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An Act for the Limitation of Actions and Suits relating to 3 & 4 W. 4,
Real Property, and for simplifying the Remedies for
[24th July, 1833.]
(a) Except as mere matter of history, and for the purpose of shewing the extensive nature of the amendments introduced into this branch of the law, it would be immaterial to advert to its previous state. With this view, however, it may not be entirely useless to notice briefly its leading features and defects.
The periods of limitation which previously existed, depended mainly upon the 32 Hen. 8, c. 2, 21 Jac. 1, c. 16, and 4 Hen. 7, c. 24, upon the rules laid down by courts of justice respecting legal memory and presumption.
By 32 Henry 8, c. 2, a writ of right on the seisin of an ancestor (to which, till then, there was no limit except the
reign of Richard the First), was con-
The statute 21 Jac. 1, c. 16, limited
3 & 4W.4, and by the authority of the same, That, the words and exMeaning of pressions hereinafter mentioned, which in their ordinary sigthe words in nification have a more confined or a different meaning, shall,
in this act, except where the nature of the provision or the
next after his right of entry accrued. This, with the single exception of fine and non-claim, was the first and is the only limit by statute to a right of entry, which at common law was never taken away by lapse of time, but only by descent cast, discontinuance, or warranty.
The statute of 32 Hen. 8, c. 2, contained no saving, except as to rights which were in existence when it was passed; but 21 Jac. 1, c. 16, saved the right of persons under disability, when their rights accrued.
Besides these, the other statutes of limitation are the 9 Geo. 3, c. 16, by which the party is precluded from recovering upon a title beyond sixty years; but the operation of this act is very much limited, as it does not extend to liberties, franchises, or lands parcel of an honor which has been put in charge within sixty years, there being few lands which are not part of an honor remaining in the crown and continuing in charge; the 10 & 11 Wm. 3, c. 14, by which no writ of error for reversing a fine, or a recovery, or a judgment, can be brought after twenty years; and the 14 Geo. 3, e. 20, by which common recoveries cannot be disputed after twenty years, although the deed for making the tenant to the precipe be lost, or, if the deed be produced, although the record be lost.
There were certain parties, estates, and interests, to which none of the statutes of limitation applied. For example, the statutes of limitation did not extend,
1st. To any incorporeal hereditaments, except quit rents and prescriptive services. Rents created or re
served by deed or act of parliament, were not within the 32 Hen. 8, c. 2, s. 4, because the statute only applied to cases where it was necessary to allege seisin; although the courts were in the habit of holding, that nonpayment for twenty years afforded a prima facie presumption of a release, and the receipt of them for twenty years, the like presumption of a grant, -nor to prescriptions by a que estate, as, where the right was claimed in respect of the ownership of an estate in land, as, common appendant, or the right to require corn to be ground at a mill; nor to actions or prescriptions in discharge, as, exemption from toll or services, or from common by certain beasts, &c.; nor to actions or prescriptions for casual rights or services which might not occur during the period of limitation, as, heriots, wrecks, estrays, royal fish, &c.; nor to rights of way, water, light, and other easements; nor annuities, or legacies charged upon land, judgments, or other specialties; nor to tithes in lay hands, for, by the 31 Hen. 8, c. 13, lay proprietors have the same rights as ecclesiastical persons; nor to advowsons, for, although they were within the 32 Hen. 8. c. 2, they were exempted from any limitation by the 1 Mary, c. 5, and 7 Anne, c. 18; nor to corporations aggregate, because they have no "predecessor.”
2ndly. Nor to ecclesiastical bodies, colleges, and hospitals.
3rdly. Nor to actions for dower, because seisin need not be alleged; nor writs of escheat, because the seisin is not traversable in them; nor to actions of waste, because the land is not directly in demand.
context of the act shall exclude such construction, be inter- 3 & 4 W. 4, preted as follows: (that is to say,) the word "land" shall
“ Land." In many of the preceding cases, the rights, if they did not claim within courts have been in the habit of sup- five years after their rights of entry plying the deficiencies of the statute accrued, unless under disabilities, and law by presuming that deeds have then within five years after the rebeen executed and lost; and in doing moval of their disabilities. this they have adopted the period of The commissioners, after observing twenty years, during which continued that in many cases the statutes of lienjoyment or continued disuse was mitation did not sufficiently protect sufficient to found a presumption that purchasers, and that in others (alluding there had been a grant or a release. probably to the act just adverted to) It would be idle now to go into the they restricted too much the right of cases on the subject, but those who recovery, make the following observamay be curious will find a tolerably tions:–“But the shorter period of lifull account of the leading authori- mitation now in use, established by the ties on the doctrines of presuming statute of 4 Hen. 7, c. 24, we consider grants and releases, in my Essay on anomalous, unjust, and mischievous. Marketable Titles, p. 410-517. However it may have been adapted to
the times in which it passed, when
the quieting of titles after the long By the effect of this act, the acts of civil wars of York and Lancaster the 2 & 3 Wm. 4, c. 100, for short- might require some extraordinary reening the time required, in claims of medy, it is not suited to the present modus decimandi, or exemption from, state of society. It proceeds not on or discharge of tithes,—the 2 & 3 the long acquiescence of the claimant Wm. 4, c. 71, for shortening the time or those whom he represents, which is of prescription in certain cases,—and the just ground of prescription; but on the 3 & 4 Wm. 4, c. 42, s. 3, for the the act of the party in possession, who, limitation of actions of debt on spe- to derive any benefit from it, must be cialties, &c. (which are given in the considered as holding an estate to following pages), the statutes of limi- which another is legally entitled. A tation are now reduced to a simple convenience, certainly, sometimes is and uniform system, and extended to experienced from a bona fide purchaser the various classes of persons, and the being enabled, by levying a fine with various estates and interests in land, proclamation, to protect himself against and remedies for their recovery,
which a lawful title which is discovered after were not previously within their oper- his purchase, and which, though ation.
using reasonable diligence, he could By the 4 Hen. 7, c. 24, a fine with not have detected earlier. If the pracproclamation was made a bar to all tice of acquiring a title in this manner persons having present rights of en- could be confined to cases of peculiar try, and not being under any disabi- hardship, the law would be salutary, lities, if they did not claim within five and might on that ground be justiyears after the proclamation made; to fied. But unfortunately it is equally all persons under disabilities, if they applicable to purposes of fraud.” By did not claim within five years after the act for abolishing fines, this mode their disabilities were removed; and of acquiring a title is in effect tacitly to all persons not having present superseded.