Nature of

the lien.

Where a vendor delivers possession of an estate to a purchaser without 3 & 4 Will. 4, receiving the purchase-money, equity, whether the estate be conveyed c. 27, s. 40. (Chapman v. Tanner, 1 Vern. 267; Pollerfen v. Moore, 3 Atk. 272; and see 1 Br. C. C. 302, 424, and 6 Ves. jun. 483; Mackreth v. Symmons, 15 Ves. 329), and a receipt is endorsed on the conveyance (Coppin v. Coppin, 2 P. W. 291; 3 Russ. 488), or be not conveyed (Smith v. Hibbard, 2 Dick. 730; Charles v. Andrews, 9 Mod. 152), and although there was not any special agreement for that purpose, and whether the estate be freehold or copyhold (Winter v. Anson, 3 Russ. 488), gives the vendor a lien on the land for the money. The doctrine applies in the case of other property besides land, e.g., a share in proceeds of sale of leaseholds (Davies v. Thomas, 1900, 2 Ch. 462; see Levy v. Stogdon, 1898, 1 Ch. 478). But the application of the doctrine depends upon the intention of the parties (Re Albert, &c. Co., 11 Eq. 179).

Thus, where a vendor took a mortgage of part of the estate, his lien over When lost. the rest of the estate was held to be excluded (Capper v. Spottiswoode, Taml. 21); and where he took a mortgage of the whole estate for part of the unpaid purchase-money his lien for the balance was lost (Bond v. Kent, 2 Vern. 281; see 1 Sch. & Lef. 135). So there is no lien where the vendor takes a mortgage of another estate (6 Ves. 760), or a charge upon stock (Nairn v. Prowse, 6 Ves. 752); nor where the consideration for the conveyance was expressed to be the covenant for the payment of an annuity and a sum in gross in the event of the purchaser's marriage (Clark v. Royle, 3 Sim. 499; see Stuart v. Ferguson, 1 Hayes, 452; Parrott v. Sweetland, 3 M. & K. 655; Dixon v. Gayfere, 21 Beav. 118; 1 De G. & J. 655; Matthew v. Bowler, 6 Ha. 110; Buckland v. Pocknell, 13 Sim. 406); nor where land was purchased under the Lands Clauses Act, and the consideration was a yearly rent-charge (Jersey v. Briton Ferry Co., 7 Eq. 409); nor where the purchase-money of lands sold to a company was expressed to be payable out of moneys to be received by the company on sale of shares (Re Brentwood Co., 4 Ch. Div. 562); nor as against the mortgagees of the purchaser where vendor joined in the mortgage (Cood v. Pollard, 9 Price, 544; Smith v. Evans, 28 Beav. 59). For the lien in the case of purchases with trust money, see White v. Wakefield (7 Sim. 401); Muir v. Jolly (26 Beav. 143). Vendors were held to have lost their lien by permitting the purchaser to register his conveyance with a view to a sub-sale (Kettlewell v. Watson, 26 Ch. Div. 501; see Ex p. Parker, 1 Glyn. & J. 228).

The lien, however, may subsist notwithstanding a personal security is When not given for the money, whether by bill of exchange (Hughes v. Kearney, 1 lost. Sch. & Lef. 132; Grant v. Mills, 2 Ves. & B. 306; Ex p. Peake, 1 Madd. 346); or promissory note (Gibbons v. Baddall, 2 Eq. Cas. Abr. 682, n. b; Ex p. Loaring, 2 Rose, 79); or bond (Winter v. Anson, 3 Russ. 488; Collins v. Collins, 31 Beav. 347). Nor is the lien lost by an improper payment to the vendor's solicitors (Wrout v. Dawes, 25 Beav. 369).

The lien prevails against the purchaser and his heir; against volunteers Against whom claiming under him; against sub-purchasers with notice; sometimes it prevails. against sub-purchasers without notice (Rice v. Rice, 2 Drew. 85; Sugd. V. & P. 682, 14th ed.); and against assignees whether in bankruptcy or claiming under an assignment for the benefit of creditors (Fawell v. Heelis, Amb. 724); and against a person appointed under Lunacy Act, 1899, s. 116, to get in a lunatic's estate (Davies v. Thomas, 1900, 2 Ch. 464).

The lien is assignable by parol (Dryden v. Frost, 3 M. & C. 670), but Is assignable. the assignee will take it subject to any prior incumbrances created by the vendor (Lacy v. Ingle, 2 Ph. 413).

A vendor of land to a railway company who have entered and used it In the case for the purpose of their railway, is entitled to the same lien on land for of sales to a the unpaid purchase-money and the same remedies for enforcing it as an railway ordinary vendor (see Munns v. Isle of Wight R. Co., 5 Ch. 414, where an company. order was made for a receiver, and the cases there quoted; Wing v.

3 & 4 Will. 4, c. 27, s. 40.

Real Estate
Charges Acts.

At common

law.

Purchaser's

lien.

(4) MONEY

OR PAYABLE

OUT OF LAND.

Tottenham Co., 3 Ch. 740, where the vendor was held entitled to a sale). The company will not be restrained from running trains over the land until the sale (Lyatt v. Stafford Co., 13 Eq. 261). The vendor has no lien for the costs of an arbitration under the Lands Clauses Consolidation Act (Ferrers v. Stafford Co., 13 Eq. 524).

The word " mortgage "in Real Estate Charges Act, 1854, has been extended so as to include the lien, both in the case of testators and intestates (see R. E. C. Acts, 1867 and 1877, post; Broadbent v. Groves, 24 Ch. D. 94). As to a lien on real estate for an unpaid legacy, see Barker v. Barker (10 Eq. 438).

An unpaid vendor has not at law any lien on the title deeds for his purchase-money (Goode v. Burton, 1 Ex. 189; see also Hope v. Booth, 1 B. & Ad. 498; Baker v. Dewey, 1 B. & C. 704; Lampon v. Corke, 5 B. & Ad. 606; Oxenham v. Esdaile, 3 Y. & J. 362; Hooper v. Ramsbottom, 4 Camp. 121; Harding v. Ambler, 3 M. & W. 279).

A purchaser may have a lien on the land for the deposit paid by him to the vendor (Rose v. Watson, 10 H. L. C. 683; Levy v. Stogdon, 1898, 1 Ch. 478; 1899, 1 Ch. 5; Whitbread v. Watt, 1902, 1 Ch. 835), which may be lost by his repudiation of the contract (Cornwall v. Henson, 1899, 2 Ch. 710).

It was questioned in Pawsey v. Barnes (20 L. J. Ch. 393), whether the CHARGED UPON share of the produce of real estate, devised to trustees upon trust to sell, was a sum charged upon or payable out of land within this section. Such a share was held to be "money payable out of land," within sect. 42, post (Bowyer v. Woodman, 3 Eq. 313). In Mutlow v. Bigg (18 Eq. 246), land was devised on trust for sale, and part having been sold, but part remaining unsold, an action was brought for execution of the trust. V.-C. Hall held that sect. 40 had no application, except as regards the part sold. Money due on a bond by an ancestor is not a sum of money payable out of land within this section (Roddam v. Morley, 2 K. & J. 336; see Morley v. Morley, 5 D. M. & G. 610).

Same hand to pay and receive.

(5)

LEGACIES.

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 abandoned 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 (Burrell v. Egremont, 7 Beav. 206); as where a tenant for life paid off a charge on settled estates (Ib.; see Kensington v. Bouverie, 7 D. M. & G. 144; Baldwin v. Baldwin, 4 Ir. Ch. R. 501; Carbery v. Preston, 13 Ir. Eq. R. 455); or where the person entitled beneficially to the rents of the mortgaged land was also entitled to the interest of the mortgage, although the trustees were different (Topham v. Booth, 35 Ch. D. 607). In these cases payment of interest has been presumed. The same principle was applied where a married woman living with her husband was entitled to the interest of mortgage money charged on her husband's land (Re Hawes, Burchell v. Hawes, 62 L. J. Ch. 463; see Re Dixon, Heynes v. Dixon, 1900, 2 Ch. 561). 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 capable of releasing and giving a discharge (M'Carthy v. Daunt, 11 Ir. Eq. R. 29; Carroll v. Hargrave, I. R. 5 Eq. 123). See further, the cases quoted under sect. 8 of R. P. Lim. Act, 1874 (post, p. 212); under R. P. Lim. Act, 1837 (ante, p. 174); and under Civil Proc. Act, 1833, s. 5 (post, p. 220).

The section has no application in the case of an annuity charged on real estate in Jamaica (Pitt v. Dacre, 3 Ch. Div. 295).

This section was applicable to legacies payable out of personal estate only (Paget v. Foley, 2 Bing. N. C. 679; Sheppard v. Duke, 9 Sim. 569; Henry v. Smith, 2 Dru. & War. 391; O'Hara v. Creagh, 1 Long. & T. 65). The section extended to a residue (Prior v. Horniblow, 2 Y. & Coll. 201); or share of residue (Christian v. Devereux, 12 Sim. 271); and to an annuity payable out of personalty (Re Ashwell, Johns. 112; see Dower v. Dower,

c, 27, s. 40.

15 L. R. Ir. 264). As to whether such annuity unsecured by bond or 3 & 4 Will. 4, covenant would have been extinguished by twenty years' non-payment, see Sugd. R. P. Stat. 138; Darb. & Bos. Stat. Lim. 181, 182. Where the person liable for payment of a legacy and the person entitled to receive it are the same, no question of limitation could arise (Binns v. Nicholls, 2 Eq. 256; see Blachford v. Worsley, 27 Ch. D. 676). Compare the cases as to charges (sup.), and as to specialties (post, p. 220). As to the effect of an order in lunacy in preserving the right to recover a legacy, see Re Walker (7 Ch. 120); and generally as to the running of time in the case of actions to recover legacies, see especially the cases as to a present right to receive a legacy, p. 196, post.

An executor who had possessed assets sufficient to pay a legacy, died leaving it unpaid, and having charged his real estates with his debts. The right to sue for the legacy as such having been barred, it could not be claimed under the charge of debts (Piggott v. Jefferson, 12 Sim. 26).

Before this act lapse of time was frequently held a bar to a suit for a legacy Presumption upon the ground of raising a presumption of payment (Higgins v. Crawford, of payment 2 Ves. jun. 572; Pickering v. Stamford, Ib. 582; Jones v. Turberville, Ib. 11; of legacies Montressor v. Williams, 1 Rop. on Leg. 792, 2nd ed.; Campbell v. Graham, before 3 & 4 1 R. & M. 453; 2 Cl. & Finn. 429). For cases where the presumption Will. 4, c. 27. was not raised, see Shields v. Rice (3 Jur. 970); Lee v. Brown (4 Ves. 362); Prior v. Horniblow (2 Y. & Coll. 206); Ravenscroft v. Frisby (1 Coll. 16).

(6)

According to the law as it stood before 1879, sect. 25 of the R. P. Lim. Express trusts Act, 1833, qualified sect. 40 where land was vested in trustees upon of money express trust to secure payment of debts (Dillon v. Cruise, 3 Ir. Eq. R. payable out 70; Hunt v. Bateman, 10 Ir. Eq. R. 360; see Dundas v. Blake, 11 Ir. Eq. of land; R. 138; Heenan v. Bury, 2 J. & Lat. 303); or of charges (Young v. Waterpark, 13 Sim. 204; 15 L. J. Ch. 63; Blair v. Nugent, 3 J. & Lat. 658; Lawton v. Ford, 2 Eq. 97; see Burrowes v. Gore, 6 H. L. C. 907); or of legacies or annuities (Watson v. Saul, 1 Giff. 188; Ward v. Arch, 12 Sim. 472). But now the R. P. Lim. Act, 1874, s. 10, provides that after 1st January, 1879, no action, suit, or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent at law or in equity, and secured by an express trust, except within the time within which the same would be recoverable if there were not any such trust (see post, p. 213).

The case of sums of money secured by an express trust of personalty of money vested in a trustee, but which sums are not charged upon or payable out payable out of land, appears to be unaffected by the last-mentioned section; and in the of personalty. case of such sums it was held, previously to the R. P. Lim. Act, 1874, that the trust of personalty prevented the statute from operating as a bar (see Playfair v. Cooper, 17 Beav. 187; compare the Jud. Act, 1873, sect. 25 (2); Banner v. Berridge, 18 Ch. D. 262). It seems that the lastmentioned rule did not apply to the case where the trust of personalty was one imposed upon an executor (Cadbury v. Smith, 9 Eq. 42; Scott v. Jones, 4 Cl. & Fin. 382; Re Stephens, Warburton v. Stephens, 43 Ch. D. 45). But the executor may become a trustee (see Charlton v. Durham, 4 Ch. 433; Darb. & Bos. Stat. Lim. 171); e.g., where he has severed a legacy (Phillipo v. Munnings, 2 M. & C. 309; explained in Harcourt v. White, 28 Beav. 309; Tyson v. Jackson, 30 Beav. 384; see Re Smith, Henderson Roe v. Hitchins, 42 Ch. D. 302); or has executed a declaration of trust (Re Rowe, Jacobs v. Hind, 60 L. T. 599). The executor may become a trustee by assenting to a legacy given to him in trust (Dix v. Burford, 19 Beav. 412); but not by assenting to an absolute legacy (Re Rowe, sup.); or by signing a residuary account (Re Rowe, 61 L. T. 581; see Tyson v. Jackson, 30 Beav. 384). The ordinary implied trust which affects personal estate held by an executor for the benefit of legatees does not prevent the running of time (Re Davis, Evans v. Moore, 1891, 3 Ch. 124; Re Barker, Buxton v. Campbell, 1892, 2 Ch. 491; see Re Lacy, Royal Association v. Kydd, 1899, 2 Ch. 149).

3 & 4 Will. 4,
c. 27, s. 40.

Trustee Act,
1888.
(7)
Claims to
estates of
intestates.

(8) "Present right to receive."

In the case of proceedings against trustees commenced after 1889, regard must be had to sects. 1, 8, and 12 of the Trustee Act, 1888 (post, p. 247).

The case of claims to the estates of persons dying intestate is dealt with by Law of Prop. Amdt. Act, 1860, s. 13 (ante, p. 191), which is not affected by R. P. Lim. Act, 1874. The last-mentioned section is retrospective (Willis v. Howe, 43 L. T. 375; Re Johnson, Sly v. Blake, 29 Ch. D. 964), and applies to a partial as well as an entire intestacy (Willis v. Howe, sup.). An action was barred by this section in Martin v. Beauchamp (1888, W. N. 247); also in Re Lacy, Royal Association v. Kydd (1899, 2 Ch. 149), where an executor was held not to be an express trustee of leaseholds for next of kin. The section is no bar to a claim made by the next of kin to leaseholds of the intestate which had been occupied for more than twenty years by the administrator (who was also heir-at-law to the intestate), under a belief that the property was freehold (Reed v. Fenn, 35 L. J. Ch. 464). See also, as to lapse of time in the case of claims to an intestate's estate, Cresswell v. Dewell (4 Giff. 460); and the cases as to a present right to receive, below.

Tindal, C. J., said, "By the words, 'present right to receive the same,' we understand an immediate right without waiting for the happening of any future event" (Farran v. Beresford, 10 Cl. & Fin. 334). The words are not equivalent to "present right to enforce payment of the same" (Hornsey Board v. Monarch Society, 24 Q. B. Div. 5; see further, Dillon v. Cruise, 3 Ir. Eq. R. 82; 2 Jebb & Symes, 109; Ryan v. Combie, 2 Ir. Eq. R. 334). In the case of charges it was said that in each case the moment to be looked at was the moment when the charge came into present operation (Hornsey Board v. Monarch Society, 24 Q. B. Div. 9).

In the case of a legacy payable out of personal estate or in the case of a share of an intestate's estate, the "present right to receive" means the right to receive from the executor or administrator, and does not accrue in the case of a reversionary or outstanding asset before the same has been actually recovered or reduced into possession by him (Re Johnson, Sly v. Blake, 29 Ch. D. 971). If the executor sells the reversionary interest, time runs from the receipt by him of the proceeds (Ludlam v. Ludlam, 63 L. T. 332). Accordingly claims made more than twenty years after the death were held not barred as to assets received by the defendant within twenty years before action, in the case of legatees claiming residue (Adams v. Barry, 2 Coll. 290; see Re Davis, Evans v. Moore, 1891, 3 Ch. 119, a decision under R. P. Lim. Act, 1874); and in the case of next of kin claiming administration (Re Johnson, Sly v. Blake, 29 Ch. D. 964). See form of decree in Larkins v. Phipps (1873, W. N. 207). In the case of an immediate legacy, it was said that the right to receive it did not arise until twelve months after the testator's death (Earle v. Bellingham, 24 Beav. 448; see Benson v. Maude, 6 Mad. 15); but it seems that the statute would commence to run before that time (Hornsey Board v. Monarch Society, 24 Q. B. Div. 10).

Where a fund is set apart to answer an annuity, the statute cannot be set up against the residuary legatee on the death of the annuitant forty years afterwards; but it can as against a pecuniary legatee whose legacy was payable on the testator's death (Bright v. Larcher, 27 Beav. 130; 4 De G. & J. 608). Where a legacy was bequeathed payable out of a reversionary fund, a present right to receive the legacy did not accrue until the reversion fell in (Earle v. Bellingham, 24 Beav. 448; compare Blachford v. Worsley, 27 Ch. D. 676). But where a testator charged a future legacy on a contingent reversionary interest in land, the "present right to receive" accrued when the legacy became payable, not on the subsequent falling in of the reversionary interest (Re Owen, 1894, 3 Ch. 220). Where a testator's estate is so heavily charged with mortgages that it is uncertain whether a legatee will ever be paid his legacy, it seems to be doubtful whether it can be said that he has a present right to receive it within this

statute (Ravenscroft v. Frisby, 1 Coll. C. C. 22). Legatees whose legacies 3 & 4 Will. 4, were charged on real estate, subject to prior charges, were not affected by c. 27, s. 40. lapse of time so long as any of the prior charges subsisted (Faulkner v. Daniel, 3 Hare, 212; see, however, Proud v. Proud, 11 W. R.` 101). The present right to receive must accrue to some persons capable of Disabilities. giving a discharge for or release of the same; and accordingly, where a legacy was bequeathed to an infant, time was held to run from the period when she attained her majority (Piggott v. Jefferson, 12 Sim. 26). When time has commenced to run against the right of a legatee to recover his legacy, and the executor is subsequently found a lunatic, time will nevertheless continue to run (Boldero v. Halpin, 19 W. R. 320).

66

(9) The words in sect. 40, by the person by whom the same shall be PART PAYpayable or his agent," apply equally to the making of a payment and the MENT. signing of an acknowledgment (Chinnery v. Evans, 11 H. L. C. 115, 124; see Harlock v. Ashberry, 19 Ch. Div. 539). In the latter case, it was said that the underlying principle of all statutes of limitation is that a payment to take a case out of the statute must be a payment by a person liable as an acknowledgment of right (Ib. p. 545). Compare the discussion of the corresponding New Brunswick statute (Lewin v. Wilson, 11 App. Cas. 639).

Payment by a mere stranger will not do (Homan v. Andrews, 1 Ir. Ch. Rep. 106; Linsell v. Bonsor, 2 Bing. N. C. 245; Chinnery v. Evans, 11 H. L. C. 115). The person designated in this section as the person by whom money is payable must evidently mean, in the case of a claim by equitable lien, the person entitled to the land on which the charge is sought to be fixed. The money is payable by him in the only sense in which it is payable by any one. Unless he pay it he will lose his land; and it is obviously in that sense that the statute in such a case speaks of the money as payable (Toft v. Stephenson, 1 D. M. & G. 40; quoted in Pears v. Laing, 12 Eq. 54). Where a mortgagor assigned the equity of redemption, and subsequently paid interest, the payment did not prevent time running in favour of the assignee (Newbould v. Smith, 33 Ch. Div. 127; 14 App. Cas. 423). The payment of interest on a mortgage, made by the receiver of the mortgagor, is a payment by an agent of the party liable within this section (Chinnery v. Evans, 11 H. L. C. 115). But the entering by the mortgagee into the receipt of the rents and profits of the mortgaged property is not a payment by the mortgagor, or by any one on his behalf (Harlock v. Ashberry, 19 Ch. Div. 539; Cockburn v. Edwards, 18 Ch. Div. 457, overruling on this point Brocklehurst v. Jessop, 7 Sim. 442; see White v. Hillacre, 3 Y. & Coll. 597; Williams v. Welch, 3 D. & L. 565). On the death of a mortgagor, his widow (who was entitled to dower) took possession of the mortgaged estate with the consent of the heir, and paid interest on the mortgage. It was held, that the heir was bound by the payments, the widow being regarded either as his agent, or else as a stranger, in which case the heir himself was barred (Ames v. Mannering, 26 Beav. 583). Where a mortgagor of a legacy, and another as surety, gave a bond to the mortgagee as a collateral security for the amount, payment of interest by the co-obligor and surety, who was also tenant for life of land on which the legacy was charged, kept the debt alive against the principal debtor, notwithstanding Merc. Law Amdt. Act, 1859, ss. 5, 14 (Seager v. Aston, 26 L. J. Ch. 302). Payment of interest by a tenant for life of an equity of redemption will keep the mortgage alive so that foreclosure may be had (Barclay v. Owen, 60 L. T. 222). But under special circumstances, payment of interest by a tenant for life was held not to bind the remainderman (Beckett v. De la Cour, 11 L. R. Ir. 187). Where a mortgagor assigned an annuity to the mortgagee to secure part of the mortgage debt, and the mortgagee received the annuity to an amount which exceeded that part and interest, the surplus was a payment sufficient to keep the mortgage debt alive (Staley v. Barrett, 26 L. J. Ch. 321; compare Re Clifden, Annaly v. Agar-Ellis, 1900, 1 Ch. 774). Where a testator devised part of his real estates charged with the payment of