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.
The encroachment by a tenant is presumed to be for the benefit of the tenant during the term and afterwards of his landlord, and accordingly time will not run under the statute until the determination of the lease (b).
Encroachment by tenant.
The Court will presume that a father entering on the estates of his infant children, enters as their natural guardian, and not tortiously, unless the contrary be clearly shown; and will treat the case as that of a trustee (c), even after the determination of the infancy, unless something is done to alter the character of the possession (d). So, the entry by an uncle (the nearest male relative) upon lands of his infant niece, was not considered to be an entry by a stranger (e), nor the entry by guardians of a corporation (f); and persons may occupy as guests of the true owner so as not to become tenants at will (g). Where the money due upon a mortgage has been paid off, but the legal estate has not been reconveyed to the mortgagor, a tenancy at will is created between mortgagee and mortgagor, and time begins to run accordingly (h).
Entry by parent on estate of children.
Warren v. Murray. 1894, 2 Q. B. 648; and judgment of Kay, L. J., 64 L. J. Q. B. 42; East Stonehouse Urb. Co. v. Willoughby, 1902, 2 K. B. 318, 334; 71 L. J. K. B. 873.
(«) Doe v. Rock, (1842) 4 Man. & G. 30; and see Doe v. Carter, (1847) 9 Q. B. 863; 18 L. J. Q. B. 305; Westbrook v. Kerrich, (1862) 3 F. & F. 59.
(x) Drummond v. Sant, sup.; Warren v. Murray, sup.
(y) See Sag. 14th ed. 480.
(z) Gatrard v. Tuck, (1849) 8 C. B. 231; 18 L. J. C. P. 338; Scott x. S., (1854) 4 H. L. C. at p. 1085; 18 Jar. 755; Drummond v. Sant, (1871) L. R. 6 Q. B. 763; 41 L. J. Q. B. 21.
(a) Melling v. Leak, (1855) 16 C. B. 652; 24 L. J. C. P. 187.
(b) Whitmore v. Humphries, (1871) L. R. 7 C. P. 1; 41 L. J. C. P. 43; East Stonehouse Urb. Co. v. Willoughby, 1902, 2 K. B. 318; 71 L. J. K. B. 873; Woodfall, 22nd ed. 281, 926.
(c) Thomas v. T., (1855) 2 K. & J. 79; 25 L. J. Ch. 159; Wall v. Stanwick, (1887) 34 Oh. D. 763; 56 L. J. Ch. 301; Re Hobbs, (1888) 36 Ch. D. 553; 57 L. J. Ch. 184.
The right of a person entitled subject to a tenancy from year to year or other period, without any lease in writing, is to be deemed to have accrued at the end of the first year or other period, or last receipt of rent, which shall last happen (i).
Tenancy from year to year.
The acknowledgment in writing of title, given to the person entitled or his agent by the person in the actual possession or receipt of the profits of the land or receipt of the rent, is equivalent to such possession or receipt by the person so entitled (k), and time is constantly running from the last acknowledgment (I).
Right of action saved by acknowledgment of title.
Whether a particular writing amounts to a sufficient acknowledgment of title within s. 14, is a question for the
What is a sufficient acknowledgment under s. 14.
(d) Tinker v. Rodwell, (1893) 69 L. T. 591; and see Mccormack v. Courtney, (1895) 2 I. R. 97; Hewitt on Limitations, 193, 194.
(e) Pelly v. Batcomb, (1863) 4 Giff. 390; 9 Jur. N. S. 1120; aff. (1865) 11 Jur. N. S. 52; 34 L. J. Ch. 233; but Turner, L. J., declined to express any opinion.
(f) Brighton v. Brighton Guardians, (1880) 5 C. P. D. 368; 49 L. J. C. P. 648.
(g) Peakin v. P., (1895) 2 I. R. 359.
(h) Sands to Thompson, (1883) 22 Ch. D. 614; 52 L. J. Ch. 406. As to what amounts to a determination of a tenancy at will, see Turner v. Doe, (1842) 9 M. & W. 643; 11 L. J. Ex. 453; Doe v. Carter, (1847) 9 Q. B. 863; Randall v. Stevens, (1853) 2 E. & B. 641; 23 L. J. Q. B. 68; Jarman v. Hale, 1899, 1 Q. B. 994; 68 L. J. Q. B. 681.
(i) Real Property Limitation Act, 1833, s. 8; see Lyell v. Kennedy, (1889) 14 A. C. 437; 59 L. J. Q. B. 268.
(k) S. 14.
(l) Burroughs v. M'creight, (1844) 1 J. & L. 290, 304; 7 Ir. Eq. R. 49. See Darby & Bos. 2nd ed. p. 38.
Court, and not for a jury to decide (m). In one case (n), the purchaser raised objection to the title upon the ground that on inspection of the property he had discovered an inscription on a wall (forming one side of the house and fronting a street) stating that the wall belonged to the East India Co. James, L. J., delivering the judgment of the Court, said: - "Where there is a boundary wall, and that boundary wall remains undisturbed, and an inscription is allowed to remain on it which states to all the world that it is the boundary wall of the adjoining proprietor, it seems to us idle to suppose that any question of the Statute of Limitations, or of adverse possession, could properly arise " (o).
Under this section, the acknowledgment must be signed by the party in possession; and the signature of an agent is not sufficient (p). As between landlord and tenant, ,the receipt of rent is equivalent to the receipt of the profits of the land (q).
By whom the acknowledgment most be signed under s. 14.
The right of a remainderman accrues when his estate falls into possession (r): and this, though he may have waived a previous forfeiture (s), and though he, or the person through whom he claims, may have been in possession previously to the creation of the particular estate (t). The right of the remainderman must, under s. 2 of the Act of 1874, be asserted either within twelve years from the date at which the right accrued to the person whose prior interest has determined, or within six years from the date at which the estate of the remainderman became vested in possession, whichever period is the shorter. Where rent amounting to the yearly sum of 20s. or upwards, reserved by a lease in writing, is received by a wrongful claimant, no fresh right accrues to the reversioner upon the determination of the lease (u); and the title to the reversion is in effect transferred to the wrongful recipient of the rent: but, in order to bar the rightful reversioner, there must be actual receipt of the rent by a wrongful claimant; its mere retention by the tenant does not affect the landlord's title to the land (x).