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.
Expenses under Public Health Act, 1875.
What cases fall within s. 8.
A purchaser can be compelled to accept a title depending on adverse possession, verified like any other fact (m). In Atkinson and Horsell's Contract (n), the title under the contract commenced with the will of a testator who devised to his son J. for life, with remainder to J.'s sons and daughters in tail, with remainder to the testator's right heirs. The testator died in 1842, and his son J. died without issue in 1874. It being erroneously assumed that the testator's heir was to be ascertained at the death of J. instead of at the death of the testator, M., a daughter of a younger son of the testator, entered into possession in 1874, and continued in possession until her death in 1902. The vendor claimed through M. The purchaser objected that he was entitled under the contract to a documentary title commencing with the will of the testator, and that he was not bound to take a title under the Statute of Limitations. But it was held by Swinfen Eady, J., and by the Court of Appeal (Fletcher Moulton, L. J., dissenting), that the title could be forced upon the purchaser.
Purchaser compelled to accept title depending on Statute of Limitations.
(g) Spickernell v. Hotham, (1854) Kay, 669; 2 Eq. R. 1103; and see Be Dixon, 1900, 2 Ch. 561; 69 L. J. Ch. 609.
(h) Hornsey Local Board v. Monarch Inv. Bld. Soc, (1889) 24 Q. B. D. 1; 59 L. J. Q. B. 105; and see Hampstead Corp. v. Caunt, 1903, 2 K. B. 1; 72 L. J. K. B. 440, as to liability under Metropolis Management Acts, 1855 and 1862.
(i) Skene v. Cook, 1902, 1 K. B. 682.
(k) Re Stuckley. 1906, 1 Ch. 76.
(l) Toft v. Stephenson, (1848) 7 Ha. 1; (1851) 1 D. M. &. 28; (1854) 5 D. M. & G. 7.35.
(m) Garnet v. Bonnor, (1885) 33 W. R. 64; 54 L. J. Ch. 517; Atkinson and Horsell's Contract, 1912, 1 Ch. 2; 1912, 2 Ch. 1.
(n) 1912, 1 Ch. 2; 1912, 2 Ch. 1.
The rule that a title depending upon the Statute of Limitations can be forced upon a purchaser does not take away the right of a purchaser, under an open contract, to require a thirty years' title to be shown (o).
Possession for a time exceeding the statutory limit not only bars the remedy, but also extinguishes the right of the original owner (p). It is incorrect to say that s. 34 of the statute operates as a conveyance. The mode in which the statute operates is stated by Cozens-hardy, M. R., in Atkinson and Horsell's Contract: - "The true view is this, that whenever you find a person in possession of property that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute when once you have extinguished the right of every other person to challenge it. That is the effect of s. 34 of the Real Property
Possession under the Act bars the right, and not the remedy only.
(o) Jacobs v. Revell, 1900, 2 Ch. 858; L. P. Act, 1925, s. 44.
(p) See s. 34; Scott v. Nixon, (1843) 3 D. & War. 388; 6 Ir. Eq. E. 8; Burroughs v. M'creight, (1844) 1 J. & L. 290; 7 Ir. Eq. R. v49; Boiling v. Hobday, (1882) 31 W. R. 9. A subsequent entry by a person so barred will be merely a trespass; Bryan v. Cowdal, (1873) 21 W. R. 693; nor will a vesting order, vesting the mortgagee's right in his representatives, revive the title of the mortgagee, when it has once been barred; Hemming v. Blanton, (1873) 42 L. J. C. P. 158; 21 W. R. 636; and see Hawkins v. Lord Penrhyn, (1878) 4 A. C. 51; 48 L. J. Ch. 304. The possession of a stranger to be so inconsistent with that of the real owner as to cause time to run against the latter need not be such as necessarily to exclude third parties: e.g., it need not be accompanied by the erection of fences; Seddon v. Smith, (1877) 36 L. T. 168; and see Des Barres v. Shey, (1874) 29 L. T. 592; 22 W. R. 273. The payment of money into Court under the L. C. C. Act, 1845, s. 76, does not interfere with the running of the statute in favour of a person who was in possession with a defeasible title, when the company paid the money in; such person is still to be considered in possession for the purpose of continuing to enjoy the income as it was enjoyed previously to possession being handed over to the company; but the Court will not pay out the money until the full statutory period has elapsed; Douglass v. L. & N. W. R. Co., (1857) 3 K. & J. 173, 183; Ex p. Winder, (1877) 6 Ch. D. 696, 703; 46 L. J. Ch. 572; Gedye v. Commrs. of Works, 1891, 2 Oh. 630; 60 L. J. Ch. 587; Re Harris, 1901, 1 Oh. 931; 70 L. J. Ch. 432; Ex p. Burdett Coutts, 1927, 2 Ch. 98.
Limitation Act, and that explains how the person who has been in possession for more than the statutory period does get an absolute legal estate in the fee, and there is nobody who can challenge the presumption which his possession of the property gives" (q). This explanation of the effect of the statute was expressly concurred in by Fletcher Moulton, L. J., although he dissented from the decision. "I desire to express my entire agreement," said the Lord Justice (r), "with the explanation given by the Master of the Rolls of the operation of the statute. . . . Possession is prima facie evidence of right, and that evidence becomes conclusive when the rights of all other people are extinguished. That is the effect of the statute. The metaphor in Scott v. Nixon (s) used by Lord St. Leonards of its being analogous to a conveyance is a very dangerous metaphor, the danger of which was pointed out in Tichborne v. Weir (t)."
The title acquired by the wrongdoer has the same legal character as that lost by the rightful owner, and is freehold or leasehold accordingly (u); and where the legal estate is acquired against trustees the trusts, it seems, are also extinguished (x); a person who is in possession, but who has not acquired an indefeasible title under the statute, has, as against everyone but the rightful owner, an interest which may be inherited, devised, or conveyed (y); and though his possession may have lasted only for a year, he may, without further proof of title, maintain ejectment against a person (other than the rightful owner) who comes and turns him out (z); in other words, he may as against strangers defend his right of possession until, by force of the statute, it has ripened into a right of property.