The rule not altered by 3 & 4 Will. 4, c. 27. Cooper v. we think some diminution of this evil will be provided by shortening and making uniform the period of limitation, although to guard against the fabrication of fee simple titles by persons in possession under particular estates, it will still be requisite to investigate titles for a greater number of years than the period of limitation which may be prescribed. On this Report was founded the 3 & 4 Will. 4, c. 27, and immediately after this statute was passed, the question, whether the effect of that statute would be to shorten the period of time for which titles had been previously shown, or, in other words, whether the old period of sixty years, or the extreme period of limitation mentioned in this statute (g), forty years, or some intermediate period, should be the rule, was much discussed (r). Some persons contended that the effect of this statute was to diminish the period, and that a title for forty years ought to be deemed a marketable title (s). Others considered that the old rule would remain unaltered (t), and an eminent authority on such questions considered that, in practice, a convenient rule would be adopted, which, taking a middle course, would perhaps be to furnish a fifty years' title in ordinary cases (u). At length the question as to the effect of the statute in this respect was raised in and decided by the case of Cooper v. Emery (x). Lord Lyndhurst, C., there said, "It was supposed that by the operation of the act it was not necessary that the title should be carried back as formerly to a period of sixty years, but that some shorter period would be proper. It appears that conveyancers have entertained different opinions on the subject; but, after considering it, I am of opinion that (q) Sect. 17. (r) See 2 V. & P. 135, 10th ed. (s) See Cottrell v. Watkins, 1 Beav. 361; Hodgkinson v. Cooper, 9 Beav. 304; Doe d. Corbyn v. One the statute does not introduce any new rule in this respect; and that to introduce any new rule shortening the period would affect the security of titles. ground of the rule was the duration of human life, and that is not affected by the statute. It is true that in other respects the security of a sixty years' title is better now than it was before. But I think that is not a sufficient reason for shortening the period-for adopting forty years, or, as it has been suggested by a high authority, fifty years instead of sixty. I think the rule ought to remain as it is, and that it would be dangerous to make any alteration." In Moulton v. Edmonds (y), Lord Campbell, C., said, he did not think that "this statute in any respect abridges the period of sixty years for which previously a good title must have been proved by the vendor, although attempts have been made by very distinguished persons to abridge this period, so as to facilitate the transfer of real property." For although the statute bars, as well estates and interests lying behind an estate tail which is barred (z), as those in reversion expectant on a lease for years in writing reserving a yearly rent of twenty shillings and upwards where the rent is wrongfully received by any person (a), yet even a possession of sixty years and upwards may still happen to be by or against only a tenant for life, or a tenant for years, other than under such a lease, and therefore of no avail against those claiming in remainder or reversion, after such tenancies. And Lord Langdale, M. R., on one occasion (b) said, "I am very much afraid that one of the objects of the legislature in passing the act of limitation referred to, namely, that of shortening the period of deducing titles, has not been effected in consequence of the construction put upon that statute." (y) 1 De G., F. & J. 246, 250. (z) Sects. 21-23. (a) Sect. 9. (b) Hodgkinson v. Cooper, 9 Beav. 309. And does not exclude a title for a longer period. Neither does the statute preclude a purchaser from being required requiring, under all circumstances, the title to be deduced for more than sixty years. The rule is, in effect, that a purchaser cannot object to a title shown for that period, and not that he cannot, under any circumstances, call for the title to be shown for a longer period, as he certainly may under some circumstances (c). Nature of titles to renewable leaseholds. The title to renewable leaseholds frequently involves embarrassing questions. These interests are most commonly derived from spiritual and eleemosynary corporations and other public bodies (d), but sometimes from private persons; and the lessors, from motives of kindness, or of interest, or both, having renewed, in many cases for generations (e), such interests, the lessees under such leases have been sometimes led to conceive and cherish the hope or the expectation that renewal would be continued as of course, and on that hope or expectation have expended considerable sums in substantial and permanent improvements of the property, granted subleases of parts of it at improved rents, mortgaged it, have made it a provision for their families, and eventually have regarded the privilege of renewal as a right, and thus, in effect, subverting the title of the lessors (ƒ). When, however, on application by the lessees for renewal, the lessors were found to be entitled either to demand increased fines on renewal (g), or to refuse renewal altogether on any terms (h), the precise nature of the interest of the lessees clearly appeared, and unless such hope or expectation had been superinduced by assurances, or hints, or other conduct, of the lessors inducing the lessees to expend their money upon the pro (c) See Parr v. Lovegrove, 4 Drew. 170. (d) See 9 Beav. 304; 1 Coop. Rep. Ch., temp. Lord Cottenham, 97; 17 W. R. 701. (e) See 1 Coop. supra, 121. (f) See Clayton v. Att.-Gen., Earl Grey and others, infra. (g) Ib. (h) Ib.; Hayward v. Pile, 17 W. R. 701. perty or to do anything by which they would become losers, and especially to produce a gain to the lessors (i), neither the mere practice of renewal, however long continued (k), nor the fines paid on renewal (1), nor the expenditure by the lessees from time to time in improving the property (m), have been sufficient to convert that privilege into a right (n). A right of renewal most commonly arises by express Right of recontract; and the extent of the right so created is a fre- newal commonly arises quent subject of litigation; and the question has gene- by contract. rally been whether the renewal is to be for a limited period only, or perpetual (o); and unless the contract show clearly that the renewal is to be perpetual the courts lean against giving that interpretation to the contract (p); although when the contract is clear that the renewal is to be perpetual, they will enforce it (q). But even in that case the lessee, to entitle himself to the renewal, must strictly perform his part of the contract (r). (i) See Floyd v. Buckland, 2 Freem. 268; Allan v. Bower, 3 B. C. C. 148; 1 Coop. Rep. Ch., temp. Lord Cottenham, p. 124; 1 Arnold's Rep. 314. (k) See Baynham v. Guy's Hospital, 3 Ves. 298; Eaton v. Lyon, Ib. 694; Iggulden v. May, 9 Ib. 331, 333; 1 Eden, 346, 349, n. (a); 14 Ves. 332 et seq.; 4 Cru. Dig. 429, 430. (1) Redshaw v. Governor and Company of Bedford Level, 1 Eden, 346; 349, n. (a); 3 Atk. 87, 88; Iggulden v. May, supra; Browne v. Tighe, 8 Bli. 272; 2 Cl. & F. 396, 408, S. C.; 4 Cru. Dig. 427. (m) See 14 Ves. 339 et seq.; 1 You. & C., Ex. Rep. 92; 4 Cru. Dig. 424. (n) Clayton v. Att.-Gen., Earl Grey and others, 1 Coop. Rep. Ch., temp. Lord Cottenham, 97, Arnold's Rep. 312, n. (c), S. C.; Simpson v. Clayton, 4 Bing. N. C. 758, Arnold's Rep. 299, S. C. (0) Hinde v. Skinner, 2 P. W. 196, on which see 3 Atk. 88; Iggulden v. May, supra; City of London v. Mitford, 14 Ib. 41; 1 Eden, 346, 348, n. (a); Browne v. Tighe, supra; 13 Beav. 478; 18 Ib. 404; Hare v. Burges, 4 K. & J. 45. (p) Russell v. Darwin, 2 B. C. C. 639, n.; Tutton v. Foote, Ib. 636; 2 Cox, 174; Hyde v. Skinner, supra; Iggulden v. May, 7 East, 237; 2 New Rep. 449; 9 Ves. 315; Moore v. Foley, 6 Ves. 232; Dowling v. Mill, 1 Mad. 541; Maxwell v. Ward, 13 Pri. 674; Browne v. Tighe, supra; Price v. Assheton, 1 You. & C., Ex. 82. (q) Furnival v. Crewe, 3 Atk. 83; Willan v. Willan, 16 Ves. 84; Browne v. Tighe, supra; Hare v. Burges, supra. (r) See Gourlay v. The Duke of Somerset, 1 Ves. & B. 68; Thompson v. Guyon, 5 Sim. 65; Rubery v. Jervoise, 1 T. R. 229; Job v. Banister, 2 K. & J. 374. Length of title to such leaseholds. The question, however, of most frequent occurrence in connection with the immediate subject of this section is, for what period, in the absence of express stipulation, the title to these renewable leaseholds is to be shown. The renewed lease, especially when granted by a corporation or other public body, is very commonly expressed to be made in consideration of the surrender of the former lease, and the former lease may have been made in such terms as that all persons acquiring the renewed lease are or may be, in equity, affected by equities attaching to the lease surrendered (s). A purchaser of the renewed lease has thus imposed upon him the obligation of investigating the title to the surrendered lease, and has often been compelled, for his own protection, to carry the investigation to such an extent as to entail upon the seller very great hardship and expense (t), and an unwilling purchaser might insist on such production so far as to render the making out of the title impracticable; but that by no means necessarily follows, for when you go to a certain extent back, the court necessarily resorts to favourable presumptions, arising from the facts brought before it (u). With the aid of these presumptions and the provisions of the modern Statute of Limitations applied to equitable titles (x), these titles, as to this question, have been placed on a more certain foundation. (8) Coppin v. Fernyhough, 2 B. C. C. 291. (t) See Hodgkinson v. Cooper, 9 Beav. 304. (u) 9 Beav. 310. (a) 3 & 4 Will. 4, c. 27, ss. 24 -27. |