part of the former act ex- tending the relief to the cases where the escheat was in consequence of tlie trustee or mortgagee dying with- out an heir was probably omitted in the recent act, be- cause the former sections were supposed, in both the case of a trustee and the case of a mortgagee, to pro- vide a remedy where he died without an heir. This certainly is so as to a trustee, but it does not appear to be so universally as to a mortgagee. The 19th section of the new act was, following the provision in the 1 & 2 Vict. c. 09, confined to cases where the mortgagee had not been in possession, &c. ; and in sucli cases it does provide for the case of a mortgagee dying without an heir, and that, so far, is quite correct. But it does not provide generally, like the 4 & 5 Will. 4, c. 23 (I), for the case of escheats for the want of an heir of a morto-ao-ee, and it would therefore seem that some diffi- culty may arise as to an escheat of a mortgage for want («) Sec. 4G. (I) In a note to s. 40, it is said that " this cUiuse, and the following one, merely re-enact the 3d and .5th sections of i & 5 "Will. 4, c. 28." Headl. 50. D D 404 APPOINTMENT OF NEW TRUSTEES. of an heir of a mortgagee, where the case does not fall ^nthin the 19th section. The writer is not sure that the proviso in the 2 & 3 Vict. c. G9, for which he is responsible, did not mislead the framer of the 13 & 14 Vict. c. 60, 32. It should be kept in view that the old provisions as to escheat or forfeitiu'e are repealed, and that the new ones are prospective only, and that the pro- vision in 4 & 5 Will. 4, c. 23, which provided for past escheats and forfeitures of trust estates, was repealed, but not re-enacted by the later act. So much confu- sion had arisen in regard to the former acts, that it would not be a matter of surprise if difficulties were still found to exist upon this important subject. 33. The 7 & 8 Vict. c. 79, s. 9, enabled an executor or administrator of a morto-agee entitled to the mort- gage money upon redemption, to reconvey the legal estate where possession had not been taken by virtue of the mortgage and no action or suit was depending ; but this provision has been properly repealed as from the 1st October 1845 (o). V. As to the appointment of new trustees. 34. To return to the provisions of the new act : Whenever it is expedient to appoint a new trustee or new trustees, and it shall be found ineocpedient, d'lfficult, or impracticable so to do xvithout the assistance of the Court of Chancery, the Court may make an order ap- pointing a new trustee or new trustees, eitlier in substi- tution or in addition to any existing (1) trustee or trustees (/?), and they are to have the same powers as (o) 8 & 9 Vict. c. lOG, s. 1 . {p) Sec. 32. (I) This lias been held, I am tohl, to incliule a disclaiming trustee ; and also, it seems, a deceased trustee. charities: proceedings by claim. 405 if appointed by decree in a suit {q) ; and the Court can by orders vest the estate accordingly (r), and in like manner give effect to an appointment over stock {s). But no former or continuing trustee is to be discharged, further than an appointment of new trustees under any power would have discharged him [f). 35. The Lord Chancellor and the Court of Chancery are severally authorised to exercise the powers by the act conferred for the purpose of vesting any property in the trustees of any charity (1) or society over which charity or society the Court would have jurisdiction, upon suit duly instituted, whether such trustees shall have been duly appointed by any power contained in any deed or instrument, or by the decree of the Court, or by order made upon a petition to the Court under any statute authorising the Court to make an order to that effect in a summary way (if). 36. By the general orders of the Court of Chancery made in April 1850, which was about four months before the act of the 13 & 14 Vict, passed, and which orders were made under powers conferred by the legis- lature, a claim may be made where a person is entitled to have a new trustee appointed in a case where there is no power in the instrument creating the trusts to appoint new trustees, or where the power cannot be exercised and he seeks to appoint a new trustee. Tn Ireland, the act of the 13 & 14 Vict. c. 89, provides that parties may proceed by petition instead of bill, and that any such petition with respect to the appoint- (-7) Sec. 33. {r) Sec. 34. {s) Sec. 35. {t) Sec. 36. {u) Sec. 45. The provision repealed was s. 23 of the 1 "Will. 4, c. GO. (I) A power of appointing new trustees for a charity receives a liberal construction ; see 2 Sugd. Pow. 508. DD 2 40G OF THE EXERCISE BY THE COURT OF ment of new trustees under any deed, will, or other instrument, may by order in a summary way, and with- out notice, unless the Court see fit to direct any notice to be oiven, be referred to the Master, either with or without any special directions. And the Master is to proceed as directed by the act {^). 37. There is no application to the Court of Chan- cery which requires more strictly watching than one to appoint new trustees. It constantly happens that the parties beneficially interested desire trustees to com- mit a breach of trust, e. g. to lend the money to the husband, with the wife's consent, and almost always upon personal or insufficient security. It is not pos- sible to couYince such j^ersons that the trustees are not depriving them of their just control over their own property upon merely technical grounds. luYariably upon the refusal of the trustees, the next application to them is to transfer the property to new trustees. Where they are well advised, trustees refuse to do so; because they know that the object is to carry into effect the arrangement which they considered would be a breach of trust. The writer, in order to guard against these practices being carried into execution under the sanction of the Court, proceeded with caution in framing the 1 Will. 4, c. GO, and confined the sum- mary jurisdiction to cases of disabilities where the recent creation or declaration of the trust or other circumstances might render it safe and expedient to direct, by an order upon petition, a transfer to a new trustee, without com])clling the parties to file a bill, although til ere was no poAver in any deed or instru- ment to appoint new trustees (?/). And this provision {x) Sections 15—20, (y) 1 Will. A, c. GO, s. 22. THE POWER TO APPOINT TRUSTEES. 407 was ca,rried into execHtiou by the Courts with great caution (z) (l). 38. There can hardly be any case, whether there be a power to appoint new trustees or not, and although all parties are competent to appoint new trustees without the assistance of the Court, which may not be brought within the new act, for it can seldom be difficult to prove that it is inexpedient, difficult, or im])racticable to appoint new trustees without the assistance of the Court. And as the parties may go in the first instance before the Master, and a conveyance can in effect be made by the order itself, without the concurrence of the old or continuing trustees, this power will surely be abused, although, the Court act with caution, and watch the proceedings (z) See Jeminett ou the Statute, 2cl edit. 174. (I) The learned framer of the new act observes that the clause has been purposely drawn perfectly general, so that there will be no re- straint upon the Court except its own discretion in the appointment of new trustees upon summary apjdications. And adverting to the vesting clauses, and that the expense of the appointment of a new trustee under the act ought to be very trifling, lie anticipates that in a very great num- ber of cases the application will be under the act ; and if the clauses are found practically to work well, that there will no longer be a necessity for the insertion in deeds of jjowers for the appointment of new trustees, Headl. p. 46, n. ; and see ib. 55, n. This shows the extent to which it is proposed to carry this general provision. But it is not the proper province of courts of equity to act where the parties can perform the act required without their aid. And it does not seem desirable to in- crease the jurisdiction of the courts of equity, and add unnecessarily to their labours, whilst complaints are made of the delays in those courts : nor is there any reason to sujipose that the expense in these cases will be trifling: neither does it seem politic to enable parties, without cause, to evade the stamp duties, whilst others, in like cases not before the courts, pay them, although the fiscal laws ought not to be allowed to stand in the way of a real improvement. It would be improper to omit in wills or settlements the usual power of appointing new trustees. 1) u3 408 or- THE CONSTRUCTION OF POWERS vio-ihiiitly. If the references, or the orders confirming the Master's certificate, shouhl pass as matters of course — as similar orders have too often been per- mitted to do — families will no doubt in many instances be deprived by fraud and management of the provision intended for them. It is manifestly the duty of the Judge who makes the order to satisfy himself, not by the assertion of counsel nor by the Master's report, but by his own perusal of the papers, that the case is a proper one in which to make the order sought. 39. As trustees may of course still be appointed under powers, and the Court ought never to interfere under the statute when there is such a power, without a manifest necessity, it may now be useful to state the construction put in various cases on powers to appoint new trustees, and the extent of the power of the Court, independently of the statute. The usual frame of such a power, and the manner in which it should be executed, is considered elsewhere (a). 40. A power in a settlement of real estates was given in case of the death of any or either of the trus- tees for the husband and wife, or the survivor, with the consent of the surviving co-trustee or co-trustees, to appoint any new trustee or trustees, and that upon such appointment the surviving co-trustee should con- vey the estate, so that the surviving trustee or trustees might be jointly concerned in the trusts in the same manner as such surviving trustee and the person so dying would have been in case he were living, it was held, that the power authorised the appointment of («) 2 Sugd. Pow. 500. TO APPOINT NEW TRUSTEES. 409 new trustees after the death of both the original trustees (b). 41. And where the power to the liusband and wife in a settlement of personalty was, together with the surviving, or continuing or acting trustee for the time being, to appoint a new trustee to supply the place of the trustee dying, &c., it was considered that the power could be exercised on the removal of the surviving trustee as incapable or unfit to act in the trusts. The fair meaning of such a power, it was said, plainly was to appoint new trustees whenever the event requiring such change should arise (c). 42. A continuinc/ trustee has been held to be within a power, in case either of two trustees should decline to act, to the survivor of the trustees to appoint new trustees. But such a power could not be exercised if both of the trustees refused to accept the trust {d). 43. These authorities were followed in a case (e) where the power in a will was in case either of the trustees, A. B. and C, or any succeeding trustee or trustees, should die or refuse &c. the trusts, for the survivor of A. B. and C. and such trustee or trustees to be nominated in their stead to appoint new trustees. One of the trustees A. B. and C. died, another dis- claimed, and the third appointed two new trustees, which was held to be a valid appointment. The Court thought this conclusion might be supported even upon the context of the clause, but that it might be sup- ported on a broader ground. If the three trustees had (b) Morris ». Preston, 7 Ves.547; (f) /w re Roche, 2 Dru . & War. 2 Sugd. Pow. 503. The point upon 287. the power in White v. Parker, {d) Sharp v. Sharp, 2 Barn. & 1 Bing. N. C. 573, was not decided. Ahl. 405. (e) Cafe v. Bent, 5 Hare, 24 ; 3 Hare, 245. D D 4 410 POWJill IN EXECUTORS. not been nienii•) 2 Coll. C. C. 4G8. (s) Meiuertzhagen v. Davis, 1 Coll. C. C. 3,36, or (in the report) 353. (I) Tlic parts in italics in the reiiort do not seem to be other than parts of the common form. COURT WOULD APPOINT LARGER NUMBER. 415 54. Where the settlement contains no power to appoint new trustees, the Court of Cliancery, indepen- dently of" any legislative provision, would in a regular manner appoint new trustees ; and upon the authorities it seems clear that the Court would in a proper case appoint a larger number of trustees than was named in the settlement. In Devey v. Peace (t), where under a will there was a single trustee of a term, Leach, Master of the Rolls, in referring it to the Master to appoint a new trustee, observed, that only one trustee having been appointed by the will, the Master would only have to name one. But in the matter of Welsh, Lord Cottenham, C, approved of four persons being appointed trustees in the place of a lunatic who was the survivor of three original trustees {u) ; and in a later case (x) Knight Bruce, V. C, referred it to the Master to appoint three or more trustees, although only two were appointed by the will, one of whom had died and the other desired to be discharged. Where, by the true construction of the instrument, the power authorises the appointment of more than the original number of trustees, no question can of course arise (?/). 55. Where there is no power to appoint new trustees, or no person to execute it, equity, by force of its own jurisdiction, and without reference to the powers in the act, would in a regular suit, when the trustees are dead, or are entitled to be discharged, appoint new trustees, but the Court could not delegate its authority ; and therefore a power could not be inserted in the deed to (t) Taml. 77. (S/) Meinhevtzhaften v. Davis, 1 («) 3 Myl. & Cra. 292. Coll. 335 [the pagino- wrong in the (.r) Birch v. Cropper, 2 De Gex vepo)t]. & Sma. 255. 41 G COURSE OF PROCEDURE appoint new trustees, but the Court itself would make new appointments when necessary (z). Such a power has been delegated in some cases ; but it is now settled that the Court has not jurisdiction to confer it, even where the settlement gives such a power to the trustees and their successors (a). Of course parties should not now file a bill, w'lien the relief can be properly obtained in the summary mode pointed out by the late act. 56. If a bill be filed, and a party to the cause have power to appoint new trustees, the Court, where there is no sufficient objection, would give a special direction to the Master to approve of fit persons to be nominated by the donee of the power. But if no such special direction is given, the party will have no right to require the appointment of his nominees, although the power conferred upon him by the donor is still a cir- cumstance to be regarded by the INIaster (b). Vl. As to course of procedure. 57. The application under any of the provisions of the act for the appointment of a new trustee, or con- cerning any property subject to a trust, may be made by any person beneficially interested, whether under disability or not, or of any person duly appointed as a trustee; and that as to property su])ject to a mortgage, the application under any of the provisions may be made {z) Bayley v. Mansell, 4 Madd. Samimyo r. Gould, 12 Sim. 420, 226 ; Soutlnvell v. Ward, Tanil. was under a decree on marriage 314; Brown v. Brown, 3 You.-& articles. Coll. 395 ; Bowles v. Weeks, 14 (a) Holder v. Darbin, 11 Beav. Sim. 501 ; see Oclcleston v. Heap, 594 ; overruling White v. White, 1 De Gex & Sma. C40 ; Howard v. .5 Beav. 221 ; Oglander r. Oglandcr, Rhodes, 1 Kee. 581 ; Greenwood v. 2 De Gex & Sma. 381 . Wakeford, 1 Boav. 570. In Joyce (b) IMiddleton v. Reay, 7 Hare V. Joyce, 2 jMoII, 270, the power 106; in re Norwich Charities, 2 was given, but not on argument. Myl. & Cra. 275. UNDER TRUSTEE ACT, 1850. 417 by any person beneficially interested in the equity of redemption, whether under disability or not, or by any person interested in the mortgage monies (c). 58. Persons entitled to an order under any of the provisions may go before the Master in the first in- stance, who may certify in favour of the order sought (of), which may be obtained upon motion (e) ; or they may proceed at once by petition (/) ; and the powers usually exercised by the Court are conferred upon it (g) ; and the order may be made in a cause (/?). The Lord Chancellor or the Court has power to order costs to be paid out of the estate, or in such manner as may be thought proper (i) , 59. The Lord Chancellor or the Court is empowered to postpone making any order upon any petition until the right of the petitioner shall have been declared in a suit duly instituted for that purpose (k), 60. The powers given to the Court of Chancery in England and the powers given to the Lord Chancellor in lunacy extend to the colonies. The Court of Chan- cery in Ireland is invested with the like powers over property in Ireland as are given to the Court of Chan- cery in England, and the Lord Chancellor of Ireland is invested with the like powers in lunacy over property in Ireland as are given to the Lord Chancellor of Great Britain in lunacy (Z) ; and in citing the act in other acts of parliament, and in legal instruments and in legal proceedings, it will be sufficient to use the ex- pression, " The Trustee Act, 1850" (m). (c) Sec. 37. (//) Sec. 43. (d) Sec. 38; and see s. .50, fov (/) Sec. 61. the Master's power. (X) Sec, 53. (e) Sec. 40. (I) Sections 54—57. (/) Sec. 40. (m) Sec. 58. (ff) Sections 41, 42. [ 418 ] APPENDIX, AN ACT to consolidato and amend the Laws relating to tlie Conveyance and Transfer of Real and Personal Property vested in Mortgagees and Trustees. [5tli August 18u0.] Whereas an act was passed in the first year of the reign of his late Majesty King William the Fourth, intituled " An Act for amending tlie laws respecting Conveyances and Transfers of Estates and Funds vested in Trustees and Mortgagees, and for enabling Courts of Equity to give Effect to their Decrees and Orders in certain cases : " And whereas an act was passed in the fifth year of the reign of his late Majesty King William the Fourth, intituled "An Act for the Amendment of the Law rela- tive to the Escheat and Forfeiture of Real and Personal Property holden in trust : " And whereas an act was passed in the second year of the reign of Her present Majesty, intituled " An Act to remove Doubts respecting Conveyances of Estates vested in Heirs and Devisees of Mortgagees :" And whereas it is expedient that the provisions of the said acts should be consolidated and en- larged : he it tlierefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that all proceedings under the said acts or any of them commenced before the passing of this act may be proceeded with under the said recited acts, or according to the provisions of this act, as shall be thought expe- dient, and, subject as aforesaid, that the said recited acts shall be and the same are hereby repealed : provided always, that the several acts repealed by the said recited acts shall not be revived, and that such repeal shall only be on and after this act coming into operation. Tnterj))'ctatio7i of Terms. 2. And whereas it is expedient to define tlie meaning in which certain words are hereafter used ; it is declared, that the several TRUSTEE ACT, 1850. 419 words lierelnafter named arc lierciii used and apjilicd in the manner folloAving" respectively ; (that is to say,) The word "lands" shall extend to and include manors, mes- suages, tenements, and hereditaments, corporeal and incor- poreal, of every tenure or description, whatever may be the estate or interest therein : The word " stock" shall mean any fund, annuity, or security transferable in books kept by any company or society esta- blished or to be established, or transferable by deed alone, or by deed accompanied by other formalities, and any share or interest therein : The word " seised" shall be applicable to any vested estate for life or of a greater description, and shall extend to estates at law and in equity, in possession or in futurity, in any lands : The word "possessed" shall be applicable to any vested estate less than a life estate, at laW or in equity, in possession or in expectancy, in any lands : The words "contingent right," as applied to lands, shall mean a contingent or executory interest, a possibility coujded with an interest, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, Avhether immediate or future, and whether vested or contingent : The words " convey" and " conveyance," applied to any person, shall mean the execution by such person of every necessary or suitable assurance for conveying or disposing to another lands whereof such person is seised or entitled to a contingent right, either for the whole estate of the person conveying or disposing, or for any less estate, together with the performance of all formalities required by law to the validity of such conveyance, including the acts to be per- formed by married women and tenants in tail in accordance Avith the provisions of an act passed in the fourth year of the reign of his late Majesty King William the Fourth, intituled " An Act for the Abolition of Fines and Recoveries, and the Substitution of more simple modes of Assurance," and including also surrenders and other acts which a tenant of customary or copyhold lands can himself perform preparatory' to or in aid of a complete assurance of such customary or copyhold landn : E £ 420 TRUSTEE ACT, 1850. The words '' assign " and "assignment" shall mean the execu- tion and performance by a person of every necessary or suit- able deed or act for assigning, surrendering, or otherwise transferring lands of which such person is possessed, eitlier for the whole estate of the person so possessed or for any less estate : The word " transfer " shall mean the execution and performance of every deed and act by wdiich a person entitled to stock can transfer such stock from himself to another : The words " Lord Chancellor " shall mean as well the Lord Chancellor of Great Britain as any Lord Keeper or Lords Commissioners of the great seal for the time being: The words " Lord Chancellor of Ireland " shall mean as well the Lord Chancellor of Ireland as any Keeper or Lords Commissioners of the great seal of Ireland for the time being : The word " trust " shall not mean the duties incident to an estate conveyed by way of mortgage ; but, with this excep- tion, the Avords " trust " and " trustee " shall extend to and include implied and constructive trusts, and shall extend to and include cases where the trustee has some beneficial estate or interest in the subject of the trust, and shall extend to and include the duties incident to the office of personal representative of a deceased person : The word " lunatic " shall mean any person who shall have been found to be a lunatic upon a commission of inquiry in the nature of a writ de lunatico inquirendo : The expression " person of unsound mind " shall mean any per- son, not an infant, who, not having been found to be a lunatic, shall be incapable from infirmity of mind to manage his own a flairs : The word " devisee " shall, in addition to its ordinary significa- tion, mean the heir of a devisee and the devisee of an heir, and generally any person claiming an interest in the lands of a deceased person, not as heir of such deceased person, but by a title dependent solely upon the operation of the laws concerning devise and descent : The word " mortgage ' shall be npplicable to every estate, iiitercist, or property in lands or personal estate which would ill a court of equity be deemed merely a security for money : The word " person " used and referred to in tlie masculine TRUSTEE ACTj 1850. 421 gender shall include a female as well as a male, and shall include a body corporate : And generally, unless the contrary shall appear from the con- text, every word iu)porting the singular number only shall extend to several persons or things, and every word importing the plural number hall apply to one person or thing, and every word importing the masculine gender only shall extend to a female. Lord Chancellor may convey Estates of Lunatic Trustees and 3Iortgagees. 3. And be it enacted, that when any lunatic or person of un- sound mind sliall be seised or possessed of any lands upon any trust or by way of mortgage, it shall be lawful for the Lord Chan- cellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics, to make an order that such lands be vested in such person or persons in such manner and for such estate as he shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance orassignment of thelandsin the same manner for the same estate. I\lay convey Continyent Rights. 4. And bo it enacted, that when any lunatic or person of unsound mind shall be entitled to any contingent right in any lands upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order wdiolly re- leasing such lands from such contingent right, or disposing of the same to such person or persons as the said Lord Chancellor shall direct; and the order shall have the same effect as if the trustee or mortu'ao;ce had been sane, and had dulv executed a deed so releasing or disposing of the contingent right. Lord Chancellor may transfer Stock of Lunatic Trustees and Mortgagees. 5. And be it enacted, that when any lunatic or person of un- sound mind shall be solely entitled to any stock or to any chose in action upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order vesting in any person or persons the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in resjtect thereof; E E 2 42'2 TRUSTEE ACT, 1850. ;.ii(l when any person or persons shall be entitled jointly with any lunatic or i)erson of unsound mind to any stock or chose in action uj>on any trust or hy way of mortgage, it shall be lawful for the said Lord Chancellor to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any other person or persons the said Lord Chancellor may appoint. Power to transfer Stock of deceased Person. G. And be it enacted, that when any stock shall be standing in the name of any deceased person whose personal representative is a lunatic or person of unsound mind, or when any chose in action shall be vested in any lunatic or person of unsound mind as the personal representative of a deceased person, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action or any interest in respect thereof, in any j)crson or persons he may appoint. Court of Chancer)/ may convey Ebtate.'i of Infant Trustees and 3forf{/ar/ecs. 7. And be it enacted, that where any infant shall be seised or possessed of any lands upon any trust or by way of mortgage, it shall be lawful for the Court of Chancery to make an order vest- ing such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the infant trustee or mortgagee had been twenty-one years of age, and had duly executed a convey- ance or assigrmient of the lands in the same manner for the same estate. Contingent Rif/hts of Infant Trustees and Mortgagees. 8. And be it enacted, that where any infant shall be entitled to any contingent riglit in any lands upon any trust or by way of mortgage, it shall be lawful for the Court of Cliancery to make an order wholly releasing such lands from such contingent right, TRUSTEE ACT, I80O, 42^ or disposino- of tlio same to such person or persons as the said Court shall direct ; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly exe- cuted a deed so releasing or disposing of the contingent right. Court of Chancery may convey the Estate of a Trustee out of the Jurisdiction of the Court. 0. And be it enacted, that when any person solely seised or possessed of any lands upon any trust shall be out of the jurisdic- tion of the Court of Chancery, or cannot be found, it shall be lawful for the said Court to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct; and the order shall have the same ett'eet as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate. Court may viahe Order in Cases where Persons are seised of Lands jointly with Parties out of Jurisdiction of Court, <)''<:'. 10. And be it enacted, that when any person or persons shall be seised or possessed of any lands jointly with a person out of the jurisdiction of the Court of Chancery, or who cannot be found, it shall be lawful for the said Court to make an order vesting the lands in the person or persons so jointly seised or possessed, or in such last-mentioned person or persons, together with any other person or persons, in such manner and for such estate as the said Court shall direct; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner for the same estate. Cofitlngent liif/hts of Trustees. 11. And be it enacted, that when any person solely entitled to a contingent right in any lands upon any trust shall be out of the jurisdiction of the Court of Chancery, or cannot I)e found, it shall be lawful for the said Court to make an order whollv releasinir such lands from such contingent right, or disposing of the same to such person or persons as the said Court shall direct; and the order shall have the same effect as if the trustee had duly exe- cuted a conveyance so releasing or disposing of the contingent right. a a o 424 TRUSTEE ACT, 1850. Court may make Order in Cases nihcre Persons are jointJij entitled with others out of the Jurisdiction of the Coiirt to a coutingetit Right in Lands. V2. And be it enacted, that when any person jointly entitled with any other person or persons to a contingent right in any lands upon any trust shall be out of the jurisdiction of the Court of Chancery, or cannot be found, it shall, be laAvful for the said Court to make an order disposing of the contingent right of the person out of the jurisdiction, or who cannot be found, to the person or persons so jointly entitled as aforesaid, or to such last-mentioned person or persons, together with any other person or persons ; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a convey- ance so releasing or disposing of the contingent right. When it is uncertain which of several Trustees ivas the Survivor. 13. And be it enacted, that where there shall have been two or more persons jointly seised or possessed of any lands upon any trust, and it shall be uncertain which of such trustees was the survivoi-, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the survivor of such trustees had duly executed a conveyance or assignment of the lands in the same manner for the same estate. When it is uncertain whether the last Trustee be Livinfj or Dead. 14. And be it enacted, that where any one or more person or persons shall have been seised or possessed of any lands upon any trust, and it shall not be known, as to the trustee last known to have been seised or possessed, whether he be living or dead, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct; and the order shall have the same effect as if the last trustee had duly executed a convey- ance or assignment of the lands in the same manner for the same estate. Tinien Trustee dies without an Heir. 15. And be it enacted, that when any person seised of any lands upon any trust shall have died intestate as to such lands without an heir, or shall have died and it shall not be known who TRUSTEE ACT, 1850. 425 is his heir or deviseo, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the heir or devisee of such trustee had duly executed a conveyance of the lands in the same manner for the same estate. Contingent Rujht of unborn Trustee. 16. And be it enacted, that when any lands are subject to a contingent right in an unborn person or class of unborn persons who upon coming into existence would in respect thereof become seised or possessed of such lands upon any trust, it shall be lawful for the Court of Chancery to make an order wliich shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates Avhieh such unborn person or class of nnborn persons would upon coming into existence be seised or possessed of in such lands. Power to convey in place of a refusing Trustee. 17. And be it enacted, that where any person jointly or solely seised or possessed of any lands upon any trust shall, after a demand by a person entitled to require a conveyance or assign- ment of such lands, or a duly authorised agent of such last-men- tioned person, have stated in writing that lie will not convey or assign the same, or shall neglect or refuse to convey or assign such lands for the space of twenty-eight days next after a proper deed for conveying or assigning the same shall have been tendered to him by any person entitled to require the same, or by a duly authorised agent of such last-mentioned person, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate. Power to convey in ])Iace of Person entitled to contingent Rig] it. 18. And be it enacted, tliat where any person jointly or solely entitled to a contingent right in any lands upon any trust shall, after a demand for a conveyance or release of such contingent right by B £ 4 ^26 TRUSTEE ACT, 1850. a person entitled to require the same, or a duly authorised ageiii of such last-mentioned person, have stated in Avriting that he will not convey or release such contin^ '2-2. And be it enacted, that when any person or persons shall be jointly entitled with any person out of the jurisdiction of the Court of Chancery, or who cannot be found, or concerning whom it shall be uncertain whether he be living or dead, to any stock or chose in action upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons, together with any person or persons the said Court may apjioint ; and when any sole trustee olT any stock or chose in action shall be out of the jurisdiction of the said Court, or cannot be found, or it shall be uncertain whether he be living or dead, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in any person or per- sons the said Court may appoint. TRUSTEE ACT, 1850. 429' When, Trustee of Stock refuses to Transfer. 23. And be it enacted, that where any sole trustee of any stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person absolutely entitled thereto, it shall be lawful for the Court of Chancery to make an order vesting the sole right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said Court may appoint. Whe?i one of sevei'al Trustees of Stock refuses to Transfer or Heceive and Pay over Divideyids. 24. And be it enacted, that where any one of the trustees of any stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action according to the directions of the person absolutely entitled thereto, for the space of twenty- eight days next after a request in writing for that purpose shall have been made to him or her by such person, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, in the other trustee or trustees of the said stock or chose in action, or in any person or persons whom the said Court may appoint jointly with such other trustee or trustees. When Stock is standing in the Name of a deceased Person, 25. And be it enacted, that Avhen any stock shall be standing in the sole name of a deceased person, and his or her personal representative shall be out of the jurisdiction of tlie Court of Chancery, or cannot be found, or it shall be uncertain whether such personal representative be living or dead, or such personal representative shall neglect or refuse to transfer sucli stock, or receive the dividends or income thereof, according to the direc- tion of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the i^erson entitled as aforesaid, 430 TRUSTEE ACT, 1850. i. shall bo lawful for the Court of Chancery to make an order vestiner the rislit to transfer such stock, or to receive the divi- dends or income thereof, in any jjerson or persons whom the said Com-t may appoint. Effect of an Order ve.sttnrj the let/al Right to transfer Stock. •26. And be it enacted, that where any order shall have been made under any of the provisions of this act vesting the right to any stock in any person or persons appointed by the Lord Chan- cellor, intrusted as aforesaid, or the Court of Chancery, such legal right shall vest accordingly, and thereupon tlie person or persons so appointed arc hereby authorised and empowered to execute all deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names or otherwise, or relating to the receipt of the dividends thereof, to the extent and in conformity with the terms of such order; and the Bank of England, and all companies and associations what- ever, and all persons, shall be equally boimd and compellable to comply with the requisitions of such person or persons so ap- pointed as aforesaid, to the extent and in conformity with the terms of such order as the said Bank of England, or such com- panies, associations, or persons, would have been bound and com- pellable to comply Avith tlu; requisitions of tlie person in whose place such a])pointmeiit shall have been made, and shall be equally indemnified in complying with the requisition of such person or persons so appointed as they would hav/^ii<. appoint a new trustee or new trustees, and it shall be found inex- pedient, difficult, or impracticable so to do without the assistance of the Court of Chancery, it shall be lawful for the said Court of Chancery to make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees. The new Trustees to have the Powei'S of Trustees appointed by Decree in Suit. 33. And be it enacted, that the person or persons who, upon the making of such order as last aforesaid, shall be trustee or trustees, shall have all the same rights and powers as he or they would have had if appointed by decree in a suit duly instituted. Power to Court to vest Lands in new Trustees. 34. And be it enacted, that it shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to direct that any lands subject to the trust shall vest in the person or persons who upon the appointment shall be the trustee or trustees for such estate as the Court shall direct ; and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate. Power to Court to vest Right to sue at Lam in new Trustees. 35. And be it enacted, that it shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to vest the right to call for a transfer of any stock subject to the trust, or to receive the dividends or income thereof, or to sue for or recover any chose in action, subject to the trust, or any interest in res])ect tliereof, in the person or persons who upon the appoint- ment sliall be the trustee or trustees. 434 TRUSTEE ACT, 1850. Old Trustees not to be discJiart/ed Jrom Liahilitij. 30. And be it enacted, tiiat any sucli ai'pointnicnt hy the Court, of" new trustees, and any sueli conveyance, assignment, or transfer as aforesaid, shall operate no further oi- otherwise as a discharjTO to any former or eontinuing- trustee tlian an appoint- ment of new trustees under any power for that purpose contained in any instrument would have done. Who may applij. 37. And be it enacted, that an order, under any of the herein- before contained provisions, for the apiDointment of a new^ trustee or trustees, or concerning any lands, stock, or chose in action subject to a trust, may be made upon the application of any person beneficially interested in such lands, stock, or chose in action, whether under disability or nor, or upon the application of any person duly appointed as a trustee thereof; and that an order under any of the provisions hereinbefore contained concern- ing any lands, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the monies secured bv such mortgage. Power to go before the blaster in thejirst instance. 38. And be it enacted, that Avhen any person shall deem Iiim- .•^elf entitled to an order under any of the provisions hereinbefore contained, either from the Lord Chancellor, intrusted as afore- said, or from the Court of Chancery, it shall be lawful for him to exhibit before any one of the Masters of the High Court of Chan- cery a statement of the facts whereon such order is sought to be obtained, and adduce evidence in support thereof; and if such evidence shall be satisfactory to the said Master, he shall, at the request of the person adducing such evidence, give a certificate under his hand of the several material facts found by him to be true, and of his opinion that such person is entitled to an order in the form set forth in such certificate. Power to petition the Court or the Lord Chancellor. 39. And be it enacted, that any person who shall have obtained such certificate may apply by motion to the Court of Chancery, or to the Lord Chancellor, intrusted as aforesaid, for an order to the effect =ed to have been received. Conrt rami make a Decree in the Absence of a Trustee, 49. And be it enacted, that where in any suit commenced or to be commenced in the Court of Chancery it shall be made to appear to the Court by affidavit that diligent search and inquiry has been made after any person made a defendant, who is only a trustee, to serve him with the process of the Court, and that he cannot lie found, it shall be lawful for the said Court to hear and determine such cause, and to malct, or in anywise j)rejudice any person against whom the same shall be made, without service of process upon him as aforesaid, his heirs, executors, or administrators, for or in respect of any estate, right, oi- interest which such person shall have at the time of making such decree for his OAvn use or benefit, or otherwise than as a trustee as aforesaid. Poicers of the Master. 'lO. And be it enacted, that when any person shall, under the provisions of this act, apply to one of the Masters of the Court of Chancery in the first instance, and adduce evidence for the pur- pose of obtaining the certificate of such Master as a foundation for an order of the said Lord Chancellor, intrusted as aforesaid, or the said Court of Chancery, it shall be lawful for the said Master to order service of such application upon any person, or to dismiss such application, and to direct that the costs of any persons con- sequent thereon shall be paid by the person making the same; and all ordeis of the jNIaster under this act shall be enforced by the same jiroeess as oi'ders of the Court made in any suit against a party thereto. TRUSTEE ACT, 1850. 439 Costa uiatj be paid oiif of I ha J^atalc. 51. And bo it euacied, that the Lord Chancellor, intrusted aa atbresiaid, and the Court of Cliancery, may order the costs and expenses of and relating to the petitions, orders, directions, con- veyances, assignments, and transfers to be made in pursuance of this act, or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively shall be made, or in such manner as the said Lord Chancellor or Court shall think proper. Co}iu)thsion concenihuj Person of Unsound Mind. 52. And be it enacted, that upon any petition being presented under this act to the Lord Chancelloi-, intrusted as aforesaid, concerning a person of unsound mind, it shall be lawful for the said Lord Chancellor, should he so think fit, to direct that a commission in the nature of a writ de Innatico inquirendo shall issue concerning such person, and to postpone making any order u]>on such petition until a return shall have been made to such commission. Suit may he Directed. 53. And be it enacted, that upon any petition under this act being presented to the Lord Chancellor, intrusted as aforesaid, or to the Court of Chancery, it shall be lawful for the said Lord Chancellor or the said Court of Chancery to postpone making any order upon such j)etition until the right of the petitioner or j)etitioners shall have been declared in a suit duly instituted for that purpose. Poicers of Court of Chancerjj to Extend to Propert)j in the Colonies. 54. And be it enacted, that the powers and authorities given by this act to the Court of Chancery in England shall extend to all lands and personal estate within the dominions, plantations, and colonics belonging to Her Majesty (except Scotland). Powers (jicen to Court of Chancery may he exercised hy that Court in Ireland. 55. And be it rnaetod, that the powers and authorities given by this act to the Court of Chancery in England shall and may be exercised in like manner and are hereby given and extended to the Court of Chancei-y in Ireland with respect to all lands and personal estate in Ireland. F 1' a 4A0 TRLSTEE ACT, 1850. jPuiccrs of Lord Chancellor in Liumcy to extend to Profertij ill the Colonies. 56. And be it enacted, that the powers and authorities given by this act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall extend to all lands and personal estate within any of the dominions, plantations, and colonics belonging to Her Majesty (except Scotland and Ireland). Powers of Lord Chancellor in Lunacy viay he exercised hy Lord Chancellor of Ireland. 57. And be it enacted, that the powers and authorities given by this act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall and may be exercised in like manner by and arc hereby given to the Lord Chancellor of Ireland, intrusted as aforesaid, with respect to all lands and personal estate in Ireland. Short Title. 58. And be it enacted, that in citing this act in other acts of Parliament, and in legal instruments and in legal proceedings, it shall be sufficient to use the expression " The Trustee Act, 1850." Commencement of Act. 59. And be it enacted, that this act shall eome into operation on the 1st day of November ISoO. [ 441 ] INDEX. ABSENCE, Page. saving for, in statute of limitations - - - - - 71 what is not beyond seas -------76 of husband, -where his concurrence may be dispensed with 243 of trustee, remedy under trustee act of 1850 - - 390,396 ACCEPTANCE OF RENT, where a confirmation of void lease under power - - 300 ACCOUNTS, kept by mortgagee, effect of them - - - - - 113 ACKNOWLEDGMENT, what acts amount to an acknowledgment of a tenancy at will 59 of title in writing, effect of ------ 68 written, by mortgagee, its effect - - - - - 109 made out by deeds or correspondence - - - 69, 111 as regards money -------- 128 or debts 129 judge to decide upon operation of writing - - - 68 by whom to be signed, &c. ------ 69 by admission of claim to rent - ----- 68 when it should be called for ------ 83 effect of mortgagee's keeping accounts - - - - 113 letters, how to be construed ----- ib. 129 what proceedings in a suit amount to an - - - 131 deeds enrolled need not be acknowledged, where - - 245 ACQUIESCENCE, rule of equity not altered by statute of limitations - - 108 ACTION, to recover land, when barred - - • - - - 16 ACTUAL TENANT IN TAIL, who is--------- 182 n. ADEMPTION, of bequest of term by acquisition of the fee - - - 356 of devise to sell for legatees, by sale by testator - - 359 of specific legacy, where ------- 365 ADMINISTRATOR, time runs against him from intestate's death - - - 53 not a protector of a settlement ----- 202 I' F 4 442 INDEX. ADVEHSE POSSESS ION, Page, not necessary ibr lime to l)iir ------ '24 where no i)rovision in the act, qii. - - - - ib. possession may be shown to be consistent with owner's continued right -------- 26 jiossession of land no bar to right of mines reserved - 31 payment of rent bj'^ lessee to wrongful claimant, time will run against lessor -__---- -11 what amounts to------- 78, 80 adverse presentations to bonelicc, eiiect of - - - 1 1'J ADVOWSON, wiiere right to barred by time - - - - - 140 persons claiming through tenant in tail barred - - 150 100 years a final bar, with an exception - - - ib. AGExNT, where an acknowledgment by or to liiui is valid under statute of limitations ----- 09 n. I'JS n. who is an agent - - - - - - -113 a trustee may be ---___ 1-29 AGllEEMKXTS, by tenant in tail cannot be enforced in equity against issue in tail -------- 195, 19(3 by husband may be enforced against Avidow entitled to dower, where -----___ '263 by husband not to bar dower, may be enforced - - 265 ALIEN, cannot 1)6 protector of a settlement . - - - 205 caimot make a will -------- 308 ALLEGATIONS, in order under trustee act of 1850, evidence - - - 3y7 ALTERATIONS IN ^VILL, unattested, wlien to be presumed to have been made - 340 w here effective ---_._._ 347 ANCESTOR, limitation to heirs of, effect of ----- 271 lineal, may be heir to his issue - - _ _ _ 272 heirs of maternal, where they take - - - - - ib. ANCIENT DEMESNE, fines and recoveries of, where rendered valid - - - 183 now abolished - - - - lyQ ANNUITANT, Tinder will, within 2d section of statute of limitations - 19 time does not run whilst annuity paid - - - - 29 distress for annuity under statute of limitations - - 20 ANNUITY, arrears of, effect of statute of limitations on - - - 133 INDEX. 443 APPOINTMENT, Page, part of instnuneut creating tlie po\V(.n' - - - 182 ii. by will uuiler power to be executed as a proper \YiIl - 309 ARREARS, wliat recoverable of tlower, rent, or interest - 132, 133, 13-t ASSETS, not marshalled for legatee against devisee thougli heir - 270 administration of, not altered by new will act - - 385 ASSIGN, cannot be protector of a settlement - - - - 203 ASSIGNEES OF BANKRUPT TENANT IN TAIL, to receive rents and enforce covenants till disposition - 23(3 ASSIGNMENT, must be by deed, where - - - - - 280 ATTAINDER, where of no force in descents ------ 27-1 its operation on trust or mortgage estates - - - 401 ATTENDANT TERMS, made to cease in what cases ------ 287 operation on, of statute of limitations _ - - - 36 ATTESTATION TO WILL, no form of, necessary __--.- 309, 338 where the testator's signature in, is valid - - - 313 where the signature is beneath it - - - - 317 how the witnesses are to attest ----- 337 BANKRUPT, tenant in tail, power of commissioner _ _ - - 231 deeds to be enrolled ------ 232 where base fee will become enlarged - - - _ ib, where an act of the commissioner will coniirm a voidable fee in a purchaser ------- 234 his power remains, subject to rights of assignees - - 235 power of commissioners although bankrupt be dead - ib. their power over copyholds ----- ib. BAR OF ESTATE, under statute of limitations - - - 11 BASE FEE, voidable fee created before statute of limitations, how affected 93 incidents of --------- 90 may be enlarged -------- 197 where ij^so facto enlarged ______ 199 wliere subsequent act confirms it - - - - - 196 BILL IN EQUITY, filing prevents the operation of statute of limitations 101, 114 where for the benefit of all creditors - - - - 119 444 INDEX. BISHOP, Page. presentation by Crown, on incumbent becoming a bishop, not adverse to patron ------- 149 BLIND PERSON'S WILL 331 BROTHER AND SISTER, descents between - - - 271 BURNING a will, a revocation 343 CANCELLATION not a revocation of a will - - - - 346 CANONS OF DESCENT 276 CERTIFICATE, of acknowledgment of deed by a married woman - - 243 CESTUI QUE TRUST, operation of old statute of limitations on . - - 4 time was a bar as between cestuis que trust - - 36 operation of new statute on - - - - - - ib. not barred whilst trustee is not - - - - 41, 102 excepted out of s. 6 in statute of limitations as to tenancy at will -56 remedy of under express trusts, when barred - - - 102 for money charged on land when barred - - - 104 CHANCELLOR, LORD, the protector of a settlement, where - - _ . 206 CHARGE, what is, and not a trust - - - - - - -107 of money on land, twenty years a bar - - _ . hq paid off by tenant for life, time does not run - - _ 12.3 must be a hand to receive and give a discharge - - ib . CHARITIES, where barred by time 35^ 100 where the Court may appoint new trustees of - - 405 CHOSE IN ACTION, within new statute of wills 304 trustee act of 1850 - - _ _ _ 339 395 right to sue for ----- _ 395 not forfeited where in trust or mortgage, except as to beneficial interest ----__. 492 CHURCH PROPERTY, where time runs against - - - 147 CLAIM, under the new orders -----__ 405 CODICIL, where it operates to confirm a will or prior codicils not duly executed ---_____ 03^ must be duly executed, although the will declares other- ^''se 340 where it revives a revoked will - - - _ . 343 COMMISSIONERS OF BANKRUPT, their power over estates tail ---__. 231 INDEX. 445 COMMISSION OF LUNACY, Pago, may be directed under trustee act of 1850 _ - - 390 COMMON, right of, when barred by time - - - - 160 CONCEALED FRAUD, remedy against it under statute of limitations - - 102 what amounts to it- - - - - - - - 107 CONCURRENT RIGHTS, how affected by statute of limitations _ - - _ 43 CONDITION, when right to enter for breach of, is barred - - i2, 51 not implied in exchange or partition _ - - - 286 benefit of, may be taken by a person not party to the deed ---------- ib. CONFIRMATION, where acceptance of rent confirms a void lease under power ---------- 300 CONSENT, owner of prior estate may consent to bar of estate tail without conveying - - - - - - -194 of protector of a settlement - - - 201,210,211,214 in the case of copyholds ------ 227 CONTINGENT ESTATES OR INTERESTS, tenant in tail in contingency, his power - - - - 188 in estates in Ireland how disposable - - _ _ 053 may be conveyed under statute - - - - - 286 may be devised .------_ 3^4 within trustee act of 1850 389, 391 CONTINGENT REMAINDERS, not destroyed by determination of preceding estate of freehold 287 CONTINUAL CLAIM, does not preserve right of entry - - II CONTRACTS, by tenant in tail, inoperative ------ 195 except as against himself _ - - _ _ 195 a revocation of a will ---____ 354 devise after contract, effect of ----- 354 devise not affected by subsequent optional contract to sell 358 CONVEYANCE, act for shortening -------- 285 not a revocation of a will, where - _ _ - _ 352 COPARCENERS, disability of one under the old law did not save the other -----_____3 possession of one, not the possession of the other - - 66 440 INDEX. COPARCEXERS-c«'/i/wwy/. Page, their chilclreii take by descent the wliule oi' their respec- tive shares --------- -28:3 COPYHOLDS, included ill new statute of liiuitatious - - - - 15 new will act ------- 3G1 tenant in tail of, his power ------ •227 niay he devised by married woman under power - - 308 how to be transferred under trustee act of 18-30 - - 390 CORPORATIONS, bound by statute of limitations - - - 15 CORPORATIONS SOLE, SPIRITUAL OR ELEEMO- SYNARY, remedy for land or rent ------- 147 CORPOREAL HEREDITAMENTS, the subject of grant for the purpose of conveyance - 286 CORRESPONDENCE, amounting to an acknowledgment of title - - - 69 COURT OF CHANCERY. See Equity. may enforce contracts by tenants in tail, how far - - 195 but cannot aid defects under the act - - - - 195 where the protectors of a settlement - - - -200, 221 may order conveyances from infant trustees or mort- gagees -----_--- 388 or where trustee is out of the jurisdiction, or the like 390 where it may appoint new trustees - - - - 404 how it acts on its own jurisdiction in such appointments 415 cannot delegate its ^lower to appoint new trustees - - 416 COVENANT, action on, when to be brought - - ^ - - 138 for payment of rent on lease, remedy when barred - - ib. or of rentcharge -_-.--_ 140 not by words give or grant ------ 286 benefit of may be taken by person not party - - - ib. remains, although reversion on lease surrendered or merged -------__ 287 COVERTURE, savings for, in statute of limitations _ - 71 CREDITORS, where a bill iiled by one is available for others - - 119 possession l)y prior creditor no bar to later ones - - 141 class of, within statute of limitations - - - - 15 CROWN, THE, where its rights are bnrred - - - - - -11 effect of presentations by -----. 149 CUSTOMARY FREEHOLDS, subject to power of commissioners under a tiat in bank- niptcy -231 INDEX. 447 CUSTOMARY TllEmWLB^—conHmied Page. within new statute of limitations - - - - - 15 new will act ------- 361, 371 CUSTOM OF LONDON, us to lights, excluded in claim under tlie statute - - 172 CUTTING A WILL, where a revocation - . - - 34-') DATE, not required to a will ------- 005 DEATH, presumed at the end of seven years from last account - 3 but particular time must be proved if necessary - il). DEBT, action of, when to be brought „ - - - - 136 DECREE, after decree for sale for debts of a deceased person, heir or devisees are trustees -,.--- 30-3 after decree for conveyance or assigjnment, parties to suit may be declared trustees -___-- 304 DEED, amounting to an acknowledgment of title - - - 69 may convey contingent interests, rights of entry, &c. - 244 or equitable estate tail in copyholds _ - - 229 married woman may disclaim b_y ----- 245 by tenants in tail to bar, entail, ^c. must be enrolled - 213 how it operates ---._-_ 014 need not be acicnowledged - - _ _ _ 245 where required by statute --._,_ 035 need not be indented ------- oqq person not a party may take immediale estate or lienefit of condition --------- 286 DEFECTIVE EXECUTION, of power of leasing when made good - - . - 095 DESCENT, cast, does not defeat right of entry - - - - - 11 to be traced from the purchaser ----- 266 person last entitled tlie purchaser unless proof to the con- trary 267 seisin unnecessary -------- ofjg where father illegitimate, his son entitled by descent, cannot transmit to his heir r.i'^M?'/p ??m^n'?7rf - - lb. heir, a devisee, takes as devisee ----- o^^o limitation to grantor or his heirs, they take as pur- chasers ---------- j]j, to heirs, &c, of ancestors of a person, descent as if ancestor were the purchaser - - - - - 271 between brothers and sisters, to be traced througli ])arent ilt. lineal ancestor may be heir to Ids issue - - - _ 272 males preferred to females - - - . ^' ^ ij,. 448 INDEX. DESCENT— coM//H?/cr/. Page, mother of more remote male paternal ancestor, how pre- ferred ---------- 273 half blood admitted ------- ib. possessio fratris at an end ------ 275 attainder of no force, where ------ 274 when the new law commenced ----- ih. canons of descent, under old and new law _ - - 276 jiedigree, how to be traced under new law - - 275, 279 from coparcener to her issue ------ 282 DESCENT CAST, does not defeat a riglit of entry or action - - - 11 DESTROYING A WILL, a revocation ---__-___ 343 effect of destruction of one of two parts - - - 344 n. DEVISE AND BEQUEST, after contract for fee by termor, term will attend - - 354 of leasehold adeemed by conveyance of fee to testator - 356 not affected by subsequent optional contract to sell - 358 to trustees, to sell for legatees, adeemed I)}' sale bj^ tes- tator ---------- 3;j9 passes all property at testator's death - - - - 3G4 contingent and future interests - - - - ib. joint tenant, effect of his devise ----- 365 confined by testator to present property - - - - 366 of pits, &c. of clay, what passes ----- ib. residuary or general, include lapsed and illegal devises - 367 general, include copyholds, leaseholds, and estates sub- ject to general powers ----- 368, 369 fee passes without words of inheritance - - - - 371 " die without issue," &,c., confined to time of doatli - - 373 trustees or executors take the fee, where - _ _ 379 estate tail does not lapse if issue - - _ _ 333 to issue, leaving issue, do not lapse ----- 384 contra under an appointment, wliere - - - 385 where a bar of dower ------ 263-265 DIE WITHOUT ISSUE, &c., ojjeration of the words in wills - - . 373^ 374 n. 378 DISABILITIES, successive, not saved under old statute - - - - 2 of one coparcener under old law - - - - - 3 ten years allowed for, after removal of them - - - 71 but not exceeding forty years ----- jb. what places are not beyond the seas - - - 76 in the case of easements ------- 165 DISCLAIMER, by married women 245 INDEX. 449 DISCONTINUANCE, Page, does not defeat right of entry - - - - - -11 time runs from discontinuance of jiossessioii - - - 19 of possession in statute of limitations, what it means - 31 DISPOSITION, by tenant in tail, its ojieration _ _ _ - - 194 for a partial purpose, how it operates - - - - DISTRESS, right to make a, when barred - - - - - 16, 138 n. for arrears of annuity ____--- 133 DOUBTFUL TITLE, title by nonclaim, not deemed doubtful - - - - 11 DOWER, writ of dower remains - - - - -- -10 arrears for six years only can be recovered - - - 132 how affected by 3 & 4 Will. 4, c. 105 - - - - 254 how barred by the old law ------ ib. by previous attendant term ----- ib. where barred by equitable jointure ----- 256 thirds not barred, where ------ 257 under the new law -------- 259 out of estates wholly or partially equitable - - 261 should not be declared to be barred by conveyance Avitli- out instructions -------- 260 attaches on estate contracted for ----- 263 in husband's power, by will or otherwise - - - ib. saving in tbe act ____--- 265 barred by devises to wife, where ----- 264 covenant not to bar, binding ------ 265 dowress not a protector of settlement - - - - 202 EASEMENTS, where established by time - - - - - -161 pleadings - - - - - - - - -162 effect of permission asked - - - - - -167 savings for disabilities ------ 163, 174 how time of enjoyment is to be reckoned - - - 170 EJECTMENT, the remedy under new statute of limitations - - 11, 17 where it can be brought without notice - - - - 37 not barred by purchaser's possession - - _ 57^ 58 ELECTION, after decree for conveyance, &c. in cases of election parties to suit may be declared trustees - _ _ 394 ENJOYMENT, by whom and in what manner to establish rights to ease- ments, &c. ] 05, 1 06 450 INDEX. ENROLMENT, Page, of (leptls under substitution for recovery act - 212, 213, 244 a protection to purcliapers against ileecls not enrolled 197, 229 not necessary of deeds or surrenders of copyholds - - 229 how it operates ___-__-- 24"i ENTRY, RIGHT OF, not defeated by descent cast, &^. - - - - - 11 not saved by continual claim - - - - - - ib. confined to twenty years - - - - - - - 10 w'hen time begins to run ------ 18 entry not a possession -------60 EQUITABLE INTEREST, how aftected by the old statute of limitations - - 4 equitable estate liable to dower ----- 201 EQUITABLE TENANT IN TAIL, of copyholds, how to bar the entail . - - - 229 EQUITY, adopted the old statutes of limitation _ - - - «), 8 not now to act by analogy ------ 99 remedy for recovery of equitable interests - - - 101 may still refuse relief on acquiescence, &lc., though twenty years not run out - - - - - - -108 may rectify invalid leases under powers, where - - 295 may enforce contract not to bar dower - - - - 205 EQUITY OF REDEMPTION, operation of time on, before new statute of limitations - right to it barred by adverse possession - - - - 7 time opened by purchase of life estate - - - - 8 effect of acknowledgment of payment of interest by tenant for life of equity of redemption ----- 29 when mortgagor's right barred ----- 109 ESCHEAT, of trust or mortgage estates only operates on beneficial interest --------- 401 ESTATE TAIL, how far bound by contract _ _ - - - 19o, 190 legal or equitable -------- 183 in copyholds -------- 227 by devise, does not lapse if issue ----- 383 not barrable by warranty - - - - - -180 ex provislone inri, act repealed _ _ _ _ ib, 190 by what conveyances to be barred ----- 194 power of commissioner of bankrupt over - _ - 231 EVIDENCE, infirm, of witnesses to will, efiect of _ _ - _ n32 who mnv be a witness to a will _ - _■ - _ 334 INDEX. 451 EYlDENCE-contlnued. Page, allegations in order under trustee act of 1850 are evi- dence ---------- 397 aliunde of part obliterated in will where admissible 347, 34y how obliterated ]»art may be discovered . - - - 348 EXCHANGE, except of copyliolds to be by deed ----- 286 does not imply any condition in law - - - - ib. after decree for, parties to suit maybe declared trustees 391: EXECUTOR, not a protector of a settlement - - _ . - 202 takes the fee, under a devise, where . - _ - 379 EXECUTORY DEVISE, within 3d section of statute of limitations - - 23, 42 EXPRESS TRUSTS, time does not run except from conveyance to purchaser 102 take cases out of the 40th section of statute of limita- tions 132 and out of the 42d section ----- 135 EX PROTISIONE VIRI, estates tail 196 FELONY, husband transported, his concurrence dispensed with, - 243 attainder for, when heir not affected by - - - 274 FEME COVERT, wills by 307 dispositions by, by deed - . _ . . 239, 242 whether she can dispose of a reversionary charge on land, 240 may bar her dower -------- 242 may suspend or extinguish a jiower - - - _ 242 as protector, consent by ------ 202,211 where her husband has committed felony - - 207, 243 cannot be compelled to convej^, where - - - - 244 may dispose of contingent interests » - _ - 244 may disclaim --------- 245 may execute power by will ------ 307 may devise copyholds where surrendered - . _ 308 surrenders by, of copyholds ------ 243 husband must concur in bar of estate tail - - - 239 husband's consent may be dispensed with, wherp - - 243 saving for, in old statute of limitations - - - - 2 in new statute - - - - - -71 where barred by time during coverture - - - - 79 not where conveyance by her and her liusljand - 87 FEOFFMENT, to be by deed --------- 2SG has not a tOTtir.iT=^ operation ------ ib. U G- 452 INDEX. FINES, Page, of lands in ancient demesne rendered valid - - - 183 in court without jurisdiction, good 184 errors in, cured -------- ib, abolished _.------- 186 FIRST ACCRUED, when rights are deemed nndtr statute of limitations to have first accrued -------18 when in the case of express trusts - - - - 102 FIRST PURCHASER, Avbo is, on descents - - - - 2GG FOOT OR END OF WILL, what is - - - - 311, 331 FORECLOSURE, by legal or equitable mortgagee - 98, 117 FORFEITURE, ■when time runs against right to enter for - - 42, 51 effect of, on trust and mortgage estates - - - - 401 FORMEDON, taken away 10, 94 FORTY YEARS, where a bar under savings in statute of limitations 71, 86 when a bar of itself, _---__ 161 FRAUD, effect of on time, before new statute of limitations - - 7 concealed, remedy against --___- 102 "FUTURE ESTATE," in statute of limitations includes an executory devise - 23 GIVE OR GRANT, does not imply any covenant in law _ - _ - 286 GRANT, what now "lies in 286 HALF BLOOD, admitted in descents ------- 273 how they take - - 279-281 HEIR, barred by time, yet entitled to what is undisposed of, where - ■• -------- 35 not a protector of settlement ------ 202 of trustee not known, remedy under trustee act of 1850 - 391 a trustee, after decree for sale, where - _ - 392, 394 takes, under the new law, as devisee - - - _ 270 legatee not entitled to have assets marshalled against - ib. where liis right saved in cases of attainder - - - 274 younger brother's, &c., possession not his - - - 68 how liable to ancestor's debts ------ 270 HEIR OR HEIRS OF THE BODY OF AN ANCESTOR, how land is to descend under such a limitation - - 271 HERIOTS, how far affected by statute of limitations _ - 17 INDEX. 453 HOPE OF SUCCESSION, Page, in issue in tail cannot be barred by them - - 198 HUNDRED YEARS, wlien a bar - 150 HUSBAND AND AVIFE, See FEME COVERT. wife cannot continue her husband's adverse possession - 58 conveyance by, wife's right under statute of limitations - 87 where protectors of a settlement - _ _ _ 202,211 where his concurrence may be dispensed with - - 243 can bar his wife's dower ______ 263 IDIOCY, saving for in statute of limitations - - - - 71 ILLEGITIMACY, its effect on descents 268 INCORPORATION, papers may be incorporated by reference in a will - - 339 INDENTURE, need not be indented ---____ 286 who may take under an - - - - - - - ib. INFANTS, saving for in old statute of limitations - - - _ o the new statute - - - _ _ 71, 135 legatee, time will run from age of twentj^-one - - 127 tenants in tail to convey estates sold for debts - - 206 trustees or mortgagees, how estate is to be conveyed, 388, 390, 401 infant's money to be paid into court - - _ 399 barred of dower, by jointure _ - - - _ ^. 255 cannot make a will -------- 306 INITIALS of witnesses to will, where valid - - - - 330 INTEREST, what cases payable under 3 & 4 Will. 4, c. 43 - - 137 arrears of six years only can be recovered - - _ 133 extends to judgments -=.-___ 134 provision in 3 & 4 Vict. c. 105, s. 26, subject to statute of limitations --------- 135 INTERLINEATION IN WILL, where operative - - - 347 INTERRUPTION OF ENJOYMENT, its effect on claim to easements - - - - - 107 from natural causes, inoperative - - - - - 109 IRELAND, operation of substitution for recovery act - - 249 ISSUE, where a lapse is prevented if issue of the devisee survive, 383 ISSUE IN TAIL, cannot bind hope of succession - - - - - 198 not bound by contract of tenant in tail - - - - 19c no lapse of devise in tail if issue survive - _ - 333 G G 2 4.54 INDEX. JOINT TENANTS, Page, possession of one, not possession of eompanion - 00, 108 each, protector of his own share . _ - - - 202 operation of (he will of a joint tenant - - - - 30-3 .loiNTi'iiJ:, effect of eviction of, under old law ----- 2-53 equitable, what amounts to ----- - 254 infants Jtarred hy -------- 25"i JUDGMENTS, barred by twenty years - . - - - - -110 new riglit by revivor on se' - _ - 119,140 but not on action of debt upon judgment - - ib. wliere one judgment creditor may avail himself of a l)ill filed by another - - - - - - - -119 liarred by time, although personal estate only - - 120 interest on, recoverable for six years only - - - 1,34 LAPSE, presentation by Crowu or ordinary on, adverse to patron 140 in devises where they fall into residue - - - 007, 308 devise of estate tail does not lapse if issue survive - - 383 to issue does not lapse, if issue of the devisee survive 384 LEASE FOR A YEAR no longer necessary - - - - 2'^ri LEASES, nonpayment of rent under a lease, no bar - - .32,44 when it bars power of re-entry - - - - 41 what can ])e made by committee of lunatic tenant in tail 2:»9 what leases ])y tenant in tail are exempted from inrol- nient - - - - - - - - - -213 must be by deed, where ------- 289 surrender or merger of reversion, next estale to he the reversion ------__- 287 act for shortening -----__ 285 n. void, under powers, where made good - - - 295, 297 LEAVE asked, its effect on claim to easements, &c. - - - 107 LEGACY, becoming a trust fund ------- 104 when barred by time ------ loo, 110 no saving for disabilities as to interest of legacy « - 135 legacy out of personalty is within stat. of limitations, 100, 120 right to in remainder saved until particular interest ceases ---------- \2Ct olditerated, but substitution intended which fails, no re- vocation --------- 347 specific, when adeemed ------- [565 general charge of, does not include legacies by unattested codicil -----,,,,- gjQ INDEX. 455 tEGAL ESTATE, Page. not ill tenant to the iirrecipe, yet recovery valid - - 185 LEGATEE, pecuuiiiry, not entitled to marshal assets against licir who is devisee _----__-- -270 LESSEE not protector, when -201, 20:» LESSOR, may recover at the end of term, althougli rent not paid for twenty years --------47 unless paid to wrongful claiiiuuit - - - - ib. exception in favour of lessors wiiere the lease is at no rent, or at one under 'iOiV. - - - 48 LETTERS, as an acknowledgment, how to be construed - - - 113 where they amount to an acknowledgment - - - \-2d valid, though written by an amanuensis - - - 130 LICENCE in the case of easements ------ 177 LIEN, barred by twenty years - - - - - - -IIG vendor's lien not an express trust, and burred - - I'iO LIGHTS, right of, where established by time - - . Kij, 17,3 must be enjoyed as an easement to establish claim - IGU LINEAL ANCESTORS, how they take under the statute , „ - - - 272 LOED CHANCELLOR, where the protector of a settlement - - - -JOG, 208 where he will consent ------ -JOS what leases he may consent to - - - - - -09 power over estates in lunatic or infant trustees or n)ort- gagees ---------- 388 LUNACY, saving for, in statute of limitations - - - - 71 not for arrears of rent, &c. ----- 144 LUNATIC, a protector of a settlement, Lord Chancellor acts - - "iUO where his consent will be given - . - - -jns husband, his concurrence may be dispensed with - - •-243 cannot make a will _-_---- 308 trustee or mortgagee, how estate is, to be conveyed - 388 MARGIN or "WILL, signp.ture in, invalid - - - - 313 MARKSMAN, mark by testator valid, though not a marksman - - 332 witnesses to will may be marksmen - - - - 330 mistake in name of, not fatal - - - - • - jb. Ci G 3 4j(j INDEX. Page. MARRIAGE a revocation of a will ------ 342 MASTER IN CHANCERY, his power under trustee act of 1850 _ - - - 417 MERGER, of attendant terms under new law ----- 287 of reversion on lease, next estate to be the reversion - ib. MINES, reserved, right not barred by twenty years' non-user - 31 render in specie, time runs from last receipt of produce - 64 MISTAKES, in name of testator, effect of ----- - 332 in names of witnesses to will, effect of - - - - 336 MODUS, where established by time ------ 151 what is not a--------- 153 how to be pleaded -- - - - - - - 157 MONEY, secured en land by tru^t, right to, when barred - - 104 secured by mortgagor, ?;c. on land, twenty years a bar - 116 infant's money under trustee act to be paid into court - 390 application of surplus money under 1 Will. 4, c. 47 - 394 MONEY TO BE LAID OUT IN LAND, power of tenant in tail over ------ 237 power of married woman over ----- 39 MORTGAGE, amounting to an acknowledgment of title - - 69, HI effect of recital of, in a later deed - - - 70 n. money, barred by twenty years - - - - - 116 and interest recoverable only for six years - - 143 by tenant in tail, how far an absolute bar of estate tail &c. _ 198 remedy against estate, where mortgagee is dead, under trustee act of 1850 ------- sqq not to escheat or be forfeited except as to beneficial in- terest 401-404 where it may be made under 2 & 3 Vict. c. 60 - - 393 MORTGAGEE, his right to recover the money is under s. 40 of the stat. of limitations ------- 05 to recover the land under s. 2 - - - - - 24 time runs from the date of an absolute mortgage - 25 may recover within twenty years of last payment - - 28 or from acknowledgment in writing - - ib. also tenant for life of land, time does not run - - 28, IH INDEX. 457 MORTGAGEE— continued. Page, legal mortgagee may file foreclosure bill under new stat. of limitations -------- 98 MORTGAGOR, excepted out of s. G in stat. of limitations, as to tenancy at will 56 when barred by possession of mortgagee - - - 109 no saving for him - - - - - - - -111 NEW RIGHTS, cannot be created after time begins to run - 35 NON-CLAIM, title under it, forced on a purchaser - - 11 NOTICE, of voidable estate confirmable under 3 & 4 "Will. 4, c, 74, 196, 197, 246 effect of notice to subsequent purchaser of copyholds under that act ------ - 229 in the case of bankruptcy ------ 234 OBLITERATION, in will where effective - - - - 347 OPTION TO PURCHASE, its effect on owner's previous devise _ - - - 356 ORDER OF COURT OF CHANCERY, under trustee act of 1850, allegations therein, evidence - 397 PARTITION, except of copyholds to be by deed ----- 286 does not imply any condition in law - - - - ib. after decree for, parties to suit may be declared trustees - 394 PAYMENT, of principal or interest, acknowledgment of - - 28, 29 time runs from last payment of mortgage money or in- terest 28 time runs from last payment of rentcharge - - - 34 whether it keeps collateral security alive _ _ _ 127 PEDIGREE, how to be traced under new law - - 279 PENCIL, will written in, revoked by rubbing it out - - 346 PERMISSION, asked in the case of easements, effect of - 167 PERPETUITY - 285 n. PERSON, what it means in new statute of limitations - - 15 PERSON LAST ENTITLED, where time runs from his death 18 PETITION, providing by under trustee act, 1850 _ _ - - 417 postponement of order until right declared in suit - ib. PITS OF CLAY, &c., what passes by devise of - - - 366 PLEA, of enjoyment of easements, evidence under - - - 179 G G 4 458 I N D E X. PLEADING, Page, of statute ol'liiiiitalioiis ------- 145 ill the case of e;iseineiits ------- 17G PORTIONS, not barred, whilst term to secure them is not 41, 105 POSSESSIO FllATRIS, fibolished 275 POSSESSION, sixty years, under old law ------ 3 when time begins to run against estates in possession 17, 18 will bar, although not adverse ----- "24 may be shown to have been in fact as tenant - - - 27 '• discontinuance of possession," what it means in statute 31 of land, no bar to right to mines reserved - - - ili. without title, good against party barred by time - - 35 of younger brother, &c. not possession of licir - - (58 what amounts to adverse ----- 78, 80 of tenant in will, where time runs ----- 82 by prior creditor no bar to later ones - - - _ 141 POSSIBILITY, may be conveyed by deed . - - - -266 POST OBIT, when time runs against it - - - - - l-i> POWER, executed by will, jiow to be attested - - - - 3U9 general, executed by general devise . - - - 36l> to survivor, how far it may be exercised ))y will - - ib. where barable by tenant in tail - - - - igi^ 194 estate created Tinder, part of settlement - - - - 217 feme covert may suspend or extinguish her power - - 242 void leases under, where aided ----- 295 lease prematurely granted under power valid if lessor live to jieriod appointed __---- 297 infant cannot execute power by will - - - - 306 married woman may do so ----- - 307 appointment l)y will under, to he executed as a proper ■^vill --- 309 where a devise to issue under a power may lapse - - 385 POWER OF RE-ENTRY, after non-payment of rent for twenty years, lessee can- not re-enter --------_ 40 but may recover the land at the end of the term 40, 47 POWER TO APPOINT NEW TRUSTEES, construction of it ----_-.. 498 meaning of " surviving or continuing " trustee - - 409 to executors, devolves on those who act "- - - - 410 what words give a continuing power - - - . ib. wliere there are several classes of trustees - - - 411 effect of l»ankrui)tcy or residence abroad - - . 412 r age. 412 - 415 - 410 . 151 - 1(50 s - 118 - 163 - 312 - 45 - 100 200, , 217 201, ,218 •301, , 218 20o. , 224 INDEX. 45D POWER TO APPOINT NEW TRV^TEES—contiHual "wliat iminber of trustees may be appointed where the Court makes the appointment - Court cannot delegate its poAver _ - - - PRESCRIPTION, time shortened in the case of tithes _ - - and in the case of easements . - - - PRESENT RIGHT, to receive money ; statute of limitations PRESUMPTION, excluded in claim to casements, &c. - PRINTED FORMS OF WILLS, how to be executed - PROFITS, do not mean rent in statute of limitations PROFITS A PRENDRE, right to, where barred by time PROTECTOR, his power ---___>_ by estate -.--____ who is such -._._._ by office or appointment ------ where Court of Chancery will not appoint a protector in settlement -----_-_- 205 where trustee protector ------ 206, 219 who may be--------- 224 may sell his interest, yet retain his poAvor - - 204, 222 his place siipplied where treason, felony, infancy, lu- nacy, &c. 206 where his concurrence is necessary - _ . - oqq power not controllable ------ 210, 225 exercise of power not a breach of trust - - - _ jb. cannot revoke his consent - - - - - -211 how to give his consent ------- 212 defective consent by, cannot be aided - - - - 214 assignee excluded -------- 220 where Lord Chancellor or Court the protector - - 225 consent by feme covert, Avhere protector - _ _ 242 PUBLICATION, of will unnecessary 309 PURCHASER, let into possession, where tenant at will - - - - 58 mortgagee purchasing life estate in equity of redemption, time does not run - - - - - - -lU what inquiries should be made on jjurchase of ease- ments, &c. - - - - - - - - -ISO what should be required in purchasing of tenant in tail - 226 what in(|uiry slioidd I)e mode as to doAver . _ - o(;,3 entitled to Avliat evidence on descents - - - _ 208 voidable fee in purchaser confirmed by subsequent act of tenant in tail, Avherc ------ 19(J, 246 or by subsequent act of commissioners of bankrupts 234 eftect of notice in such cases - - . - 107^ 234 460 INDEX. PURCHASETl—coiianucJ. Page, subseqiieut purcliaser of copyholds prcibrred, where - 229 effect of enrohnent as between purchasers _ - _ 245 compelled to take a title resting on non-claim - - 11 purchase-money not paid, and right of vendors not ascer- tained, time does not run -_._-- 99 QUARE IMPEDIT, not abolished ---------10 within w^liat time to be brought ----- 149 QUARRIES AND LIMESTONE LAND, within statute of limitations ------ 17 QUASI ENTAILS 215, 376, 383 must be barred before devise ------ 365 RECEIVER, effect of appointment on statute of limitations - - 101 RECOVERIES, of lands in ancient demesne in superior courts, valid - 183 in courts without jurisdiction, valid _ . - _ 184 errors in, cured -__---__ jb. valid, although bargain and sale not enrolled - - ib. although legal estate not in tenant, where - - 185 abolished ----_-___ 186 RELATION of heir, his possession not that of heir - - 68 REMAINDERMAN, when time runs against - - - - 42, 51, 107, 126 what is a recovery under section 20, to save the remainder, 50 barred by time where tenant in tail barred - - - 89 may be barred by time, where there is a grantee under imperfect assurance by tenant in tail - - - - 90 REMEDY, only barred by old statute of limitations - - . 1 but now the right is extinguished - - - - 1 1 RENT, non-payment of rent, or wrongful payment to anollier, no ouster under old law -------g non-payment under ne^v act no bar - - - 32 63 what it means in new act - - - - _ 15 31 riglit to re-enter for non-payment, Avhen barred - 21, 48 paid to annuitant, time does not run against lessor - 65 acceptance of rent, where a confirmation of void lease under power ------__ 300 arrears of six years only recoverable - _ - 13.3 144 to wluit the statute of limitations extends - _ - 61 non-payment of, by undertenant immaterial - - - 65 under lease, secured by covenant, remedy when barred - 138 INDEX. 461 RENTCHARGE, Paoe. by -will, within second section of statute of limitations 19, 85 time does not run whilst rent paid - - - - -29, 148 but runs from last payment ----- 34 rent i>aid by tenant in discharge of it, time does not run against lessor --------65 secured by covenant, remedy for, when barred - - 140 REx\T SERVICE, what is ---------- 61 keeping grindstone for parish is not - - - - ib. REPUBLICATION, of will made under a disability ----- 308 effect of, where will made before the late act - 303 n. 351 "where a codicil ojierates as a- - - - - - 339 operation of will republished ----- 350, 351 RESERVATION, of mines ; right not lost by non-exercise for twenty years 31 RESIDUE, a legacy within statute of limitations - - - 126 RESIDUARY DEVISEE, takes lapsed or void devises ----_. 3(37 share of a tenant in common in residue, lapses - - ib. RESULTING USE OR TRUST, estate by way of, may consitute a protector of the settle- ment ---------- 201 REVERSION, when time runs against a reversion - - 42, 43, 51, 59 barred by time when particular estate in same person is barred --------- 43, 48 surrender or merger of reversion on lease, next estate to be the reversion -------- 287 REVIVAL, of revoked will 348 REVOCATION OF WILL, by marriage, where -------- 342 not presumed from alteration in circumstances - - 343 by another will, or by burning, tearing, or destroying - ib. or by cutting -------- 345 in pencil, by rubbing it out ------ 345 not by cancellation, where ------ 34(3 by obliteration, where ------- 347 not by conveyance or change of estate - - - - 352 RIGHT OF ENTRY, when barred ------- --jg for non-payment of rent, barred after twenty years - 41 may be transferred by deed ------ 286 confers a right to dower ------- 262 SATISFIED TERMS OF YEARS, where they cease - - 287 462 I N D E X. SAVINGS, Page, under the olil t'latuie ul'liini(atioiis - _ _ - _ i under the new act ------- 10, 71 ten years ; forty years ------ ih. wlien time begins to run ------ 72 none for mortgagors - - - - - - -111 phices not deemed beyond, in statute oi linutiitions - 70 absence beyond, rights saved ------ 71 SEISIN, not required in first purcliaser, in descents - - ~(5H, 275 SEPARATE ESTATE, wife may be protector in respect of - 202 SETTLEMENT, cannot create new riglils after time begins to rim - - 3.j SETTLOE, may appoint a i)rotcctor of settlement - - - 204 SIGNATURE, by whom acknowledgment is to be signed to prevent time running ---------69 what is a valid, by testator at the foot or end of the will 311 of testator, cut from will, a revocation - - - _ 345 by blind person -------- 3.31 by attesting witness, for testator valid - - - - 33-2 l)y testator, Iioav to be acknowledged to witnesses - ib. 33i a mark by testator valid ------- 332 so by witnesses -------- 33G one witness cannot sign for another - - - - ib. but may guide his hand ------ ib. where initials of witnesses are sufficient - - - - 330 SIXTY YEATIS' TITLE, under old law ---------3 where a bar in the case of tithes ----- 1,51 where a bar in the case of profits a prendre - - - Kji SPECIEIC PERFORMANCE, of contract by tenant in tail ------ 105 after decree for, parties to suit may be declared trustees - 391 SPIRITUAL COURT, statute of limitations extended to - 150 STATUTE DEED, its operation on estates tail, &c. - - 187 STATUTE OF LIMITATIONS, the operation of the old law ------ 1 title under it --------3 actions abolished by the new law ----- 10 savings in new law --------ib. descenis cast, dismnlinuanpo or warranty, do not defeat right of entry --.-.__. j|j_ continual claim does not save right of entry - - - 11 time run before act passed, counts ----- 12 right extinguished by new act ----- 11 entry to be within twentv rears ----- JO INDEX. 463 STATUTE OF LIMITATIONS— rr)»/;«»f^/. Page, ejectment the remedy - - - - - - -17 wlien time begins to run, where tlicre \v;ts a [K)!^.se!^^iull - - - - - 18 in the elaimaiit ------- ib. in a deceased person ------ ib. in a grantor - - - - - - - i'>. time runs against an annuitant nnder a will - - 10 mortgagee's right within twenty years after last pay- ment ---------28 when time begins to run wher^ there is a reversion, where no possession ------ 42 where title by forfeiture, Sv.c. ----- ib. effect of previous possession ----- 4-1 several rights in one person barred - - - - ib. tenant at will, when right against him accrues - - 54 tenant from year to year, &c. by parol, when right against him accrues -------- ib, 00 tenant under lease at a rent of 20 5. or more, paying- vent to wrongful claimant, when lessor's right accrues 02 disabilities, infancy, &;c. allowed ten years - - - 71 but not beyond forty years ----- jh. adverse jjossession not necessary ----- 77 time (forty years) runs against feme covert, where - 79, 88 effect of bar of tenant in tail ------ 89 base fees created before act, how affected - - - 93 voidable fees, how affected _----- 9.j suits in equity the same as actions ----- 97 express trust, time runs from purchase for value - - 102 concealed fraud, time runs from what ])eriod - - - ib. but purchaser without notice not aifected unless party to fraud --------- i!i. mortgagor, where barred .__--- 109 money, legacies, &c. when barred - - - - - 104 dower, rents, interest, when barred _ - - 1,32, 1.j3 arrears of annuity, when barred ----- i,34 of rent, when barred - - - - - - 138 arrears of interest not barred whilst a prior incumbrancer in possession __-----" 141 church property and advowsons, when barred - - 147 moduses and exemption from tithes, when established, - I.jI rights of common, of way, lights, &c., when Ijarred - lo9 STOCK, in lunatic as trustee or mortgagee, how to be obtained - 399 in trustee out of jurisdiction, the like _ _ - - .39> in trust or mortgage, iiot forfeited excejit as to beneficifil irrterest --401 4G4 INDEX. SUIT IN EQUITY, Page, confined to same time as action ----- 97 what proceedings in, amount to an acknowledgment - 131 SURRENDERS, by husband and wife of equitable estates in copyholds - 243 not of copyhold to be by deed, where - - _ _ oyg surrender of reversion on lease, next estate to be the reversion ----____> 287 SURVIVOR, power by will to, may be exercised before the event - 370 of trustees not known, power of Court under trustee act, 1850 390 power to, includes a continuing trustee - - - - 409 TEARING A WILL, a revocation 343 TEN YEARS, where a bar under savings in statute of limitations - 71 TENANT AT WILL, cestui que trust in possession is to his trustee - - - 38 when time begins to run in his favour - - _ 54,82,84 whether there can be a continuous tenant at will - - 55 when he becomes tenant from year to year - - - 56 his possession no bar where not in possession at time act passed ----------50 when the Avill is not determined and time runs - - 57 purchaser in possession where tenant at will - - - ib. may create a tenancy at will against himself - - - 58 person coming in under, not tenant at will to original lessor without his assent --_--_ ib. converted by lessor's act into tenant by sufferance, time continues to run --------59 what acts are an acknowledgment a man holds as tenant at will ---------- ib. TENANT BY SUFFERANCE 59 TENANT BY THE CURTESY, may be protector of a settlement - - - . . 2OI TENANT FOR LIFE, of the land and also mortgagee of the fee, time does not run --_--_____ 28 effect of acknowledgment by tenant for life of equity of redemption ---------29 paying off a charge, time does not run - - _ - 125 his deed has only an innocent operation - - - - 195 may convey the lee under 1 Will. 4 _ _ _ . 393 exercise of easement during tenancj' for life « _ - 174 INDEX. 465 TENANT FROM YEAR TO YEAR WITHOUT LEASE, Page, when tenant at will becomes ------ 56 when new tenancy arises from j^ear to year - - - 61 when time runs in his favour ------ 60 TENANT UNDER LEASE AT 20 s. RENT OR MORE, paying rent to wrongful claimant, where time runs against lessor 62, 64, 84 TENANT IN COMMON, possession of one, not the possession of the other - •■ GQ where one is answerable for profits to the other - - 108 each protector of his own share - - - - - 202 under a residuary devise his share may lapse - - 369 TENANT IN TAIL, barred by time, issue and remainder-man barred also, 89, 150 time allowed to him, not extended by his death - - ib. imperfect assurance bj^, time runs for grantee against remainder-man --------90 this provision not retrospective - - _ - ib. voidable estate under, in favour of purchaser where enlarged by time, &c. ------ 93, 95 contracts by - - - - - - - - - 195 who is deemed such ------ 181 n. power to acquire the fee ----- 187, 209, 216 against whom disposition valid - - - - ib. in contingency, his pov/er ------ 188 where he can bar a power ------ 191 or a shifting clause ------- 193 owner of prior estate may consent without conveying - 194 may create an estate or charge _ - - . - 195 contracts by, void under the act against issue, &c., but may be enforced against himself ----- ib. voidable fee in purchaser confirmed by subsequent act - 196 but not against purchaser without express notice - 197 base fee maj^ be enlarged -..-__- ib. where it is enlarged ipso facto ----- 199 partial dispositions by, their operation . - - - 198 protector's power, &c. ------ 200-224 by what deeds estates tail are to be barred - - - 211 husband of, must concur ------- 212 deeds to be enrolled ----___ 213 leases excepted, where ------ ib. equity cannot relievo against defect - - - _ 214 base fee created not under act ----- 215 of copyholds, his power ------- 227 priority of subsequ.ent purchaser witliout notice - 229 4GG INDEX. TENANT IN TAII continued. Page. where bankrupt, power in commissioner to bar entail - 231 provisioiis in favour of purchasers - - - - 232 of money entailed, his power ------ 237 how deeds are to Ije enrolled^ &e. ----- 238 of estates in Ireland, his power . _ - _ _ 247 tenant in tail, or qva^i in tail, cannot devise - - - 30-5 TERMS or YEARS, do not constitute a protector of a settlement, where, 201, 202 TERM, ATTENDANT ON INHERITANCE, whilst cestui que tnist in possession, time does not run against trustee - -- - - - - -3fi where it ceases -______- 287 THIRTY YEARS, when a bar - - - - - - 151, 100 TIMj; twenty years to bring action, kc. ----- IG when it begins to run upon possession - - - - 17 runs against a mortgagee ----.._ 04. a mortgagor - - - - - -109 tliere must be an available right of entrv - - - 2-5 runs against rentcharge from last payment - - - 34 (if remainder-man extended to persons claiming under his settlement - - - - -•- - - -35 when it runs against remainder-man, &,c. - - - 42 in favour of a tenant, in will - - - 54 of a lessee without lease - - GO against express trusts, when - - - 102 money secured l)y mortgage, &f'. of land ■..._.. iiG continuing trust or security, time no bar - _ - 124 Imw saved by payment of part of principal or of interest 127 how it runs on claim of easements, &c. - - - - 172 TITHES, meaning of word in new statute of limitations - - 16 )night still be recovered as cliattels ----- ib. enjoyment of, for prescribed time, a discharge - - 153 effect of nonpayment of, for twenty years - - - 154 composition for, where binding ----- 15G ■what time is to be excluded - - - _ _ H,. savings for disabilities ------- jb. certain demises and compositions - - - 158 TITLE depending on non-claim, forced on purchaser - - 11 TRANSFER, of mortgage, Avhere it is an acknowledgment opening time - - - - - - - - - -111 TRUST ESTATES, remedy ao-ain^t under trii«fee act of 1850 - 387 Index. 46^ TRUST, Page, express, how created - - - - - - -104 where barred - - - - -- - - 102 TRUSTEES, when. barred by possession of cestui que trust under old law ----.-_-- -5 not barred by it under new law - - - - - 36 whilst trustees not barred, cestuis que trust are not - 41, 102 upon express trusts, when time runs - - - - 102 where a trustee may acknowledge a debt _ - - 129 where the protector of a settlement - - 206,219,223 take the fee by devise, where - - . - - - - 372 infant, how estate is to be conveyed - - _ - 388 out of the jurisdiction, or the like, power of Court over estate ----- 390 survivor not known, or whether living or dead, or heir not known, like power ___--_ ggj refusing or neglecting to convey, &c., like power - - 392 who are, or may be declared so, after a decree - 392, 394 decree against them in absence, where - - - _ 39(5 where the Court of Chancery can appoint new-ones - 404 where they can be appointed under powers - - - • 408 what number of trustees may be ai3pointed - 412, 415 the Court will appoint more than the original number 415 who may apply under trustee act of 1850 _ _ _ 415 TURNPIKE TOLLS, not within statute of limitations - 17, 133 TWENTY YEARS, when a bar - - - 16,97,161,162 UNBORN PERSONS, how affected by trustee act of 1850 - - - 391,394 UNDER TENANT, nonpayment of rent by him, immaterial - 65 UNITY of seisin or possession, its effect on claim to easement - 167 UNSOUNDNESS OF MIND, saving for, in statute of limitations - - - in trustee or mortgagee, how conveyance is to be obtained, VENDOR, his lien barred by twenty years VESTING ORDER, under trustee act of 1850 VOIDABLE FEE, how affected by new statute of limitations created by tenant in tail, where confirmed not against purchaser without express notice WARRANTY, does not defeat right of entry - WASTE, equitable within new statute of limitations WATER, right of, when established by time - H H - 71 .ed. 388 116; ,126 388, 390 _ 95 - 186 - 197 - 11 - 99 - 161 468 INDEX. WAY, RIGHT OF, Page. when established, by time ____-.- 161 cesser of user, when a bar - - - - - - 174 WIDOWS. See Dower. Feme Covekt. WILL, what wills are not affected by the new act - - - 303 who cannot make a will ------- 306 informally executed, where confirmed by a codicil - 339 how to be executed ------- 308 publication of, unnecessary - - - - - - 309 Avitnesses to - - - - - - - ' - - ib. what is a signature by the testator at the foot or end of the will --- 311 revocation of-------- 342, 352 . alterations, &c., of, where operative - - - 341 ^ 347 revival of revoked will ------- 348 republished, how it operates ---..-- 350 WITNESSES TO A WILL, two witnesses required ------- 309 no objection to more than two ----- 334. may sign for testator _--_--- 332 marksman, a good witness ------ ib. both witnesses must see the signature " - -. - 334 who is a good witness to will ------ ib. must sign in constructive presence of testator - - 337 may sign on any part of the paper ----- 338 no form of attestation is necessary ----- ib. how they are to subscribe ------ 335 WORDS EXPLAINED, in new statute of limitations ------ 14 in substitution for recoveries act ----- isi in dower act - - - - - - -•- - 261 in inheritance act -------- 266 in will act -_--_---_ 304 in trustee act of 1850 ---__-. 339 WRONGDOER, not a trustee 101 YOUNGER BROTHER, his possession not that of heir - - 68 LONDON: PRINTED BY HENRY HANSARD, NEAR LINCOLN'S-INN-PIBLDS. A. SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES AA 000 836 056 2 University of California Library Los Angeles This book is DUE on the last date stamped below. LAW LIBRARY Jb ill 1 nmmi^ ' ' 1- ■ "'■! j