CHAP. IX. STATUTES OF LIMITATIONS. When a holding over after for feiture does not constitute an sion. Fourthly, When the possessor has acknowledged a title in the claimant, then the possession will not be deemed adverse. As where a lease for a long term had been granted by the lord of the manor to the rector, in which the lessee covenanted for himself, his executors and assigns to pay, during the continuance of the term, a certain annual rent, and also all the tithe straw of wheat and rye within the parish; and the lessee and his assigns (the succeeding rectors) continued in possession for twenty years and upwards after the expiration of the term, without payment of rent, but during that twenty years suffered the heir of the lessor to take the tithe of the wheat and rye straw, it was held that such sufferance was evidence of an agreement between the lessor and lessee, or their heirs and assigns respectively, that the lessee or his assigns should continue in possession if the lessor and his heirs were permitted to receive the tithe as before, and that consequently there was no adverse holding in the assignee of the lessee. (i) We have also seen other acknowledgments that are sufficient to prevent the possession from being deemed adverse. (k) With respect to Forfeitures, though they immediately create a right of entry, yet it is not compulsory on the owner or remainder-man immediately to exercise that right, and he may adverse posses- waive or suspend his claims until a subsequent time, and even until the lease for years, or estate for life, has determined by effluxion of time or other natural event, so that the twenty years do not necessarily run from the time of the forfeiture. (1) Thus, where a copyholder, with license, leased the copyhold for forty years, with a clause of re-entry upon non-payment of rent, and then devised such copyhold to A. and died, twenty years of the lease being then unexpired, and the heir received the rent from the lessee from the time of the death of the copyholder until the expiration the lease, and for ten years afterwards, when the devisee brought an action of ejectment: it was decided that the devisee was not barred by the statute, although more than twenty years had elapsed from the time of the death of the testator, and the forfeiture of the lease by non-payment of rent to the devisee; for until the termination of the lease, the devisee had no right to enter, except for the forfeiture, and although he might have entered by reason of the forfeiture, yet he was not bound to do so. (m) (i) Roe d. Pellat v. Ferrars, 1 Bos. & Pul. 542. (k) Ante, 751, n. (t); 752, n. (u). (1) Doe. Danvers, 7 East, 299; Hovenden v. Lord Annesley, 2 Scho. & Lef. 624; so in equity, see Fausset v. Carpen ter, 2 Dow. Rep. N. Series, 232; but see observations respecting what has been said in the House of Lords in Cholmondeley v. Clinton, 1 Turn. & Rus. 118, 119; ante, 753, n. (h.) (m) Doed. Cooke v. Danvers, 7 East, 299% STATUTES OF So it has been held, that where there is a proviso in a lease CHAP. IX. that it shall be void in case of a breach, the landlord alone can LIMITATIONS. treat it as void, and which he may do at any time on a subsequent breach. (m) Jac. 1, c. 16, s. 2, as to Real excepted in 21 property, and cases thereon. The saving clause in the statute 21 Jac. 1, c. 16, s. 2, only Disabilities extends to the person on whom the right first descends, and therefore when the time once begins to run, nothing can stop it. So that on the death of a person in whose life the time first began to run, his heir must enter within the residue of the ten years, although he laboured under a disability at the death of his ancestor. (n) In other words, to enable a party to take advantage of the extension of time granted by the second section of this statute, it is necessary that the disability to enter should exist at the time when the title under which he claims, whether to him or his ancestor, first accrued, for if he or his ancestor had the power to enter but for an instant no subsequent disability will be sufficient to arrest the operation of the statute, and the principle is the same where a disability existing at the time of the commencement of the title is afterwards removed, and a subsequent disability ensues, the statute continuing to run notwithstanding the second disability. It was once indeed endeavoured to distinguish between cases of voluntary and involuntary disability in this respect, and to maintain that an involuntary disability, as insanity, occurring after the statute had begun to run, would suspend its progress; but the argument was overruled upon the principle that a different construction had always been given to all the statutes of limitations, and that such nice distinctions would be productive of mischief.(o) It was said by Lord Chancellor Hardwicke, that if a man both of non-sane memory and out of the kingdom, come into the kingdom, and then go out of the kingdom, his non-sane memory continuing, his privilege as to being out of the kingdom is gone, and his privilege as to non-sane memory will cease from the time he returns to his senses. (p) So when the ancestor, to whom the right first accrues, dies under a disability which suspends the operation of the statute, his heir must make his entry within ten years next after his ancestor's death, (m) Rede v. Farr, 6 M. & S. 121; Doe d. Bryan v. Bancks, 4 Bar. & Ald. 401, S. P. (n) Sugd. V. & P. 8th ed. 349, 350, cites Doe v. Jones, 4 T. R. 300; Cotterell v. Dutton, 4 Taunt. 826, infra. VOL. I. (0) Doe d. Duroure v, Jones, 4T. R .300; (p) Sturt v. Mellish, 2 Atk. 610, 614. STATUTES OF LIMITATIONS. CHAP. IX. provided more than twenty years have elapsed from the time of the commencement of the ancestor's title to the time of the expiration of the ten years. (2) It was once indeed contended that the meaning of this second section of the statute was to allow every person at least twenty years after his own title accrued, if there were a continuing disability, from the death of the ancestor last seised, and ten years more to the heir of the person dying under a disability, which ten years were, in addition to the twenty years, allowed by the first clause; but it was justly observed by the court that if that construction could prevail there was no calculating how far the statute might be carried, by parents and children dying under age, or continuing under other disabilities in succession, and that the word death, in the second clause, meant and referred to the death of the person to whom the right first accrued, and was probably introduced in order to obviate the difficulty which had arisen in the case of Stowell v. Lord Zouch, (r) upon the construction of the statute of fines, from the omission of that word, and that the statute meant that the heir of every person, to which person a right of entry had accrued during any of the disabilities there stated, should have ten years from the death of his ancestor to whom the right first accrued during the period of disability, and who died under such disability, notwithstanding the twenty years from the first accruing of the title to the ancestor should have before expired. (s) Rent charges, quit rents, &c. Common law, The statute 21 Jac. 1, c. 16, does not however extend to rent charges created by deed, and as to which there is no prescribed limitation of time at law or in equity, (t) or to quit rents, (u) or to rents arising by grant under seal, or will. (x) So that any number of years' arrears of them may be recovered, unless there be evidence to presume payment, which presumption might be allowed, as in case of a bond. (y) There is a species of common law limitation of some rights presumption in and the power of disputing the same which, independently of favour of some Incorporeal rights after twenty years' enjoyment. (4) Doe d. George v. Jesson, 6 East, 80; see observation thereon, Sugd. V. & P. 351, 352. (r) Plow. 366; Sugd. V. & P. 8th ed. 350, 351. (s) Doe d. George v. Jesson, 6 East, 80. t) Cussit v. Jackson, M'Clel. Rep. 495, and 13 Price, 721, S. C.; and see Collins v. Goodhall, 2 Vern. 235, and Stackhouse v. Barnston, 10 Ves. J. 467; but there may be a presumption of payment as in case of a bond, Id. ibid. (u) Eldridge v. Knott, 1 Cowp. 214, According to that case, mere length of time, short of the period fixed by the statute of limitations, and unaccompanied with any circumstances, is not of itself a sufficient ground to presume a release or extinguishment of a quit rent; see also, ante, 228. (x) Collins v. Goodhall, 2 Vern. 235. (y) Stackhouse v. Barnston, 6 Ves, J. 467. STATUTES OF the act 2 & 3 Wm. 4, c. 71, has ever affected and still affects CHAP. IX. rights of common, ways, watercourses and other incorporeal LIMITATIONS. rights, profits and easements, viz., twenty years' undisturbed enjoyment, which has long been considered as affording at least primâ facie evidence of what is termed a Prescriptive right; or where the easement cannot in law be claimed by prescription, but only by custom, then of a Customary right.(z) Thus a presumptive right and title to common (except common appendant) upon the land of another, may be acquired merely by twenty years' user or enjoyment without any actual conveyance or deed or other grant or title; (a) and the same presumption of a perfect grant of a right of way, (b) or of the use of ancient lights, (c) was always to be inferred from twenty years' exercise of such a right. And the same rule prevails as to Customs, whether affirmative or negative, with respect to which a usage for twenty years has long been considered as at least presumptive primâ facie evidence of a corresponding right. (d) to. Upon the other hand, possession, necessary to constitute a But there must title by such prescription, must have been uninterrupted and not have been any interruppeaceable, both according to the civil law, the law of England, tion submitted and that of France, Normandy and Jersey. (e) It must "have been possessio longa, continua et pacifica, nec sit legitima interruptio, long continued and peaceable. (f) Pour pouvoir prescrire il faut une possession continue et non interrompue, paisible, publique et a titre de proprietaire. (g) And though the right is not to be considered interrupted by mere trespassers, if the trespassers were unknown, yet if they were known, and if the trespasses have frequently happened, and no legal proceedings have been instituted in consequence of them, they then become the legitimæ interruptiones, which Bracton speaks of, and are converted into adverse assertions of right, (h) and if not promptly and effectually litigated they defeat the claim of rightful prescription; and a mere threat of action for the trespasses, without following it up, will have no effect to preserve the right.”(¿) And (*) Ante, 282 to 286. (a) Moore v. Rawson, 3 Bar. & Cres. 339; and see unte, 282 to 286. (b) Knight v. Halsey, 2 Bos. & Pul. 206; Campbell v. Wilson, 3 East, 294; Lidell v. Wilson, 3 Bing. 115; Moore v. Rawson, S Bar. & Cres. 339. (c) Lewis v. Price, 2 Saunders, 175, 176, n. 2; Cross v. Lewis, 2 Bar. & Cres. 686. (d) Re Jolliffe, 2 Bar. & Cres. 54; 3 Dowl. & R. 240, S. C. (e) Benest v. Pisson, Knapp, R. 60; ante, 284, a case in privy council, appeal from Jersey, which should be carefully read by every student. (f) Domat. lib. 1, tit. 12 sect. 1, in notes; Bracton, fols. 52 & 222, 226; Co. Lit. 113, b. (g) Code Civil, liv. 3, tit. 20, article, (h) Benest v. Pisson, Knapp, Rep. 70. CHAP. IX. as a lord of the manor cannot establish a claim to the exclusive Incorporeal mark, except by a grant from the king, or by such long and undisturbed enjoyment of it as to give him a title by prescription, it was held that as it appeared that others had also taken such sea weed without having been sued for so doing, the lord in that case had not established his claim. (k) So if a bar has been for many years maintained across a way and occasionally shut, though it may have been knocked down once, the former exclude presumption of right, and show that the way or other easement has been merely by permission. (1) At common law, and independently of the above act, as observed by Lord Kenyon, from upwards of twenty years' exclusive and uninterrupted enjoyment of an easement or profit à prendre, a grant or even one hundred grants will be presumed, and this even against the king, if by possibility they could legally have been made; (m) and though before the above act it was essential to the validity of a prescription or custom that it should have existed before the commencement of the reign of Rich. 1, A. D. 1189, yet in practice, proof of a regular usage for twenty years, not explained or contradicted, was that upon which many private and public rights were held, and sufficient for a jury in finding the existence of an immemorial custom or prescription, or of a lost grant. (n) But still twenty years or longer uninterrupted user was not conclusive, for it might be shown to have commenced during a long term of years, as pending a lease for ninety-nine years, at the expiration of which the owner in fee might insist on the determination of the easement; (0) or it might be shown that the use of a way or other easement commenced during an estate for life, and consequently that it did not bind the remainder-man or reversioner. (p) These exceptions it will be observed are provided for and continued by the foregoing act. (q) With respect to the operation of the before-mentioned statute, 2 & 3 Wm. 4, c. 71, upon incorporeal rights and (k) Benest v. Pisson, Knapp, Rep. 60; Lowe v. Govett, 3 Bar. & Adolp. 863. (1) 2 Saund. 175, note (e); Rex v. Lloyd, 1 Campb. 260; Rex v. Barr, 4 Campb. 16; Woodyer v. Hadden, 5 Taunt. 125; Trustees of Rugby Charity v. Meryweather, 11 East, 376. (m) Roe d. Johnson v. Ireland, 11 East, 284; Goodtille v. Baldwin, Id. 495; and see 2 Bla. Com. edit. Chitty, 31, note, 20; 35, note 35; 265, n. 4. (n) Rex v. Joliffe, 3 D. & R. 240; 2 Bar. & Cres. 54, S. C.; Parsons v. Bellamy, 4 Price, R. 198; 2 Saund. 175, a., n. (d); 1 Saund. 325, u. (a). (0) Wood v. Veal, 5 Bar. & Ald. 454. (p) Daniel v. North, 11 East, S72; 2 Saund. 175, a. (4) Ante, 745, where see the act stated at length. |