The insertion of more covenantors than ought to be joined is now immaterial. Vide ante, pp. 86, 87. Where the action is on an implied covenant, persons who are parties to the deed, only for confirmation, with no legal estate (as where trustee and cestui que trust join as lessors), should not be joined as defendants. Smith v. Pocklington, 1 °C. & J. 445. Whether, in an action by assignees of the reversion on express covenants, it is proper to join as coplaintiff's persons who have no legal interest in the reversion, is a question not yet at rest; see Wakefield v. Brown, and Magnay v. Edwards, ante, p. 637. At common law, no person not made, by name or description, a party to an indenture could sue thereon. Com. Dig. Fait, (D. 2); Chesterfield, de. Colliery Co. v. Hawkins, 3 H. & C. 677; 34 L. J., Ex. 121; Kitchin v. Harkins, L. R., 1 Q. B. 22. But now by 8 & 9 Vict. c. 106, s. 5, under an indenture executed after 1st October, 1845, "the benefit of a condition or covenant, respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture.”

Alteration of deed.] The cases relating to the alteration of deeds are collected with those relating to simple contracts, ante, pp. 588, et seq.

Fraud.] Vide ante, p. 590.

Payment under covenant, &c.] Vide post, p. 615.

Statutes of Limitation to actions on specialty.] The Stat. of Limitations, 21 Jac. 1, c. 16, ante, p. 602, did not apply to deeds or specialties. The statutes applying to such instruments are 3 & 4 Will. 4. cc. 27, 42; 19 & 20 Vict. c. 97; and 37 & 38 Vict. c. 57.

By the stat. 3 & 4 Will. 4, c. 27, the limitation of actions for rent, and annuities and other periodical sums charged upon or payable out of land, is regulated.

By sect. 42, no arrears of rent, 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, shall be recovered by any distress, action, or suit, but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable or his agent; provided, nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land or in receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other 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 shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years.”

By the Real Property Limitation Act, 1874, (37 & 38 Vict. c. 57), which (sect. 12) came into operation on 1st January, 1879, sect. 8, “no action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within 12 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, unless in the meantime some part of the principal money, or some interest thereon, shall have 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 no such action or suit or proceeding shall be brought

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but within 12 years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one was given." By sect. 10, after the commencement of this act " (ante, p. 638) "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, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable, and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust."

Sects. 8 (ante, p. 638) & 9 replace 3 & 4 Will. 4, c. 27, s. 40, under which section the period of limitation was 20 years instead of 12.

By 23 & 24 Vict. c. 38, s. 13, the period of limitation for claims in respect of the share of the estate of an intestate, made against his personal representative, is 20 years.

A payment to prevent the barring by stat. 37 & 38 Viet. c. 57, s. 8, must be an acknowledgment, by the person making the payment, of his liability, and an admission of the title by the person to whom it is paid. Harlock v. Ashberry, 19 Ch. D. 539, C. A. It must be made by the person liable to pay principal or interest; payment of rent by the tenant of the mortgaged property, to the mortgagee in pursuance of notice by him, is no bar. S. C. Where the receiver appointed by the court to receive the rents of three estates, A., B., and C. included in one mortgage, entered into possession of C. only and out of the rents paid the mortgage interest, this was held to be in law payment by the mortgagor in respect of the mortgage debt, and prevented the statute from operating. Chinnery v. Evans, 11 H. L. C. 115; see also Cronin v. Dennehy, I. R., 3 C. L. 289, C. P.

By the stat. 3 & 4 Will. 4. c. 42, the period of limitation in actions of debt on specialty, and in some other actions, is defined. By sect. 3, it is 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, and all actions of debt or scire facids upon any recognizance, shall be sued or brought within 20 years after the cause of such actions or suits, but not after; provided, that nothing herein contained shall extend to any action given by any statute, where the time for bringing such action is or shall be by any statute specially limited.

By sect. 4, provision is made for persons who are, at the time such cause of action accrued, within the age of 21 years, covert, of unsound mind, or beyond the seas; such person to be at liberty to bring the actions, so as they commence the same within such times after their coming to, or being of, full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, according to the provision of the act, have done; and if any person against whom there shall be any such cause of action, shall be, at the time of cause of action accrued, beyond the seas, then the person entitled shall be at liberty to sue such person within the times before limited after the return of such person from beyond the seas. [As to the words in italics, vide 19 & 20 Vict. c. 97, post, p. 640.] Sect. 5. Provided that, if any acknowledgment shall have been made either by writing signed by the party liable by virtue of such indenture, specialty or recognizance, or his agent, or by part payment, or part satisfaction on account, of any principal or interest then due thereon, it shall be lawful for the person entitled to such action to bring his action for the money remaining unpaid, and so acknowledged to be due, within 20 years after such acknowledgment or part payment or part satisfaction; or in case the person entitled to such action shall, at the time of such acknowledgment, be under such disability as aforesaid, or the party making such acknowledgment be, at the time of making it, beyond the seas, then within 20 years

after the disability shall have ceased, or the party shall have returned from beyond the seas, as the case may be; and the plaintiff in such action may, by way of replication, state such acknowledgment, and that the action was brought within the time aforesaid, in answer to a plea of this statute.

Sect. 7. No part of the United Kingdom, nor the Isle of Man, nor the Channel Islands, being dominions of the Queen, are to be deemed beyond seas within the meaning of this act.

By 19 & 20 Vict. c. 97 (already cited, ante, p. 605), s. 10, no person or persons entitled to any action limited by the acts 3 & 4 Will. 4, e. 27, s. 42, or Id. c. 42, s. 3 (ante, pp. 638, 639,) shall be entitled to any further time to sue by reason only that such person, or one or more of such persons, was or were beyond seas at the time when the cause accrued; and by sect. 11, in case of joint debtors, no further time is to be allowed for suing, by reason only that some of them were beyond seas when the cause accrued ; but a judgment recovered in such case will not per se be a bar to an action against the absent debtor or debtors after their return. Sect. 14 (cited ante, p. 609), also provides that part payment by one debtor shall not deprive his co-debtor of the benefit of the statute.

By the J. Act, 1873, s. 25, (2), no claim by a cestui que trust against his trustee on an express trust is to be barred by any Statute of Limitations. See, however, 37 & 38 Vict. c. 57, s. 10, ante, p. 639. But although the claim is not barred by the statute, yet where there has been laches on the part of the plaintiff, his remedy may be limited to six years' arrears of interest. Thomson v. Eastwood, 2 Ap. Ca. 215, D. P. See further ante, p. 603. The effect of the 3 & 4 Will. 4, c. 27, s. 42, and c. 42, s. 3 together, is that no more than six years' arrears of rent or interest in respect of any sum charged on, or payable out of any land or rent shall be recovered by way of distress, action, or suit, other than and except an action of covenant or debt on the specialty, in which case the limitation is 20 years. Paget v. Foley, 2 N. C. 679; Sims v. Thomas, 12 Ad. & E. 536; Grant v. Ellis, 9 M. & W. 113; Manning v. Phelps, 10 Exch. 59; 24 L. J., Ex. 62; Bowyer v. Woodman, L. R., 3 Eq. 313.

On the other hand, by 37 & 38 Vict. c. 57, s. 8, ante, p. 638, in an action on the covenant in a mortgage deed, to pay the mortgage debt, the period of limitation has been reduced to 12 years, Sutton v. Sutton, 22 Ch. D. 511, C. A.; so in an action on a bond given as collateral security with a mortgage, Fearnside v. Flint, 22 Ch. D. 579; and so in an action on a judgment, even although a suggestion has, within 12 years, been entered on the roll under C. L. P. Act, 1852, s. 129. Ex parte Tynte, 15 Ch. D. 125.

As to what cases fall within the stat. 3 & 4 Will. 4, c. 42, s. 3, and what within stat. 21 Jac. 1, c. 16, s. 3, vide ante, pp. 602, 603.

As to the applicability of the Statutes of Limitations to breaches of covenants for title, vide post, pp. 657, 658.

Mere delay in enforcing a specialty debt for any period within 20 years affords no bar to its recovery. Collins v. Rhodes, 20 Ch. D. 230, C. A.

A general replication never let in the subsequent promise, acknowledgment, or payment, as in actions for simple contract debts; for proof of a promise, not under seal, did not support the declaration; and if, under seal, it was another and different cause of action. If there were a sufficient written acknowledgment within 3 & 4 Will. 4, c. 42, s. 5, it must have been specially replied. Kempe v. Gibbon, 9 Q. B. 609. And this is still the rule. It must be shown which of the three sorts of acknowledgments,―viz., writing, payment, or satisfaction in part-is relied on. Forsyth v. Bristowe, 8 Exch. 347 ; 22 L. J., Ex. 70. The acknowledgment need not imply a promise, or be in itself a cause of action. Moodie v. Bannister, 4 Drew. 432; 28 L. J., Ch. 881; and an admission by the executors of the obligor in their answer to a suit inter alios is enough. 16.

Statutes of Limitation.

641

In an action of covenant for 400l., due on a mortgage deed, to which the plea of Stat. of Limitations was pleaded, plaintiff replied an acknowledgment within 20 years, and put in a deed of conveyance by defendant to trustees for payment of "all mortgages, debts, &c.," in which it was recited that the land was "subject to a mortgage to W. H. (plaintiff) for 400l. and interest :" held insufficient, because it did not acknowledge an existing debt, but only an outstanding mortgage. Howcutt v. Bonser, 3 Exch. 491. In an action by mortgagee against mortgagor, for principal and interest, after the lapse of 20 years, defendant pleaded the statute, to which plaintiff replied an acknowledgment in writing, and also part payment, within 20 years: within 20 years the defendant had assigned his equity of redemption, by a deed reciting payment of interest "up to the date thereof :" held, that this was evidence of payment within 20 years: held, also, that payment of interest by the assignee after assignment, was payment by the "agent" of the defendant. Forsyth v. Bristowe, 8 Exch. 716; 22 L. J., Ex. 255. It was there considered that the acknowledgment, under sect. 5, need not be made to the creditor or agent, though that is required by stat. 3 & 4 Will. 4, c. 27, s. 42, and 37 & 38 Vict. c. 57, s. 8, ante, p. 638.

On a plea that the "debt and cause of action " did not accrue, infra, &c., pleaded to a bond, declared upon, without showing the condition, and issue thereon, it appeared at the trial to be a post obit bond, and that the cestui que vie died within 20 years: held, that the plaintiff was entitled to recover, for the real cause of action arises on the condition. Tuckey v. Hawkins, 4 C. B. 655. To a declaration on a bond, without stating the condition, which was for payment of an annuity, the defendant pleaded that the causes of action did not accrue within 20 years; on which plaintiff joined issue, and suggested breaches of non-payment of arrears within 20 years. On the trial it appeared that there had been also breaches of condition 20 years ago, by payments of the annuities at irregular times, all of which, however, had been accepted by the plaintiff: held, that a new cause of action arose on each breach of the condition; that the previous breaches had been waived by acceptance, and that the plaintiff was entitled to a verdict on the issue. Amott v. Holden, 18 Q. B. 593; 22 L. J., Q. B. 14. A bond conditioned to replace stock is not within sect. 5 of the act, which relates only to conditions for payment of money; therefore an acknowledgment that it was not replaced, and a payment, within 20 years, of money conditioned to be paid in lieu of dividends, if the stock should not be replaced, will not rebut the statute so far as relates to the breach of condition to replace. Blair v. Ormond, 17 Q. B. 423; 20 L. J., Q. B. 444. But, the condition to pay periodically the money due in lieu of dividends, was held to continue in force, and that plaintiff was entitled to damages for a breach for non-payment within 20 years. S. C.

M. died indebted on a bond, in which the heirs were bound, having devised his estates in strict settlement; payment of interest by the devisee in possession, who took a life estate, was held to prevent the devisee in tail, in remainder, from setting up the statute when he came into possession. Roddam v. Morley, 1 De G. & J. 7; 26 L. J., Ch. 438; accord. Pears v. Laing, L. R., 12 Eq. 41. But see Coope v. Cresswell, L. R., 2 Ch. 112. As to the application of the Statute of Limitations to actions by and against executors; vide post, Part III., Actions by and against executors. The following are some of the most material issues arising in actions on leases or other conveyances of real property.

Evidence where plaintiff sues as assignee of reversion.] Where the lessor at the time of granting a lease has no title, but afterwards acquires one, the lease and reversion take effect in interest, and an action will lie by

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the assignee of the reversion on the covenants in the lease. Webb v. Austin. 7 M. & Gr. 701, and 728, n.; Sturgeon v. Wingfield, 15 M. & W. 224. And in Cuthbertson v. Irving, 4 H. & Ñ. 742 ; 28 L. J., Ex. 306, it was decided that a mortgagor of premises, having leased them to the defendant, by an instrument which did not, and afterwards assigned the reversion by an instrument which did, declare his title, the defendant was estopped from objecting to the equitable title of the assignee. In this last case the interest of the plaintiff was purely one by estoppel. The lessee is not estopped from showing that the lessor had not a fee simple in the land demised, provided he does not assert that he had no estate in the land which would give effect to the deed. Weld v. Baxter, 11 Exch. 816; 25 L. J., Ex. 214; 1 H. & N. 568; 26 L. J., Ex. 112. If the lessor's want of title appear on the lease, both parties are estopped from asserting a legal reversion, and the covenants are in gross, and not assignable. Pargeter v. Harris, 7 Q. B. 708; and see Saunders v. Merryweather, 3 H. & C. 902; 35 L. J., Ex. 115; and further, post, Action for recovery of land by landlord, and Replevin-Tenancy of the Plaintiff. Where a lessee makes an underlease for more than his term, and reserves rent, this rent is assignable by way of estoppel, and the assignee can sue the underlessee for the rent without attornment. Williams v. Hayward, 1 E. & E. 1040; 28 L. J., Q. B. 374. The assignee of part of the reversion in all the land may sue. 215 a; 1 Wms. Saund. 241 a (5) (c); so the assignee of the reversion of part of the land. Twynam v. Pickard, 2 B. & A. 105; and so a reversioner who has assigned the reversion of a part only. Swansea, Mayor, &c. of, v. Thomas, 10 Q. B. D. 48, cited, post, p. 646.

Co. Litt.

Evidence on defence of assignment over of reversion by plaintiff.] The lessor cannot bring an action of covenant on the lease, after he has parted with his reversion, for any breach of a covenant running with the land, which has accrued subsequently to the grant of the reversion, but the action can be brought only by the assignee of the reversion; for the stat. 32 Hen. 8, c. 34, has transferred the privity of the contract, together with the estate in the land, to the assignee of the reversion. 1 Wms. Saund. 241 f (6). The defendant may therefore plead that the breach accrued after the assignment by the lessor of his reversion; but as the stat. 32 Hen. 8, c. 34, only applies to leases by deed, such a defence is inapplicable to a claim on a parol lease. Vide ante, p. 317. For the same reason the defence applies only to covenants which run with the land. Stokes v. Russell, 3 T. R. 678; affirmed, 1 H. Bl. 562; Pargeter v. Harris,

supra.

Of a similar nature is the question, who is the proper person to sue on the death of the lessor, owner in fee, for breaches of covenant which have accrued in his lifetime? It is laid down that where there are covenants real, that is, which run with the land and descend to the heir, though there may have been a formal breach in the ancestor's lifetime, yet if the substantial injury has taken place since his death, the heir, and not the executor, is the proper plaintiff. But the executor may sue for a breach of covenant during the testator's lifetime, grounded on the special damage thereby caused to the testator's personal estate; 2 Wms. Saund. 181 c, (h); Kingdon v. Nottle, 1 M. & S. 355; Id. v. Id., 4 M. & S. 53; King v. Jones, 5 Taunt. 418; 4 M. & S. 188, Ex. Ch.; Raymond v. Fitch, 2 Č. M. & R. 588, 598; or, even although there be no such special damage. Ricketts v. Weaver, 12 M. & W. 718. But, where the covenant does not run with the land, the executor alone can sue. Raymond v. Fitch, supra.

The rights of a mortgagor to sue are now governed by the J. Act, 1873, s. 25, (5), ante, p. 281.