Arrears of dower, -of rent, or of interest. Of what rents. c. 27, however, are also, not that the action shall be brought within six years, but that the arrears shall be recovered within that time or not at all (s). No arrears of dower, arising beyond six years next before the commencement of any action or suit to recover them, can be recovered or obtained (t). The sect. 41 is directed to only arrears of dower and to damages on account of such arrears, and not to the claim to dower itself, that is, to a third part of the husband's lands and hereditaments liable to it, to be set out by metes and bounds. That claim is, as we have already seen, within the 2nd section (u). No arrears of rent, or of interest for any sum of money charged upon or payable out of any land or rent, or for any legacy, arising beyond six years next after becoming due, or next after a written acknowledgment of them, are to be recovered (x). The 42nd section contemplates and provides for only the recovery of arrears of rent, arrears of interest for gross sums charged upon or payable out of any land or rent, and for legacies (y), and as against land or rent only, irrespective of the persons liable (z). The arrears of rent within the section 42 may be not only of money rents, but of rents of corn, cattle, fowl, or any other profit to be delivered or yielded, and even of corporeal services (a) for which a distress can be made. Where rent is charged upon or payable out of land, and not also secured by any collateral and personal obligation by specialty, the arrears of such a rent for only six years are recoverable (b). (8) 7 C. B. 587. (t) Sect. 41; Bamford v. Bam ford, 5 Hare, 203. (u) Vide ante, p. 332. (x) Sect. 42. (y) See James v. Salter, 3 Bing. N. C. 544; 7 C. B. 591; 1 M. & G. 651. (z) Harrisson v. Duignan, 2 Dru. & War. 295; Francis v. Grover, 5 Hare, 39; Hunter v. Nockolds, 1 M. & G. 640. (a) Co. Litt. 162 b. (b) Humfrey v. Gery, 7 C. B. 587. But arrears of a rent charged upon or payable out of land, and also secured by any such obligation, although not recoverable as against the land for a longer period than six years, are nevertheless recoverable under the 3 & 4 Will. 4, c. 42, s. 3 (c), for a period of twenty years. The unpaid portions of a sum in gross charged upon or payable out of land, and payable by instalments, are arrears of rent within the 42nd section (d); but when charged upon or payable out of rent are not within that section. It is very doubtful whether, where the instrument When not recreating the rent contains a clause of re-entry con- distress. coverable by ditional on there being no distress on the premises, such clause can be made available for the recovery of the arrears, which by the express terms of the statute cannot be distrained for, such clause being (e) in the nature of a power of distress (f). A power to sell or mortgage cannot be exercised to raise arrears of an annuity not recoverable by distress or action; and the demand itself, and not merely the remedy for its recovery, being barred by the 42nd section (g). remedy, re The arrears however, although not recoverable by Irrecoverable means of the ordinary remedy, may be obtained by by ordinary virtue of the possession of the land subject to the coverable by possession of charge, to the full extent; for the statute does not deprive the land. the claimant of the rights and benefits which such possession gives. Therefore where a jointress was in possession of the lands on which her jointure was charged, and the rents were for many years inadequate to answer it, but afterwards during such possession were more (c) Paget v. Foley, 2 Bing. N. C. 679; Strachan v. Thomas, 12 Ad. & E. 556; Manning v. Phelps, 10 Ex. 59. (d) Uppington v. Tarrant, 12 Ir. Ch. Rep. 262. (e) Litt. s. 327. (f) Per Smith, M. R., Smith v. Smith, 5 Ir. Ch. Rep. 88, 97. (g) Per Smith, M. R., Smith v. Smith, 5 Ir. Ch. Rep. 88, 100. None of a rent barred. Only arrears of ritance. than adequate, and she continued in possession, she was held entitled to hold the lands, as against claimants of charges puisné to her, until all the arrears were satisfied (h). But the possession of a receiver, unless where it may be treated as the possession of a prior creditor under the 42nd section, and in reference to interest or arrears of rent, cannot prevent the bar of the statute (¿). No arrears of a rent which is charged upon or payable out of land, and not secured by any collateral and personal obligation by specialty, but which is barred by the lapse of the statutory period, are recoverable (k). Arrears of rent within the 42nd section are arrears of rents of inhe- only those rents to which the c. 27, according to its title and preamble (1), was intended to apply, and which we have already shown (m). For the first time, the remedy by distress for such arrears, as well as by action or suit, is limited by this statute, but is not limited by the c. 42 (n). Not of con Arrears of conventional rents are not within the ventional ones. 42nd section (o). When such rents do not arise on a specialty the arrears are limited by the 21 Jac. 1, c. 16, s. 3 (p). Nor of arrears of annuity out of personalty. Arrears of in The arrears of an annuity not charged on land, but payable out of personal estate only, are not within the 42nd section, which therefore cannot be pleaded in bar to a claim for the arrears of such an annuity for more than six years (q). Only six years' arrears of interest can be claimed in terest on mort- a suit against a mortgagor or against persons claiming gages. (h) Battersby v. Rochfort, 10 Ir. Eq. Rep. 439. (i) Anon., 2 Atk. 15; Harrisson v. Duignan, 2 Dru. & War. 295. (k) James v. Salter, 3 Bing. N. C. 544. (1) Paget v. Foley, 2 Bing. N. C. 679. (m) Vide ante, p. 343 et seq. (n) 7 C. B. 580. (0) Paget v. Foley, 2 Bing. N. C. 690; Grant v. Ellis, 9 Mee. & W. 118. (p) Stacey v. Freeman, Hutt. 109. (q) Roch v. Callen, 6 Hare, 531; Ashwell's Will, 1 John. 112. under him for value (r); although the principal money be also secured by bond or covenant. or covenant. So in cases of mortgage without bond or covenant, Without bond mere equitable mortgages, liens, where the debt as against the person is barred by the Statute of Limitations, in cases of bankruptcy and insolvency, where the person of the debtor is discharged and only the land left to which the creditor can resort (s), arrears for only six years can be recovered. tors of mort So where a mortgagee sold the property in mortgage, When not and the heir and administrator of the mortgagor (t) had against crediassigned the equity of redemption for the benefit of the gagor. creditors of the mortgagor, in a suit by such assignee against the mortgagee claiming the surplus monies arising on such sale, deducting the mortgage monies and only six years' arrears of interest, the mortgagee was held to be entitled to only that amount of arrears (u). But where the mortgagees sold the mortgaged estate When against under a power of sale given to them by the mortgage, and paid the sale monies into court and afterwards petitioned the court in a suit for the administration of the estate of the mortgagee for the transfer of the funds to themselves on account of principal, interest and costs, claiming arrears of interest for nearly twenty years, they were held to be entitled to, as against the mortgagor and his assignee in insolvency on such petition, the whole interest claimed (x). them. The right of a mortgagee to tack his claim for ar- By tacking. rears of interest beyond six years, against either per sons claiming as volunteers under, or the heir of, the (r) Harrisson v. Duignan, 2 Dru. & War. 295; Hughes v. Kelly, 3 Ib. 482; Evans v. Bagwell, 2 Con. & L. 612; Hunter V. Nockolds, 1 Mac. & G. 640; 5 De Gex & S. 243; Shaw v. Johnson, 1 Drew. & S. 412; Bolding v. Lane, 1 De Gex, J. & S. 122; see 11 H. L. C. 134. (8) Per Wigram, V.-C., Du Vigier v. Lee, 2 Hare, 326. (t) 9 L. T. R., N. S. 565; 12 W. R. 118. (u) Mason v. Broadbent, 33 Beav. 296. (x) Edmunds v. Waugh, Law Rep., 1 Eq. 418. mortgagor, is not affected by the section 42. Therefore, notwithstanding this section, more than six years' arrears of interest may be obtained by a mortgagee, by means of such right (y), as against such persons (z) and such heir (a), but, before the 1 Will. 4, c. 47, not against the devisee of the mortgagor when he left no heir (b), and as well when the arrears are only a simple contract debt (c) as when they are secured by specialty in which the heirs of the mortgagor are bound; and it makes no difference whether the debt claimed be secured by a covenant in the same or any other deed (d). In Jackson v. Sinclair (e), indeed, where the suit was not properly framed to raise the question, Sir J. Romilly, M. R., refused to decide whether a mortgagee can or cannot tack his claim for arrears of interest beyond six years, as against the heir of the mortgagor. The case of Du Vigier v. Lee has been the subject of much observation; but although as we shall presently see, another case has been decided in direct opposition to it, has never been overruled. It was recognized in Elvy v. Norwood (f), and Parker, V.-C., said his decision there was not inconsistent with it, and in Hunter v. Nockolds (g), the Lord Chancellor, after observing that in Du Vigier v. Lee, the party was also personally liable on his bond, said it was in reference to that specialty involving a circuity of action that the case was decided; and it was again recognized by Stuart, V.-C., in Shaw v. Johnson (h). But in Round v. Bell(i), Sir J. Romilly, M. R., referring to Du Vigier v. Lee, as deciding that where there is a bond or cove (y) See 2 Fon. Eq. 274. (z) Du Vigier v. Lee, 2 Hare,326. (a) Elvy v. Norwood, 5 De Gex & S. 240. (b) Hunting v. Sheldrake, 9 Mee. & W. 256. (c) Rolfe v. Chester, 20 Beav. 610; Thomas v. Thomas, 22 Beav. (d) Elvy v. Norwood, 5 De Gex & S. 240; Sinclair v. Jackson, 17 Beav. 405. (e) 17 Beav. 405. |