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.
Extinction of rent.
The constitutional maxim (q) - "Nullum tempus occurrit regi " - has been gradually broken in upon, (1) by the statute 21 Jac. I. c. 2 (r), which disabled the Crown from claiming any manors, lands, or hereditaments, except liberties and franchises, under a title accrued sixty or more years before the then session of Parliament; and (2) by the Crown Suits
Adverse possession as against the Crown.
(l) Re Anderson, 1905, 2 Ch. 70; Me Coole, 1920, 2 Oh. 530.
(m) Owen v. Be Beauvoir, (1847) 16 M. & W. 547; Be Beanvoir v. Owen, (1850) 5 Ex. 166; 19 L. J. Ex. 177; Lord Chichester v. Hall, (1851) 17 L. T. (O. S.) 121.
(n) Archbishop of Dublin v. Trimleston, (1849) 12 Ir. Eq. R. 251, 264.
(o) Woodcock v. Titterton, (1864) 12 W. R. 865.
(p) Bickinson v. Teasdale, (1862) 1 D. J. & S. 52; 32 L. J. Ch. 37; cf. Ccope v. Cresswell, (1866) 2 Ch. 112, 126; 36 L. J. Ch. 114; and see Pears v. Laing, (1871) 12 Eq. 41; 40 L. J. Ch. 225.
(q) Co. Litt. 119 a.
(r) Sec as to practice in Crown suits, 21 Jac. I. c. 14; Doe v. Morris, (1835) 2 Bing. N. C. 189; A.-g. v. Parsons, (1836) 2 M. & W. 23; and see Crown Suits, etc. Act, 1865, s. 52.
Act, 1769 (s), amended by the Crown Suits Act, 1861 (t), which created a limitation of a permanent kind, by enacting that the king should not sue any persons for any manors, lands, or hereditaments (other than liberties or franchises) on any title which had not accrued within sixty years before the commencement of such suit. The Real Property Limitation Acts, 1833 and 1874, as they do not expressly name, do not apply to the Crown (u), and do not, therefore, alter the period of limitation as to Crown rights. The Prescription Act, 1832, is, on the contrary, expressed to be binding on the Crown.
As to title by adverse possession in lands belonging to the Duchy of Cornwall, reference may be made to the Acts of 7 & 8 Vict. c. 105; 23 & 24 Vict. c. 53; and the Crown Suits Act, 1861, s. 2, which assimilates the limitation applicable to actions and suits by the Crown to actions and suits by the Duke of Cornwall.
As against lands of the Duchy of Cornwall.
The liability to be re-opened which is incident to a foreclosure, even when the decree is made absolute (x), renders the exercise of considerable caution necessary on purchasing property, the title to which depends on such a decree. The relief is wholly discretionary; and it is impossible to formulate definite rules as to what circumstances will induce the Court to exercise its discretion; each case must be decided upon its merits (y). The Court will re-open a foreclosure decree absolute, where there has been fraud or collusion in obtaining the decree (z): and generally, where the mortgagor has been taken by surprise, or has been unavoidably absent, and therefore ignorant of the proceedings (a); or where the debt was of very much smaller amount than the value of the property (b); and, it seems, in any case of extreme hardship (c). But in all these cases, except that of fraud, it is essential to the obtaining of relief that the mortgagor should take prompt action (d). A purchaser who acquires foreclosed property from the mortgagee with notice, actual or constructive, of the existence in the foreclosure proceedings of any of these elements, stands in no better position than the mortgagee (e); and the fact that he agreed to purchase the property either before, or immediately after, the foreclosure decree became absolute, is sufficient to disentitle him to any sympathy as against the mortgagor (f). But a person having notice may obtain a good title if his vendor purchased from the mortgagee in good faith and without (notice (g).
Purchases of foreclosed property.
(s) See Tuthill v. Rogers, (1841) 1 J. & L. 36; 6 Ir. Eq. R. 429.
(t) Ss. 1 and 3; Bee Re Maxwell's Estate, (1891) 28 L. R. Ir. 356. A title acquired by such adverse possession may, it seems, be forced on a purchaser; Tuthill v. Rogers, sup.
(u) Magdalen College Case, (1615) 11 Co. at p. 68 b; Re Cuckfield Burial Board, (1854) 19 Beav. 153; 24 L. J. Ch. 585.
(x) Thornhill v. Manning, (1851) 1 Si. N. S. 451; 20 L. J. Ch. 604.
(y) lb.; Campbell v. Holyland, (1877) 7 Ch. D. 166; 47 L. J. Ch. 145; Re Parrola, Ltd., 1909, 2 Ch. 437; Gee v. Liddell. 1913, 2 Ch. 62.
(z) Burgh v. Langton, (1724) 5 Br. P. C. 213; 2 Eq. Ca. Ab. 609, pl. 5; Loyd v. Mansell, (1722) 2 P. W. 73; Gore v. Stacpoole, ,(1813) 1 Dow, 18; Harvey v. Tebbutt, (1820) 1 J. & W. 197; Joachim v. M'douall, (1798) 9 Si. 314, n.; Abney v. Wordsworth, (1701) ib. 317, n.
Where the title to land is registered it is provided by the Land Registration Act, 1925 (h) (which takes the place of the Land Transfer Acts, 1875 to 1897), that the Statutes of Limitations (therein called "the Limitation Acts ") shall apply to registered land in the same manner as to land not registered, except that where, if the land were not registered, the estate of the person registered as proprietor would be extinguished, such estate shall not be extinguished, but shall be deemed to be held by the proprietor for the time being in trust for the person who by virtue of such acts has acquired title against any proprietor, but without prejudice to the interests of any person interested in the land whose interest is not extinguished by the said Acts. Any person claiming to have acquired a title under the Limitation Acts to a registered estate may apply to be registered as proprietor thereof, and the registrar, on being satisfied as to the applicant's title, is to enter him as proprietor, with absolute, leasehold, qualified, or possessory title, as the case may require, but without prejudice to any interest protected by entry on the register which may not have been extinguished under the Acts, and such registration (subject as aforesaid) is to have the same effect as registration of a first proprietor; but any person interested may apply to the Court for the determination of any question arising under the section. The section also provides for the compensation of a purchaser or person deriving title under him, whose title, being registered or protected on the register, is prejudicially affected by an entry under the section. The section provides for rules being made for applying its provisions to cases where an easement, right or privilege has been acquired by prescription (i). Where any person is registered as first proprietor with a possessory title only, then s. 75 does not affect any adverse claim in respect of length of possession of any other person who was in possession at the time when the registration of the first proprietor took place (k).