3 & 4 Will. 4, c. 27, s. 28. Where a tenant for life of a mortgaged estate by deed admitted the payment of interest on the mortgage, this was not a sufficient acknowledgment of the debt, as against the remainderman, to prevent the Statute of Limitations from operation. (Gregson v. Hindley, 10 Jur. 383.) A. mortgaged an estate to B. for 1000 years. B. died, having bequeathed the mortgage to his widow. She also died; and in 1822 her personal representative entered into and continued in possession of the estate until 1838, when they sold and assigned the mortgage to C., who entered and continued in possession until 1843, when A.'s heir filed a bill to redeem, on the ground that the deed of assignment recited the mortgage, and conveyed the term to C., subject expressly to the equity of redemption of A., or his legal representatives. It was held, that the deed was not such an acknowledgment of the mortgagor's title as to make the estate redeemable. (Lucas v. Denison, 13 Sim. 584.) In 1816, the mortgagee, under a mortgage created some years before, entered into possession of the mortgaged premises, and in 1827 he executed a transfer of his mortgage to another. The transferee thereupon entered into possession, and in 1828 executed a transfer of his mortgage to a second transferee, who then entered into possession. The mortgagor was not a party to either transfer, and had not from the time the original mortgagee entered into possession received any acknowledgment in writing of his equity of redemption. In 1833, the above stat. 3 & 4 Will. 4, c. 27, s. 28, was passed. In 1845, the representative of the mortgagor filed his bill for redemption against the representatives of the second transferee. It was held, that the statute operated retrospectively, by taking from the mortgagor the benefit of the acknowledgment which had already been made of the mortgage title in the transfers of 1827 and 1828, and that the suit (as to that estate) was therefore barred. (Batchelor v. Middleton, 6 Hare, 75.) A mortgagee in fee, who had been in possession for more than twenty years, died in 1805, leaving a will, by which he devised the property to his eldest son in tail, with divers remainders over, and appointed him his executor and residuary legatee. In 1812, the person claiming under the will of the mortgagor filed a bill against the son to redeem, and the suit was compromised in 1814 on the terms of the son paying a sum for the equity of redemption, which was accordingly conveyed to him. He afterwards died without issue, and without having done any act to bar the entail created by his father's will. It was held, that his heir at law was entitled to the equitable fee, and that the remainderman under his father's will had no title in equity. It was considered that the same effect was to be given to the son's acknowledgment as if he had held only under the mortgage, and his father's will had not contained the limitations by which an estate tail was given to him, with remainders over. The consequence was that effect must be given to the conveyance of the equity of redemption to the son, under which the respondents claimed, and that no effect was to be given to the limitation in the testator's will, by which he professed to give a remainder in fee to his daughters after the successive estates tail limited to his son. (Pendleton v. Rooth, 1 De G., F. & J. 81; 1 Giff. 35; 5 Jur., N. S. 840; 6 Jur., N. S. 182; 29 Law J., Ch. 265.) A mortgagee in possession for six years, without making any acknowledgment of the mortgagor's title, then purchased the interest of the tenant for life of the equity of redemption, and continued in possession for twenty years longer. It was held, that such possession was not adverse during the existence of the life estate so purchased, and that the stat. 3 & 4 Will. 4, c. 27, s. 28, was not therefore a bar to any suit for redemption by the remainderman or reversioner. Vice-Chancellor Wigram: "I cannot compel the purchaser to take a title depending on the operation of the Statute of Limitations under the circumstances of this case. The possession of the mortgagee appears to me, in point of fact, not to have been adverse. The 28th section supposes the existence of a person to whom the acknowledgment is to be made, as well as that of the party to make it; there must be not only a party to redeem, but one to be redeemed. The parties in this case were not, I think, in the situation which the statute contemplates as creating a bar. The mortgagee became in effect the tenant for life of the equity of redemption; the remainderman or reversioner may therefore pro perly look upon him as holding in that character. He would not necessarily refer his possession to any other title. It would be a surprise upon the parties interested in the property, after the expiration of the life interest, if they were told that the tenant for life had another and an adverse title, by means of which they are to be barred, and the tenant for life to acquire an absolute interest." (Hyde v. Dallaway, 2 Hare, 528.) The reason is not apparent why the mortgagee should not be allowed to make an admission (in writing signed by himself) of his mortgage title to a third person, of which the mortgagor may have the benefit; the statute however requires the admission should be made to the mortgagor himself or his agent, and by that the court is bound. (Batchelor v. Middleton, 6 Hare, 83, 84.) In Forsyth v. Bristow, 8 Exch. 716, it was questioned whether the acknowledgment to take the case out of the stat. 3 & 4 Will. 4, c. 42, s. 5, must be made to the creditor or his agent. (See post.) It was questioned whether since the statute 3 & 4 Will. 4, c. 27, the bar created by twenty years' possession by a mortgagee is defeated by his having kept accounts of the rents received by him. (Baker v. Whetton, 14 Sim. 426.) But it is observed by Sir E. Sugden, Real Prop. Stat. p. 117, 2nd ed., that keeping accounts "could hardly be held to supply the want of an acknowledgment; for during the twenty years prudence would require that an account should be kept, and after that period, when the right to redeem is barred, no one has a right to inquire how the owner, though formerly a mortgagee, has kept his accounts. The statute intended to put an end to such inquiries." Where an equity of redemption is put in settlement, though the tenant for life is the party bound to pay the interest upon the mortgage, yet the mere laches of the mortgagee to demand such interest from the tenant for life will not prejudice his claim against those in remainder. (Wrixon v. Vize, 2 Dru. & War. 192; Loftus v. Swift, 2 Sch. & L. 642.) It should be observed that there are no savings for disabilities of the mortgagor or his heirs in regard to the bar created by the 28th section. (Sugd. Real Prop. Stat., p. 118, pl. 45, 2nd ed.) A mortgagee, who holds property in pledge, is responsible for it in its integrity. Therefore, where a mortgagee of lands allowed the owners of adjacent coal mines to enter and work a mine for the purpose of exploring, which they did, and sold the coals, an account was directed against them all for the benefit of the mortgagor upon a bill to redeem, and the Statute of Limitations was held not to apply to a case of this kind, as between mortgagor and mortgagee. (Hood v. Easton, 2 Giff. 692.) 3 & 4 Will. 4, c. 27, s. 28. A Welsh mortgage is a conveyance of an estate redeemable at any time Welsh mortgages. on payment of the principal, with an understanding that the profits in the meantime shall be received by the mortgagee without account in satisfaction of interest. (See Talbot v. Braddyl, 1 Vern. 395; Lawley v. Hooper, 3 Atk. 280; Yates v. Hambly, 2 Atk. 237.) But it is probable that at the present day a court of equity will decree an account against the mortgagee of the rents and profits, whether the value was excessive or not beyond the interest, and notwithstanding the agreement that the profits shall be retained in lieu of interest. (Fulthorpe v. Forster, 1 Vern. 477; see Coote on Mortgages, 207, 212; 5 Jarm. Conveyancing, by Sweet, 96, 101.) A Welsh mortgagee has no remedy to compel redemption or foreclosure, (Longuet v. Scawen, 1 Ves. sen. 406,) but if a man be permitted to hold over twenty years after the debt has been fully paid, it seems that the mortgagor would be barred. (Fenwick v. Reed, 1 Mer. 125; 5 B. & Ald. 232; and see 2 Spence on Eq. Jurisd. pp. 616-618.) Where A., being entitled in fee to a freehold estate in remainder expectant on the decease of B., demised his interest to C. for a term of 500 years, subject to a proviso for redemption on payment of the sum of 1,000l. and interest, without any time being fixed by the proviso for payment of the money; the deed contained a covenant by A. for payment of the money on demand, and also a covenant that it should be lawful for B. to enter into the property, and to hold and enjoy the same until the payment of the principal money and interest: it was held, that the mortgage was in the nature of a Welsh mortgage; and a bill of foreclosure filed by B. against a person to whom A. had conveyed his 3 & 4 Will. 4, c. 27, s. 28. The reversionary interest, was dismissed, but without costs. (Teulon v. Curtis, VIII. LIMITATION OF TIME AS TO CHURCH PROPERTY AND Time of Limitation fixed. 29. Provided always, and be it further enacted, that it shall be lawful for any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital or other spiritual or eleemosynary corporation sole, to make an entry or distress, or to bring an action or suit to recover any land or rent within such period as hereinafter is mentioned next after the time at which the right of such corporation sole, or of his predecessor, to make such entry or distress, or bring such action or suit, shall first have accrued ; (that is to say,) the period during which two persons in succession shall have held the office or benefice in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the times of such two incumbencies and such term of six years taken together shall amount to the full period of sixty years; and if such times taken together shall not amount to the full period of sixty years, then during such further number of years in addition to such six years as will, with the time of the holding of such two persons and such six years, make up the full period of sixty years; and after the said thirty-first day of December, one thousand eight hundred and thirty-three, no such entry, distress, action, or suit shall be made or brought at any time beyond the determination of such period (u). (u) Where an ancient rent was payable out of lands A. and B., and the owner of the lands sold B. and charged others to indemnify the purchaser, and continued to pay the whole rent, no payment having been made to the purchaser of B. and the period prescribed by this section had elapsed, yet it was held that the purchaser's estate was still liable; for by the very terms of this section the period of limitation is to commence when the right to make an entry or distress or to bring an action or suit has first accrued, and to ascertain this terminus, recourse must be had to the third section, which defines it to be when the person in possession or receipt of the rent shall, while entitled thereto, have been dispossessed or have discontinued the possession or receipt of it. But here there was a continued receipt of the whole of the rent from the owner of A. and his ancestors, and as there was a common liability to its payment attaching on B., all the payments made by the owner of A. are sufficient to prevent the bar of the statute from operating in favour of the owner of B. The statute never began to run. (Archbishop of Dublin v. Lord Trimleston, 12 Ir. Eq. Rep. 251; Sugd. on Real Prop. Stat. 153, 2nd ed.) Before this act, ecclesiastical corporations, and generally all ecclesiastical persons seised in right of their churches, were not within any of the 3 & 4 Will. 4, c. 27, s. 29. Statutes of Limitation, and therefore could not bar their successors, by neglecting to bring actions for recovery of their possessions within the time prescribed for other persons, although an ecclesiastical person, who was guilty of such neglect, would himself have been barred. (Plowd. 358, 538; Statute of Limi11 Rep. 78b; 7 Roll. R. 151; 2 Bos. & Pull. 546. See 3rd Real Prop. R. tations. 58-62.) Although the Statute of Fines, 4 Hen. 7, c. 24, (ante, p. 157,) did not operate as a bar to the successors of bishops, rectors, or other ecclesiastical persons entitled to lands in respect of offices for life, yet each particular person was bound by a lapse of five years in his own time after the fine had been levied. (Runcorn v. Doe d. Cooper, 5 B. & C. 696; 8 D. & R. 450; Croft v. Howel, Plowd. 358; 1 Prest. Conv. 235; Magdalen College case, 11 Rep. 67.) The act 2 & 3 Will. 4, c. 71, for shortening the time of prescription in certain cases, extends to any ecclesiastical person, but tithes are excepted from that act. (Ante, pp. 2, 6.) The statute 2 & 3 Will. 4, c. 100, has shortened the time required for the valid establishment of claims of a modus decimandi or exemption from or discharge of tithes by composition real or otherwise. In the construction of this statute there was great difference of opinion, but Lord Cottenham, C., has concurred with the opinion of the majority of the judges, who think, that under the act the proof of the enjoyment of the discharge claimed for the prescribed time is a sufficient answer to a demand for tithes. (Salkeld v. Johnston, 1 Mac. & G. 242; 1 Hall & T. 329; 2 Exch. 256; 2 C. B. 749.) ADVOWSONS. Time of Limitation fixed. be recovered but 30. After the said thirty-first day of December, one thou- No advowson to sand eight hundred and thirty-three, no person shall bring any within three inquare impedit or other action, or any suit to enforce a right to cumbencies or present to or bestow any church, vicarage or other ecclesiastical sixty years. benefice, as the patron thereof, after the expiration of such period as hereinafter is mentioned; (that is to say,) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years; and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as, with the times of such incumbencies, will make up the full period of sixty years (x). (a) The provisions of this act, so far as relates to any right to present to or bestow any church, vicarage, or other ecclesiastical benefice, are extended to Ireland by 6 & 7 Vict. c. 54, and 7 & 8 Vict. c. 27. See 8 & 9 Vict. c. 51, as to costs of defending rights of patronage in Ireland. By stat. 1 Mary, sess. 4, c. 5, (which was extended to Ireland by stat. 10 Car. 1, st. 2, c. 6,) it was enacted, that the stat. 32 Hen. 8, c. 2, should not extend to a writ of right of advowson, quare impedit, assize of darrein presentment, nor jure patronatus, but the time of seisin to be alleged in such cases should be as it was at the common law before the making of the said statute, which was from the time of the commencement of the reign of Rich. 1. Before the statute of Mary, if the incumbent of an advowson had lived sixty years and died, and a stranger had presented, the patron could not maintain quare impedit or darrein presentment. (See Plowd. 371 b; Co. Litt. 115 a.) By the stat. 7 Anne, c. 18, (which was held not to be retrospective, 5 Ves. 3 & 4 Will. 4, c. 27, s. 30. 828,) it was enacted, that no usurpation should displace the estate of the patron, and that he might present on the next avoidance as if there had not been any usurpation; which provision, in effect, took away all limitations of suits about the right of patronage. (See 3 Bl. Comm. 250.) Incumbencies after lapse to be reckoned within the period, but not incumbencies to bishoprics. Lapse. 31. Provided always, and be it further enacted, that when on the avoidance, after a clerk shall have obtained possession of an ecclesiastical benefice adversely to the right of presentaafter promotions tion or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty or the ordinary, by reason of a lapse, such last-mentioned clerk shall be deemed to have obtained possession adversely to the right of presentation or gift of such patron as aforesaid; but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice, in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this act, be deemed a continuation of the incumbency of the clerk so made bishop (y). Lapse. (y) Presentation must be made by a common person within six calendar months after the death of the last incumbent, otherwise the right accrues to the ordinary, which is called a lapse. (3 Leon. 46; 2 Inst. 273; Wats. Cl. L. c. 12.) The six months commence from the time the patron has notice of the avoidance; (2 Burn, Eccl. Law, 327;) but if the clerk of a stranger be instituted and inducted, and the patron gives no disturbance within six months, he has no remedy for that turn, because induction is an act of which he is bound to take notice. (Ib. 329.) If the avoidance be by resignation or deprivation, the six months do not commence till notice of the avoidance given by the ordinary to the patron. (Com. Dig. Esglise, (H. 9).) But where the incumbent is himself patron, a sentence of deprivation is not necessary to render the first living void, the object of such a sentence being to give notice to the patron. (Apperley v. Bishop of Hereford, 3 Moore & Scott, 192; S. C., 9 Bing. 681.) If the bishop should not present within six months after the lapse to him, then the right to present goes to the archbishop; (Com. Dig. Esglise, (H. 11);) and if neither the bishop nor archbishop present, then to the crown, which is not confined to any time. (Cro. Car. 335; Plowd. 498.) It is clear that, as against the bishop at least, the patron may at any time present, notwithstanding six months have elapsed, provided advantage has not been taken of the lapse. (3 Moore & Scott, 114.) So that if after a lapse and before the bishop or archbishop has collated his clerk, the patron presents one, the latter shall be instituted. (Hutt. 24; Hob. 152, 154; 2 Inst. 273.) So after a lapse to the king, if the patron's clerk be presented, instituted and inducted, and die incumbent, before the king has taken advantage of the lapse, his right is gone. (Owen, 2-5; Cro. Eliz. 44, 119; 7 Rep. 28.) When an incumbent is made a bishop, the right of presentation to livings held by him vests for that turn in the king, and is called a prerogative presentation. This right of the crown was formerly doubted, (Wentworth v. Wright, Owen, 144,) but has since been fully established and acted on, but the right must be exercised in the lifetime of the person promoted, otherwise the turn of the crown is lost. (2 Bl. Rep. 770; Rex v. Bishop of London, 1 Show. 464; S. P., Show. P. C. 185; Com. Dig. Esglise, (H. 6); Archbishop of Armagh v. Attorney-General, 2 Br. P. C. 514.) If after a grant of the next presentation to a living the incumbent be made a bishop, by which the living becomes vacant, and the king is entitled to present, the grantee may present on the next vacancy occasioned by the death or resignation of |