recovery. 4. By confirmation: and 5. By release with warranty. A grant 3 & 4 Will. 4, by deed or fine, of such things as lie not in livery (Litt. s. 618; Co. Litt. c. 27, s. 43. 332 a), did not work any discontinuance. A feoffment made after 1st October, 1845, has no tortious operation (Real Prop. Act, 1845, s. 4, post).

A discontinuance of an estate tail could only be made by a tenant in tail in possession (Doe v. Jones, 1 B. & C. 243; Trevilian v. Lane, Cro. Eliz. 56; see 1 Rep. 76 a; Litt. s. 658; Co. Litt. 325 a). But the existence of a term of years prior to the estate of a tenant in tail did not prevent a fine levied by him from operating as a discontinuance (Doe v. Finch, 1 Nev. & M. 130). As to a prior estate by the curtesy, see Anderson v. Anderson, 30 Beav. 209; see further the notes to Doe v. Finch, sup., where much learning on the subject of discontinuance, &c. is collected (S. C., 4 B. & Ad. 283). As to discontinuance, see Bac. Abr. and Com. Dig. Discontinuance; Co. Litt. 325 a; 347 b, and notes by Butler; Roscoe on Real Actions, 43-53; 1 Prest. on Conv. and on Abst. Index; Roper on Husband and Wife, c. 2, s. 2; Doe v. Ross, 7 M. & W. 125.

(h) As to the law of warranty, see Com. Dig. Guaranty; Co. Litt. 365 a; Warranty. 393 b, and notes by Butler; Bac. Abr. Warranty; Shepp. T. 181-203; Doe v. Jones, 1 Crompt. & Jerv. 528. By Fines and Recoveries Act, 1833, s. 14, all warranties of lands which shall be made after the 31st December, 1833, by any tenant in tail thereof, shall be absolutely void against the issue in tail, and all persons whose estates are to take effect after the determination or in defeasance of the estate tail (see post).

[Sections 40, 41, 42 of this act are inserted pp. 190, 200, post.]

12. Limits of the Act.

ritual courts.

43. No person claiming any tithes, legacy or other property, Act to extend for the recovery of which he might bring an action or suit at to the spilaw or in equity, shall bring a suit or other proceeding in any spiritual court to recover the same but within the period during which he might bring such action or suit at law or in equity.

The mode in which personal legacies were recovered in the ecclesiastical courts is stated in 3 Ĥagg. Eccl. R. 161, 162. By the Court of Probate Act, 1857, s. 23, the Court of Probate, to which the jurisdiction of the ecclesiastical courts has been transferred, shall entertain no suit for legacies.

Scotland nor

44. Provided always, and be it further enacted, that this act Act not to shall not extend to Scotland; and shall not, so far as it relates extend to to any right to permit to or bestow any church, vicarage or to advowsons other ecclesiastical benefice, extend to Ireland.

The provisions of the R. P. Lim. Act, 1833, relating to advowsons, &c., were extended to Ireland by Grand Juries (Ireland) Act, 1843, and 7 & 8 Vict. c. 27, and the words of this section excluding Ireland have been repealed (S. L. Rev. Act, 1874). See 32 & 33 Vict. c. 42.

in Ireland.

* Lege present.

This act applies to New South Wales (Day v. Day, L. R. 3 P. C. 751; The colonies. Trustees Co. v. Short, 13 App. Cas. 793); and to New Zealand (Plimmer v. Wellington, 9 App. Cas. 708), but does not apply to Jamaica (Pitt v. Dacre, 3 Ch. D. 295). Where a Hindoo banker claimed as a creditor in an English administration action, the English statute applied (Finch v. Finch, 35 L. T. 235). But the Indian statute was held to govern the case of

3 & 4 Will. 4, c. 27, s. 44.

money in an English court representing land in India (Re Peat, 7 Eq. 302). As to which statute, see also Hay v. Gordon (21 W. R. 11). See also the questions raised as to bonds charged on the revenues of Oudh in Doss v. Secretary, &c. of India (1875, W. N. 59); and as to the Bombay Civil Service Fund, in Edwards v. Warden (1 App. Cas. 281). By the law of Lower Canada, the period of prescription is thirty years (Herrick v. Sixby, L. R. 1 P. C. 436; Macdonald v. Lambe, Ib. 539; see Labrador Co. v. The Queen, 1893, A. C. 104). As to adverse possession in Nova Scotia, see Des Barres v. Shey (22 W. R. 273); and in Ceylon, see Clark v. Elphinstone (6 App. Cas. 164). See as to the period of limitation in New Brunswick, Lewin v. Wilson, 11 App. Cas. 639.

No land or rent to be recovered but within twelve

years after the

THE REAL PROPERTY LIMITATION ACT, 1874, ss. 1-7, 9, 11, 12. 37 & 38 VICT. c. 57.-An Act for the further Limitation of Actions and Suits relating to Real Property.

[7th August, 1874.]

1. After the commencement of this act no person shall make an entry or distress, or bring an action or suit, to recover any land or rent, but within twelve years next after the time at Which the right to make such entry or distress, or to bring such right of action action or suit, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same.

accrued.

Provision for

By sect. 9 of this act the above section has been substituted for R. P. Lim. Act, 1833, s. 2 (ante, p. 122, where see note). Under the same 9th section, the provisions of R. P. Lim. Act, 1833 (except the repealed sections, but including the provisions substituted for such repealed sections), are to be construed together with this act. Accordingly the word "rent" in the present section (interpreted in accordance with sect. 1 of R. P. Lim. Act, 1833) was held to include an annuity charged upon land by deed (Hughes v. Coles, 27 Ch. D. 231), and interest on land tax redemption money charged on land by statute (Skene v. Cook, 1902, 1 K. B. 682). The period of twelve years prescribed by the present section as the period of limitation has been applied in the case of tenancies at will (Sands to Thompson, 22 Ch. D. 614; Brighton v. Brighton Guardians, 5 C. P. D. 368); of the past instalments of an annuity charged on land (Hughes v. Coles, 27 Ch. D. 231; see Skene v. Cook, sup.); and of ordinary adverse possession (Bobbett v. S. E. R. Co., 9 Q. B. D. 424; Bevan v. London Cement Co., 67 L. T. 615; Marshall v. Taylor, 1895, 1 Ch. 641; Midland R. Co. v. Wright, 1901, 1 Ch. 738).

2. A right to make any entry or distress, or to bring an case of future action (a) or suit to recover any land or rent, shall be deemed to have first accrued in respect of an estate or interest in rever

estates (i).

c. 57, s. 2.

Time limited

to six years when person

possession, &c.

sion (2) or remainder, or other future estate or interest, at the 37 & 38 Vict. 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, notwithstanding the person claiming such land (7) or rent, or some person through whom he claims, shall at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such lands, or in receipt of such rent (k): But if the person last entitled to any particular estate on which any future estate or interest was expectant shall not have been in the possession or receipt of the entitled to the profits of such land, or in receipt of such rent, at the time when particular his interest determined, no such entry or distress shall be made, estate out of and no such action or suit shall be brought, by any person becoming entitled in possession to a future estate or interest, but within twelve years next after the time when the right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent, shall have first accrued to the person whose interest shall have so determined, or within six years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of those two periods shall be the longer, and if the right of any such person (7) to make such entry or distress, or to bring any such action or suit, shall have been barred under this act, no person (m) afterwards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will, or settlement, executed or taking effect after the time when a right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent, shall have first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress, or bring any such action or suit, to recover such land or rent.

(i) By sect. 9 of this act the above section has been substituted for sect. 5 of R. P. Lim. Act, 1833; and the case of future estates and interests now depends upon the above section construed together with the fourth branch of sect. 3 and sect. 20 of R. P. Lim. Act, 1833, ante, pp. 130, 156 (Re Devon Settled Estates, 1896, 2 Ch. 567).

The language of sect. 5 of R. P. Lim. Act, 1833, has been repeated in the part of the present section which precedes (k), with the addition, however, of the following words in the following places, viz., at (a) “or suit"; at (8) or remainder or other future estate or interest"; at (7)" or rent."

66

Sect. 5 of R. P. Lim. Act, 1833, was held to apply only to cases where a person other than the reversioner was entitled to the particular estate (Doe v. Moulsdale, 16 M. & W. 689, see p. 698). The saving of the section was applied to a term to secure an annuity (Re Bermingham, I. R. 5 Eq. 147). Under R. P. Lim. Act, 1833, it was held, that upon the renewal of a lease the landlord's estate became an estate in possession within sects. 3 and 5 (Eccl. Commrs. v. Rowe, 5 App. Cas. 736, 741; disapproving of dicta in Corpus Christi Coll. v. Rogers, 49 L. J. Ex. 4). The rule is different where a valid underlease is subsisting at the date of the renewal (Eccl. Commrs. v. Treemer, 1893, 1 Ch. 166).

37 & 38 Vict. c. 57, 8. 2.

In cases of infancy,

coverture, or lunacy at the time when the right of

then six years

In the case of an equitable charge on a reversionary interest in land, time commences to run under this statute against the right to foreclose from the time when the interest falls into possession (Hugill v. Wilkinson, 38 Ch. D. 480; see Re Owen, 1894, 3 Ch. 220), and foreclosure may be granted although the personal remedy is barred (Ib., see Powell v. Brodhurst, 1901, 2 Ch. 167; and compare Barnes v. Glenton, 1899, 1 Q. B. 891). () The proviso which follows here did not occur in R. P. Lim. Act, 1833, s. 5. Where A., tenant for life, aliened, and the alienee entered, and seventeen years afterwards A. died, and the remainderman brought ejectment more than six but less than twelve years after A.'s death, the action was not barred. The proviso did not apply, inasmuch as the alienee and not A. was held to be "the person last entitled to the particular estate." And under the earlier part of the section the plaintiff had twelve years from A.'s death (Pedder v. Hunt, 18 Q. B. Div. 565).

By virtue of a settlement land was limited to A. for life, remainder to B. for life, remainder in fee to C., whose estate arose under the exercise of a general power of appointment vested in A. by the settlement. Possession by a stranger had barred A.'s title at his death in 1888. B. died in 1891 without having recovered possession. In 1896 it was held that C.'s title was not then barred, the case falling within the above proviso. The court declined to hold that sect. 1 of the Act of 1874 barred C. as being a person claiming under A., or to hold that the general power of appointment was another " right" of A. so as to bring the case within sect. 20 of the Act of 1833 (Re Devon Settled Estates, 1896, 2 Ch. 562).

(1) This seems to mean the person becoming entitled in possession to a future estate or interest.

(m) This provision seems intended to apply only to persons claiming under the person barred under the earlier part of the section.

The effect of R. P. Lim. Act, 1833, in the cases (1) where the owner of an estate in possession grants out of it a particular estate with reversion or remainders following, after time has commenced to run against him; (2) where the owner of an estate in remainder deals with it while time is running against him; and (3) where a tenant for life and remainderman deal with the estate while time is running against the tenant for life, is discussed Darb. & Bos. Stat. Lim. 318 et seq.

3. If at the time at which the right of any person to make an entry or distress, or to bring an action or suit, to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned, (that is to say), infancy, coverture, idiotcy, lunacy, or action accrues, unsoundness of mind, then such person, or the person claiming to be allowed through him, may, notwithstanding the period of twelve years, or six years, (as the case may be,) herein before limited shall have expired, make an entry or distress, or bring an action or suit, to recover such land or rent, at any time within six years next after the time at which the person to whom such right shall first have accrued shall have ceased to be under any such disability, or shall have died (whichever of those two events shall have first happened).

from the termination of the disability or previous death.

By sect. 9 of this act, sects. 3, 4 and 5 have been substituted for sects. 16 and 17 of R. P. Lim. Act, 1833 (ante, pp. 152, 155, where see notes). The saving of this section was applied in the case of Kennedy v. Lyell, 15 Q. B. D. 498. Where the statute once begins to run as against a tenant in tail, and at that time there is no disability on his part, it does not cease to run by reason of subsequent disability on his part or on the part of issue in tail claiming under him (Murray v. Watkins, 62 L. T. 796). See the cases under Lim. Act, 1623, s. 2, quoted ante, p. 153.

As to the disability of coverture, see now M. W. P. Act, 1882, s. 1, sub-s. 2; Lowe v. Fox (15 Q. B. Div. 667); Weldon v. Neal (51 L. T. 289; 32 W. R. 828). And for a case where such disability depending on the old law was alleged, see Hounsell v. Dunning, 1902, 1 Ch. 512.

37 & 38 Vict.

c. 57, 8. 4.

for absence

4. The time within which any such entry may be made, or No time to any such action or suit may be brought as aforesaid, shall not be allowed in any case after the commencement of this act be extended or beyond seas. enlarged by reason of the absence beyond seas during all or any part of that time of the person having the right to make such entry, or to bring such action or suit, or of any person through whom he claims.

See the notes to R. P. Lim. Act, 1833, ss. 16 and 19, ante, pp. 152, 156.

any

ance for

5. No entry, distress, action, or suit shall be made or brought Thirty years by any person who at the time at which his right to make utmost allowentry or distress, or to bring an action or suit, to recover any disabilities. land or rent, shall have first accrued, shall be under any of the disabilities herein before mentioned, or by any person claiming through him, but within thirty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such thirty years, or although the term of six years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired.

See the note to R. P. Lim. Act, 1833, s. 17, ante, p. 155. A claim was barred under this section (Hounsell v. Dunning, 1902, 1 Ch. 512). As to the application of the present section to money paid into court under the Lands Clauses Act, 1845, s. 79, see Ex p. Chamberlain (14 Ch. D. 323).

surance by a

not bar the

they shall be

end of twelve

6. When a tenant in tail of any land or rent shall have made In case of an assurance thereof which shall not operate to bar the estate or possession estates to take effect after or in defeasance of his estate tail, and under an asany person shall by virtue of such assurance at the time of the tenant in tail execution thereof, or at any time afterwards, be in possession or which shall receipt of the profits of such land, or in the receipt of such rent, remainders, and the same person or any other person whosoever (other than some person entitled to such possession or receipt in respect of barred at the an estate which shall have taken effect after or in deféasance of the estate tail) shall continue or be in such possession or receipt that period for the period of twelve years next after the commencement of at which the the time at which such assurance, if it had then been executed then executed, by such tenant in tail, or the person who would have been would have entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of twelve years, such assurance shall

years after

assurance, if

barred them.