This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(g) Soar v. Ashwell, sup.; and see Be Gallard, 1897, 2 Q. B. 8; 66 L. J. Q. B. 484; Re Dixon, 1900, 2 Ch. 561; 69 L. J. Ch. 609; M'ardle v. Gaughran, (1903) 1 Ir. R. 106; North American Land Co. v. Watkins, 1904, 1 Ch. 242, 250; 1904, 2 Ch. 233.
(h) Be Jane Davis, 1891, 3 Ch. 119; 65 L. T. 128; Be Barker, 1892, 2 Ch. 491; 66 L. T. 848; Williams v. W., 1900, 1 Ch. 152; 69 L. J. Ch. 77.
(i) See Be Oliver, 1927, 2 Ch. 323; Be Richardson, 1920, 1 Ch. 423.
In cases of concealed fraud, time does not begin to run until the fraud was, or, with reasonable diligence, might have been, discovered (i): but this is not to affect a purchaser in good faith for valuable consideration without notice or suspicion of the fraud.
The Act of 1833 expressly provides against any interference with the rules which guide a Court 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 the Act (k).
Rules of Equity as to acquiescence, etc, preserved.
Though formerly doubted, it is now settled that charities are within the statute; and the statutory bar extends, not merely to an absolute alienation, but also to an improvident lease (l). But in order that the charity may be bound, there must be some person competent to make a claim on its behalf; thus, where there is no trustee, or none properly] appointed, or where there are no ascertained objects of the charity, the Statute will not run (m): and where, as is generally the case, the charity estates are held upon express trusts, they fall within the saving of s. 25 of the Act of 1833, as modified nevertheless by s. 10 of the Act of 1874. Where real estate was conveyed to trustees upon charitable trusts by a deed which was void under the Charitable Uses
Charities within the Acts.
(i) S. 26 of the Act of 1833; Petre v. P., 1 Dr. 397; 21 L. T. (O. S.) 136; Dean v. Thwaite, (1855) 21 Beav. 621; Willis v. Earl Howe, 1893, 2 Ch. 545; 62 L. J. Ch. 690; Re Mccallum, 1901, 1 Ch. 143; 70 L. J. Ch. 206; and see Oelkers v. Ellis, 1914, 2 K. B. 139.
(k) S. 27. See Life Assoc. of Scotland v. Siddal, (1861) 3 D. F. & J. at pp. 72, 73; 4 L. T. 311; Thompson v. Eastwood, (1877) 2 A. C. 215; Blake v. Gale, (1885) 31 Ch. D. 196; (1886) 32 Ch. D. 571; Bulli Co. v. Osborne, 1899, A. C. at p. 363; 68 L. J. P. C. 49.
(l) A.-g. v. Payne, (1859) 27 Beav. 168; A.-g. v. Davey, (1859) 4 D. & J. 136; and see Magdalen Coll. v. A.-g., (1857) 6 H. L. C. 189; Magdalen Hosp. v. Knotts, (1879) 4 A. C. 324; 48 L. J. Ch. 579.
(m) Incorporated Society v. Richards, (1841) 1 D. & War. 258; A.-g. v. Persse, (1842) 2 D. & War. 67.
Act, 1736, and the trustees applied the property in accordance with the trust deed, for more than twelve years it was held that the statute ran in favour of the trustees against a person claiming under the grantor, though such person was himself one of the trustees (n).
No person is to be deemed to have been in possession of any land, within the meaning of the Acts, by reason merely of his having made an entry thereon (o): but this refers to a merely formal entry. If A., the owner, actually turn B., the occupier, out of possession, this saves the statutory bar, though A. retain possession for only one hour, and B. immediately resume it(p). Although a forcible entry by the lawful owner would render him liable to prosecution under 5 Ric. II. c. 8, and also in some cases to a civil action (q), nevertheless, if by such means exclusive possession is even temporarily obtained, the running of time under the statute is interrupted (r). An entry by a landlord of a tenant at will to do repairs will not set the statute running afresh (s).
By the Act of 1833, s. 7, the right of a person entitled subject to a tenancy at will is to be deemed to have first accrued, either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy is to be deemed to have determined; but no mortgagor or cestui que trust is to be deemed a tenant at will within the meaning of this clause to his mortgagee or trustee (t). Where a purchaser is let into possession before completion, he is prima facie a tenant at will within the section (u), and where an intended lessee at a peppercorn rent entered and retained possession without acknowledgment of the lessor's title or payment of rent, he was held to be a cestui que trust within the proviso (x). In cases of express trust, a cestui que trust, whose possession is consistent with the trust, is, for general purposes, tenant at will to his trustee (y); and the object of the above provision seems to have been to preserve the legal estate of the trustee, which, under the old Law, was secured by the necessity that possession should be adverse in order to take away the right of entry (z). Where, however, the cestui que trust never goes into personal occupancy of the land, and a stranger occupies for the statutory period without payment of rent or acknowledgment of title, he thereby acquires a valid title to the fee simple (a).
Tenancy at will.
Mortgagor and cestui que trust.
(n) Churcher y. Martin, (1889) 42 Ch. D. 312; 58 L. J. Ch. 586.
(o) S. 10 of 3 & 4 Wm. IV. c. 27.
(p) Randall v. Stevens, (1853) 2 E. & B. 641; 23 L. J. Q. B. 68; Worssam v. Vandenbrande, (1868) 17 W. R. 53; and cf. Soiling v. Broughton, 1893, A. C. 556; 63 L. J. P. C. 21; Hewitt on Limitations, 166.
(q) See Beddal v. Maitland, 17 Ch. D. 174; Jones v. Foley, 1891. 1 Q. B. 730; Hemmings v. Stoke Poges Golf Club, 1920, 1 K. B. 720.
(r) Randall v. Stevens, (1853) 2 E. & B. 641; 23 L. J. Q. B. 68; Hemmings v. Stoke Poges Golf Club, sup.; Hewitt on Limitations, 166.
(s) Lynes v. Snaith, 1899, 1 Q. B. 486; 68 L. J. Q. B. 275.
(t) See Drummond v. Sant, (1871) L. R. 6 Q. B. 763; 41 L. J. Q. B. 21; Sands to Thompson, (1863) 22 Ch. D. 614; 52 L. J. Ch. 406;