"No action or suit or other proceeding shall be brought to recover Chap. XVI. any sum of money secured by any mortgage, judgment (p), or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy (q), but within twelve 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 but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given." In cases within this section the limitation applies to the personal remedy on the covenant in a mortgage deed as well as to the remedy against the land (r), and to an action on a collateral bond whereby the mortgage debt is secured (s). It will be observed that under this section time begins to run from the concurrence of two events: the money must be payable, and there must be some person capable of giving a discharge for it. In the case of a legacy time begins to run from the expiration of twelve months after the death of the testator, unless some other time is mentioned in the will, or unless, if the legacy is charged on land, the subsistence of prior charges prevents the legatee from claiming payment of his legacy (†). It has been held that the provisions of the section extend to legacies not charged on land (x). Any annuity charged on land by will is "rent" within the meaning of the Act and therefore does not fall under this section (y). Although the section does not expressly give any allowance of time in the case of disabilities, it practically does so by the words "some person capable of giving a discharge for or release of the same," as unless there is such a person the section does not apply. Where the same person has to pay and receive interest, time 4 Wm. 4, c. 27, under which the period of limitation was twenty years. (p) See Ex parte Tynte, 15 Ch. D. 125; Evans v. O'Donnell, 18 L. R. Ir. 170; Elph. & Cl. Searches, 50. (g) Whether charged on land or not. (r) Sut'on v. Sutton, 22 Ch. D. 511. (s) Fearnside v. Flint, 22 Ch. D. 579. (t) Faulkner v. Daniel, 3 Ha. 199 at p. 212. (x) Bullock v. Downes, 9 H. L. C. at 14; Sheppard v. Duke, 9 Sim. 567. (y) Hughes v. Coles, 27 Ch. D. 231. Chap. XVI. does not run against him, and this was held to be so in a case where the rents which he received were at law payable to one set of trustees for him and the interest which he retained was at law payable to another set of trustees for him (2). Charges secured by express trust. Arrears of rent or interest. By the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57, s. 10), sums of money or legacies (and arrears of interest thereon) charged on land and secured by an express trust are recoverable only within the same period as if there were no such trust (a). By the Act 3 & 4 Wm. 4, c. 27, it was provided (b) that "no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent" (c), should be 'recovered by any distress, action, or suit, but within six years next after the same respectively shall have become due," or a similar acknowledgment was given. The statute 3 & 4 Wm. 4, c. 42, passed a few weeks later, contained a provision (d) that "all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty," &c., should be commenced within twenty years after the cause of action. The difficulty of reconciling these enactments has been solved by decisions that an action for arrears of rent upon the covenant to pay in an indenture of lease might be brought within the time limited by the later Act (e); but that, in a suit in equity for the purpose of establishing an annuity charged on the lands, secured also by the personal covenant of the grantor, the earlier Act applied, and only six years' arrears could be recovered (f). It was held (g) that s. 42 of the Act 3 & 4 Wm. 4, c. 27, was applicable only to the land, and s. 3 of the Act 3 & 4 Wm. 4, c. 42, was applicable only to the person: the combined effect of the two enactments being that no more than six years' arrears of rent or interest in respect of any sum charged upon or payable (z) Topham v. Booth, 35 Ch. D. 607. (a) See Hughes v. Coles, 27 Ch. D. 231. (b) 3 & 4 Wm. IV., c. 27, s. 42. As to capitalized interest, see Clarkson v. Henderson, 14 Ch. D. 348. (c) This includes both a rent which is an incorporeal hereditament and rent reserved on a lease; Darby & Bos, 137; and also a gross sum of money charged on land and payable by annual instal ments; Uppington v. Tarrant, 12 Ir. Ch. (d) 3 & 4 Wm. IV. c. 42, s. 3. (c) Paget v. Foley, 2 Bing. N. C. 679. (f) Hunter v. Nockolds, 1 Mac, & G. 640; see Darley v. Tennant, 53 L. T. 257. (g) Hunter v. Nockolds, 1 Mac. & G. at p. 652, per Lord Cottenham, C. 1 out of any land or rent could be recovered by any distress, Chap. XV1. action, or suit, except in actions upon covenant or debt upon specialty, in which case the limitation would be twenty years. Jurisdiction The jurisdiction of equity to refuse relief, notwithstanding that Acquiescence. the period of limitation has not elapsed, is thus saved by the Statute 3 & 4 Wm. 4, c. 27 : S. 27. "Nothing in this Act contained shall be deemed to 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 virtue of this Act" (h). As to the doctrine of Acquiescence, Mr. Dart (i) says:"Mere lapse of time, except where it is a statutory or positive bar to relief, is only evidence of acquiescence: but a cestui que trust wishing to impeach a sale must do so within a reasonable time; which, as a matter of fact, is generally less than the time allowed by the Statute of Limitations though, independently of statutory limitation, no positive limit of time can be imposed, and each case must be governed by its own circumstances. A delay of eighteen years has been held to be an implied confirmation of the trausaction; ten and eleven years have been allowed in the case of an individual; and twelve in the case of creditors: but the general tendency of modern decisions and of recent legislation is to increasingly discourage stale demands: and where there are other circumstances, showing acquiescence, beyond the mere lapse of time, a short delay will be a sufficient bar to relief. A longer time, however, is allowed to a class of persons, e.g. creditors, than would be allowed to an individual." The difference between "acquiescence" and simple "laches" has been thus expressed by Lord Wensleydale : "Where there is a Statute of Limitations, the objection of simple laches does not apply until the expiration of the time allowed by the statute. But acquiescence is a different thing, it means more than laches. If a party who could object lies by, and knowingly permits another to incur an expense in doing an act under the belief that it would not be objected to, and so a kind of permission may be said to be given to another to alter his condition, he may be said to acquiesce but the fact of simply neglecting to enforce a claim for the period during which the law permits him to delay without losing his right, I conceive cannot be any equitable bar" (k). of equity. By the Rules of the Supreme Court, Statutes of Limitation are Pleading. (h) This section remains in force and is to be read with 37 & 38 Vict. c. 57; see s. 9. (i) Dart, V. & P., 54. (k) Per Lord Wensleydale, Archbold v. Scully, 9 H. L. C. 383. See also In Chap. XVI. required to be expressly pleaded (1); but the defence may be raised by way of demurrer (m) in cases in which, as in the Real Property Limitation Statutes, the statute operates to extinguish the title and not merely to bar the remedy of the plaintiff (n). (1) R. S. C., Ord. xix., rule 15. see rule 2. (n) See Dawkins v. Lord Penrhyn, 4 App. Cas. 51. ACTS IN APPENDIX. THE VENDOR AND PURCHASER ACT, 1874 [37 & 38 VICT. C. 78.] THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881 [44 & 45 VICT. C. 41.] THE CONVEYANCING ACT, 1882 [45 & 46 VICT. c. 39.] THE SETTLED LAND ACT, 1882 [45 & 46 VICT. c. 38.] THE SETTLED LAND ACT, 1884 [47 & 48 VICT. C. 18.] THE SETTLED LAND ACTS AMENDMENT ACT, 1887 [50 & 51 VICT. c. 30]. THE SETTLED LAND ACT, 1889 [52 & 53 VICT. c. 36.] THE SETTLED LAND ACT, 1890 [53 & 54 VICT. C. 69.] THE MARRIED WOMEN'S PROPERTY ACT, 1882 [45 & 46 VICT. c. 75.] |
