sons whose In every case, however, where any person has been Future intebarred of any estate or interest in possession in any land rests of peror rent by the determination of the period of limita- interest in possession is tion, and has, during that period, been entitled to any barred. future estate, interest, right or possibility in the same land or rent, no new right accrues to such person on such future estate, interest, right or possibility coming into possession (n). But if, before such future estate, &c. come into possession, the land or rent has been recovered by some person entitled to an estate, interest or right, limited or taking effect after or in defeasance of the estate or interest in possession, a new right accrues to the person claiming such future estate, &c. on its coming into possession (o). Thus, where copyholds were surrendered to a husband and wife, and to his heirs and assigns, and she, on his absconding, took possession, and continued it until her death, a new right in respect of the remainder (p) so limited to him accrued to his assignee in bankruptcy, who claimed and recovered the property (9). So if, in Doe d. Hall v. Moulsdale, on the death of the uncle an estate between the estate created by the lease and the estate in reversion, and not carved out of the latter, had arisen in a third person, who on the death of the nephew had obtained the possession in respect of such estate, or the reversion itself without any such intermediate estate had been vested in such person, the right to the reversion would have first accrued on the determination of the lease in 1835. The recovery contemplated by the sect. 20, in the case there mentioned, need not be a recovery by virtue of legal proceedings (q). The possession by the wife, (n) Sect. 20; Doe d. Hall v. Moulsdale, 16 M. & W. 689, supra; Clarke v. Clarke, Ir. L. R., 2 Q. B. 395. (0) Ib. (p) Vide supra, p. 452 et seq. (q) Doe d. Johnson v. Liversedge, 11 M. & W. 517. Future interests not preceded by an estate tail. Preceded by under the circumstances occurring in this case, during the whole period of her life was considered sufficient to preserve the right of the assignee of the husband to the reversion on her death. If when the future interest, not being preceded by an estate tail, and not barrable by the tenant in tail (r), comes into possession, the person to whom the land or rent is limited be not in esse, as the first child of a person living who has no child, or his eldest child living at his death, or his heir by purchase, the right first accrues, and the time of limitation commences when such person is either in esse, or has been ascertained (s), and, as will be hereafter shown, the time may be prolonged beyond the general period of twenty years. In general, then, the right to future estates and intesuch an estate. rests first accrue when they come into possession, and it is a strong thing, and apparently a violation of every principle of justice, to deprive a person of a right, who has had no opportunity to assert it, contra non valentem agere non currit præscriptio(t); yet the right to such estates and interests when preceded by an estate tail and lawfully barrable by the tenant in tail is so taken away. Any hardship, however, in such a case is more apparent than real; for as the tenant in tail may exclude them, to bar his estate tail by the operation of this law and to leave such estates and interests untouched would be an anomaly in principle and a violation of the general policy of this law (u). And as under the 21 Jac. 1, c. 16(x), so under the 3 & 4 Will. 4, c. 27 (y), when the right of the tenant in tail and of his issue has accrued under the (r) Sects. 21, 22. (8) Vide ante, Chap. II. Sect. II. of this Book. (t) Peniston's case, Noy, 46; Woodroffe v. Doe d. Daniel, 15 M. & W. 769; 2 H. L. C. 811, 831; Cannon v. Rimington, 12 C. B. 1, 18. II. (u) Vide Book I. Chap. I. Sect. (x) Tolson v. Kaye, 3 Brod. & Bing. 217. (y) Austin v. Llewellyn, 9 Ex. 276. See also Cannon v. Rimington, 12 C. B. 1, 18. sections 1 and 2, by being dispossessed of, or having discontinued, either the possession of the land, or the receipt of the rent, being rent within the section 1, during the whole period of limitation applicable and are then barred, the right to such future estates and interests is also barred (z); and, if the whole of such period has not expired, then, after the expiration of the remainder of the period, they are also barred (a), although at the death of the tenant in tail the person entitled to them be under disability (6). The 1st and 2nd sections of this latter statute show Estates tail. what the operation is as to the issue (c), and the sections 21 and 22 seem to be studiously worded, so as to be confined to the case of persons entitled after the expiration of the estate tail (d). such estates. These sections 21 and 22 appear to be directed to Estates after those future estates, &c. following an estate tail, where the bar to the tenant in tail has arisen from his acquiescence in a possession of land, or a receipt of a rent, wrongfully acquired by another person, independent of any act of such tenant, and not to such future estates, &c. following an estate tail as are not barred by his act, although the estate tail itself may be so barred (e). This latter class of future estates, &c. is the subject of a distinct provision, by which, in effect, the right to any interest to take effect after or in defeasance of any estate tail in land or rent, conveyed by a tenant in tail thereof, by an assurance not operating to bar such interest, and in respect of which no person has been in possession of the land or in receipt of the rent, first accrues when such assurance, without the consent of any other person, would operate to bar such interest, and at the end of twenty years from that time the assurance will (z) Sect. 21. (a) Sect. 22. (b) Goodall v. Skerratt, 3 Drew. 216. (c) See 12 C. B. 16. (d) See Penny v. Allen, 7 De G., M. & G. 409. (e) See 12 C. B. 34. Sect. 23 of Object of that section. Effect of conveyances of tenant in tail be effectual against any person claiming such interest (f). The object of this provision is to give effect to acts of a tenant in tail against remaindermen and reversioners, and to assurances which, although effectual to bar the issue, were ineffectual to bar those entitled in remainder, and has no application to cases where assurances by a tenant in tail are ineffectual to bar the issue (g). If a tenant in tail in possession with remainders over, or the reversion in fee in another person, has conveyed in possession, the land by fine, he bars the issue in tail (h), discontinues the remainders or the reversion, and creates, not merely a base fee determinable on the failure of the issue, but a fee defeasible by real action only, which, until so defeated, remains in the conuzor or his heir at law or devisee (i); and if the issue in tail fail twenty years after the 3 & 4 Will. 4, c. 27, the right of the remainderman or the reversioner will not accrue until the expiration of twenty years next after such failure of issue, and he may then bring his real action (j), notwithstanding the Statute of Fines (k). If the conveyance has been by feoffment it operates a discontinuance and creates a defeasible fee, as in the last case, but does not bar the issue (1), or if the conveyance has been by a common recovery, which for want of a tenant to the præcipe is voidable by the issue (m), and as neither the feoffor nor the recoveror can enter, neither the issue nor the persons entitled to estates and interests after the estate tail are barred, but may recover by action real (n), within twenty years from the death of the feoffor or the But if the conveyance has been by a covenant to stand seised, lease and release, or a recovery without a good tenant to the præcipe (o), a base fee, determinable on the failure or by the entry of the issue, is created (p); and after a long possession against a tenant in tail under a conveyance supposed to be made by him, the presumption in favour of the issue in tail claiming is, that the possession was under an innocent conveyance, and therefore no bar to the issue (q). them. The base fee, though defeasible, is not to be con- Nature of the sidered as a wrongful estate, and has all the incidents estate under of a rightful estate until defeated. If the issue in tail neglect to make an entry so long that his right of entry is gone, the continuance of possession by persons claiming under the base fee cannot alter the nature of the estate, but its effect is to bar the claim of the issue in tail, and so render the base fee indefeasible, and thereby to confirm and corroborate the estates of those who, under the limitations to which the base fee is subject, are entitled to successive portions of the fee, and not to extinguish or vary those limitations (r). assurance under sect. 23. Under the section 23, the assurance must be such as, Nature of the at the expiration of twenty years next after the commencement of the time at which the assurance, if then executed by the tenant in tail, or the person who would have been entitled to the estate tail, if such assurance had not been executed, would, without the consent of any other person, have operated to bar the estate or estates, to take effect after or in defeasance of the estate tail. But, except in the case of Penny v. Allen, the assurance in each of the cases noticed would not, at any time, have operated to bar such estate or estates, and therefore was not aided by this provision; and in Penny (0) Touch. 48; Penny v. Allen, 7 De G., M. & G. 409. (p) Machell v. Clarke, 2 Ld. Raym. 778; Doe d. Daniel v. Woodroffe, 15 M. & W. 769; 2 H. L. C. 811; Doe d. Smith v. (q) Doe d. Smith v. Pike, 3 B. (r) 15 M. & W. 793. |