Covenants by trustees.
Sixty years' title required.
(z) Sugd. Vend. & Pur. 464, 13th ed. (a) Ibid. 463. (b) Cooper v. Emery, 1 Phill.
(c) Sugd. Vend. & Pur. 281, 13th ed.
(d) Ibid. 307.
It is not easy to say how the precise term of sixty years came to be fixed on as the time for which an abstract of the title should be required. It is true, that by a statute of the reign of Hen. VIII. (g) the time within which a writ of right (a proceeding now abolished (h)) might be brought for the recovery of lands was limited to sixty years; but still in the case of remainders after estates for life or in tail, this statute did not prevent the recovery of lands long after the period of sixty years had elapsed from the time of a conveyance by the tenant for life or in tail; for it is evident, that the right of a remainder-man, after an estate for life or in tail, to the possession of the lands does not accrue until the determination of the particular estate (i). A remainder after an estate tail may, however, be barred by the proper means; but a remainder after a mere life estate cannot. The ordinary duration of human life is therefore, if not the origin of the rule requiring a sixty years' title, at least a good reason for its continuance. For, so long as the law permits of vested remainders alter estates for life, and forbids the tenant for life, by any act, to destroy such remainders, so long must it be necessary to carry the title back to such a point as will afford a reasonable presumption that the first person mentioned as having conveyed the property was not a tenant for life merely, but a tenant in fee simple (j).
Reason for requiring a sixty years' title.
(e) Purris v. Rayer, 9 Price 488; Souter v. Drake, 5 B. & AdoL 992.
(f) trend v. Buckley, Ex. Ch., L. R., 5Q. B. 213.
(g) 32 Hen. VIII. c 2; 3
Black. Com. 100.
(h) By stat. 3 & 4 Will. IV. c. 27, s. 36.
(i) Ante, p. 242. Sec Sugd. Vend. & Pur. 609, 1lth ed.
The abstract of the title will of course disclose the names of all parties, who, besides the vendor, may be interested in the lands; and the concurrence of these parties must be obtained by him, in order that an unincumbered estate in fee simple may be conveyed to the purchaser. Thus, if the lands be in mortgage, the mortgagee must be paid off out of the purchase-money and must join to relinquish his security and convey the legal estate (k). If the wife of the vendor would, on his decease, be entitled to dower out of the lands (l), she must release her right and separately acknowledge the purchase deed(m). And when lands were sold by trustees, and the money was directed to be paid over by them to certain given persons, it was formerly obligatory on the purchaser to see that such persons were actually paid the money to which they were entitled, unless it were expressly provided by the instrument creating the trust, that the receipt of the trustees alone should be an effectual discharge (n). The duty thus imposed being often exceedingly inconvenient, and tending greatly to prejudice a sale, a declaration, that the receipt of the trustees should be an effectual discharge, was usually inserted, as a common form, in all settlements and trust deeds. The act to simplify the transfer of property (o) provided that the bond fide payment to, and the receipt of, any person, to whom any money should be payable upon any express or implied trust, or for any limited purpose, should effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary should be expressly declared by the instrument creating the trust. But this act was shortly afterwards repealed, without, however, any provision being made for such instruments as had been drawn without any receipt clause upon the faith of this enactment (p). Subsequently it was enacted that the bond fide payment to and the receipt of any person to whom any purchase or mortgage money should be payable upon any express or implied trust, should effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary should be expressly declared by the instrument creating the trust or security (q). And at length it has again been generally provided that the receipts in writing of any trustees or trustee for any money payable to them or him, by reason or in the exercise of any trusts or powers reposed or vested in them or him, shall be sufficient discharges for the money therein expressed to be received, and shall effectually exonerate the persons Paying such money from seeing to the application thereof, or from being answerable for any loss or misapplication thereof (r).
Duration of human life.
Concnrrenco of parties interested.
Application of purchase-money.
(j) See Mr. Brodie's opinion, 1 Hayes's Conveyancing, 564; Sugd. Vend. & Pur. 305, 13th ed.
(k) Ante, p. 407.
(l) Ante, p. 223. (m) Ante, p. 222. (n) Sugd. Vend. & pur. 541, l3th ed.
Trustees' receipts now good discharges.
(o) Stat. 7 & 8 Vict. c. 76, s. 10.
(p) Stat. 8 & 9 Vict. c. 106, s. 1.
(q) Stat. 22 & 23 Vict. c. 35, s. 23.
(r) Stat. 23 & 24 Vict. c. 145, s. 29. This act extends only to instruments executed after its passing (sect. 34). It passed the 28th of August, 1860.
Supposing, however, that, through carelessness in investigating the title, or from any other cause, a man should happen to become possessed of lands, to which some other person is rightfully mtitled; in this case it is evidently desirable that the person so rightfully entitled to the lands should be limited in the time during which he may bring an action to recover them. To deprive a man of that which he has long enjoyed, and still expects to enjoy, will be generally doing more harm than can arise from forbidding the person rightfully entitled, but who has long been ignorant or negligent as to his rights, to agitate claims which have long lain dormant. Various acts for the limitation of actions and smts relating to real property have accordingly been passed at different times (s). By a statute of the reign of George III. (t) the rights of the crown in all lands and hereditaments are barred after the lapse of sixty years. With respect to other persons, the act now in force (u) was passed in the reign of King "William IV., at the suggestion of the real property commissioners. By this act, no person can bring an action for the recovery of lands but within twenty years next after the time at which the right to bring such action shall have first accrued to him, or to some person through whom he claims (x); and, as to estates in reversion or remainder, or other future estates, the right shall be deemed to have first accrued at the time at which any such estate became an estate in possession (y). But a written acknowledgment of the title of the person entitled, given to him or his agent, signed by the person in possession, will extend the time of claim to twenty years from such acknowledgment (z). If, however, when the right to bring an action first accrues, the person entitled should be under disability to sue by reason of infancy, coverture (if a woman), idiocy, lunacy, unsoundness of mind, or absence beyond seas, ten years are allowed from the time when the person entitled shall have ceased to be under disability, or shall have died, notwithstanding the period of twenty years above mentioned may have expired (a), yet, so that the whole period do not, including the time of disability, exceed forty years (b); and no further time is allowed on account of the disability of any other person than the one to whom the right of action first accrues (c). By the same act whenever a mortgagee has obtained possession of the land comprised in his mortgage, the mortgagor shall not bring a suit to redeem the mortgage but within twenty years next after the time when the mortgagee obtained possession, or next after any written acknowledgment of the title of the mortgagor, or of his right to redemption, shall have been given to him or his agent, signed by the mortgagee (d). By the same act the time for bringing an action or suit to enforce the right of presentation to a benefice is limited to three successive incumbencies, all adverse to the right of presentation claimed, or to the period of sixty years, if the three incumbencies do not together amount to that time (e); but whatever the length of the incumbencies, no such action or suit can be brought after the expiration of 100 years from the time at which adverse possession of the benefice shall have been obtained (f). Money secured by mortgage or judgment, or otherwise charged upon land, and also legacies, are to be deemed satisfied at the end of twenty years, if no interest should be paid, or written acknowledgment given in the meantime (g). The right to rents, whether rents service or rents charge, and also the right to tithes, when in the hands of laymen (h), is subject to the same period of limitation as the right to land (i). And in every case where the period limited by the act is determined, the right of the person who might have brought any action or suit for the recovery of the land, rent or advowson in question within the period, is extinguished (k).