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.
Estates in remainder, etc. - when time begins to run against.
(m) Doe v. Edmonds, (1840) 6 M. & W. 295; Morrell v. Frith, (1838) 3 M. & W. 402; 2 Jur. 619; Sidwell v. Mason, (1857) 3 Jur. N. S. 649; 26 L. J. Ex. 407.
(n) Phillipson v. Gibbon, (1871) 6 Ch. 428; 40 L. J. Ch. 406.
(o) 6 Ch. p. 434; sed queere.
(p) Ley v. Peter, (1858) 27 L. J. Ex. 239; Lessee of Corp. of Dublin v. Judge, (1847) 11 Ir. L. R. 8.
(q) S. 35.
(r) S. 3; see Doe v. Edmonds, (1840) 6M.& W. 295; Duke of Leeds v. Earl Amherst, (1847) 2 Ph. at p. 125; 16 L. J. Ch. 5.
(s) S. 4. This section includes a breach of condition, and is to be construed liberally; Astley v. Earl of Essex, (1874) 18 Eq. 290; 43 L. J. Ch. 817; but see Clarke v. C, (1868) Ir. R. 2 C. L. 895.
(t) S. 5, as amended and re-enacted by s. 2 of the Act of 1874; and see Doe v. Edmonds, (1840) 6 M. & W. 295; Re Bermingham's Estate, (1843) 5 I. R. Eq. 147.
Lease in writing.
By s. 7 of the Act of 1874 the right of a mortgagor (y) redeem (y) is to be barred at the end of twelve years from the mortgagee taking possession, or last giving a written acknowledgment of title. If a mortgagee while in possession is himself entitled to such possession in respect of a life or other limited interest in the equity of redemption, the time during which he is so entitled will not be counted in the statutory period (z). Possession of any of the land comprised in the mortgage is sufficient to make time run against the mortgagor (a).
Equity of redemption, when to be barred.
If mortgagee is entitled to possession, as being interested in equity of redemption, time does not run.
When the right of a mortgagor to redeem is barred his title to the land or rent becomes under s. 34 of the earlier
No revival by subsequent acknowledgment where right to redeem is extinguished.
(u) S. 9; see Doe v. Angell, (1846) 9 Q. B. 328; see ib. p. 355; Baines v. Lumley, (1868) 16 W. R. 674, as to the construction of the word "rent" throughout s. 9; and see Grant v. Ellis, (1841) 9 M. & W. 113. As to what is "rent wrongfully received" within this section, see Shaw v. Keighron, (1868) 3 I. R. Eq. 574; Williams v. Pott, (1871) 12 Eq. 149; 40 L. J. Ch. 775; Lay bourn v. Gridley, 1892, 2 Ch. 53; 61 L. J. Ch. 352.
(x) Doe v. Oxenham, (1840) 7 M.& W. 131; Chadwick v. Broadwood, (1840) 3 Beav. 308; 10 L. J. N. S. Ch. 242; Arch bold v. Scully, (1861) 9 H. L. C. 360; 5 L. T. 160; see. however, Ex p. Jones, (1841) 4 Y. & C. 466; as to rents of mines reserved \n specie, see Denys v. Shuck-burgh, (1840) 4 Y. & C. 42.
(y) Browne v. Bishop of Cork, (1837) 1 D. & Wal. 700.
(z) Baffety v. King, (1836) 1 Ke. 601; 6 L. J. N. S. Oh. 87; Tull v. Owen, (1840) 4 Y. & C. at p. 201; Hyde v. Dallaway, (1843) 2 Ha. 528; Wynne v. Styan, (1847) 2 Ph. 303; Browne v. Bishop of Cork, (1837) 1 D. & Wal. 714.
(a) Kinsman v. Rouse, (1881) 17 Ch. D. 104; 50 L. J. Ch. 486.
Act "extinguished" (b). The section applies equally to the case of a mortgagor in possession and a mortgagee in favour of the former, even though a prior mortgagee has been in possession during part of the statutory period; and when the title has become barred it is not affected by a subsequent acknowledgment (c).
Or where mortgagee's title is barred.
Where the owner has been out of possession for more than the statutory period, and the rents have been received by an agent as agent for an unascertained principal, time does not run against the owner from the commencement of the agency; but the acts of the agent may be ratified by the owner within a reasonable time of the true ownership being ascertained (d).
Ratification of acts of agent acting for unascertained principal.
Sect. 8 of the Real .Property Limitation Act, 1874, provides that no money secured by any mortgage, judgment, or lien, or otherwise charged upon land, is to be recovered 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 there has been some payment by the person liable to pay (e) in respect of principal or interest, or acknowledgment of right given in writing: in which case the statutory period is to run from the date of such payment or acknowledgment. From the above period must be excluded the time (if any) during which the person entitled to the charge has been also entitled to the possession of the land (/). Where a mortgagee is also tenant for life of the mortgaged estate, time does not run against the mortgage title until his death (g).
For recovery of money charged on Land.
Time to be excluded.
(b) Re Alison, (1879) 11 Ch. D. 284; 27 W. R. 389, 537; Sanders v. 8., (1881) 19 Ch. D. 373; 51 L. J. Ch. 276. See as to the meaning of the word "extinguished" in the statute, Re Nisbet and Pott's Contract, 1906, 1 Ch. 386.
(c) Kibble v. Fairthorne, 1895, 1 Oh. 219; 64 L. J. Ch. 184; Samuel Johnson & Sons v. Brock. 1907, 2 Ch. 533.
(d) Lyell v. Kennedy, (1889) 14 A. C. 437; 59 L. J. Q. B. 268; Mcaulife v. Fitzsimons, (1890) 26 L. R. Ir. 29.
(e) Harlock v. Ashberry, (1882) 19 Ch. D. 539; 51 L. J. Ch. 394; Newbould v. Smith. (1885) 29 Ch. D. 882; (1886) 33 Ch. D. 127; (1889) 14 A. C. 423; 61 L. T. 814.
(f) See Re Drax, 1903, 1 Ch. 781, 787; 72 L. J. Ch. 595 (case of a lien for unpaid purchase-money).
Expenses under the Public Health Act, 1875, s. 257, become a charge within the meaning of s. 8 of the Real Property Limitation Act, 1874, when incurred, and the period of limitation runs from that date (h). So, also, money paid by a limited owner for redemption of land tax is money charged on land within s. 8 of the Act of 1874 (i). A vendor's lien for unpaid purchase-money (with any interest payable thereon (k)) is "money payable out of land" (I).