or not, is the true question. "The true questions, therefore, to be put and considered Whether the jus disponendi appear to be these are the people of England, who have strug- shall continue gled long and hard to obtain the complete power of alienation to be so enjoyed and testamentary disposition, now prepared to resign it wholly or partially? Would a law abridging that power be received as a boon, or be evaded, and in fact repealed, as other unpalatable laws of property have been in times past, by the opposite habits and inclinations of the people? Would industry be stimulated, or be checked, by laws controlling the right of disposition, seeing that wealth is coveted chiefly as it confers power on its possessor, and that it can confer power only in proportion to the amplitude of his dominion over it? Uses were hailed as bringing with them the power of testamentary disposition over land,—a power denied by the great feudal lords; but which the legislature and judicature, yielding to the strong desire of mankind for that posthumous dominion, finally established (g). Does the nation, satiated with liberty, sigh for shackles again-for a perpetuity of distributive succession, and for agrarian and sumptuary laws? Some observations appli- Sentiments of cable to this subject occur in the First Report of the Real Pro- perty Commis perty Commissioners. They are dictated by sound wisdom and enlightened policy:-'The owner of the soil is, we think, invested with exactly the dominion and power of disposition over it required for the public good, and landed property in England is admirably made to answer all the purposes to which it is applicable. A testamentary power is given, which stimulates industry, and encourages accumulation, and while capricious limitations [i. e. perpetual entails, &c.] are restrained, property is allowed to be moulded according to the circumstances and wants of every family.'" (g) Vide ante, 36, 81, 341. the Real Pro sioners. Corporations, other than spiritual or elee mosynary, barred by twenty years' adverse possession; -but not the Crown. Twenty years' adverse posses sion a bar to estates for life, in fee, and in tail, and estates ulterior to estates tail. But possession VIII. Sixty Years' Title. Opinion of Mr. Brodie on the Effect of the new Statute of Limitation, (3 & 4 Will. 4, c. 27), with Reference, chiefly, to the Rule requiring a Sixty Years' Title. A GOOD title, by means of an adverse possession of twenty years, cannot be acquired so long as real actions can be brought. By the 37th section, these actions may be brought at any time before the 1st of June, 1835. As, by the 1st section, the word person is made to extend to a body politic, corporate, or collegiate, corporations of all descriptions (except such as are spiritual or eleemosynary (a), for which a special provision is made by the 29th section, and except the Crown) will, by the 2nd section, when it comes into full operation, be barred by twenty years' adverse possession. The Crown must have been specially named to have been barred. When there are no disabilities, then under the 2nd, 21st, and 22nd sections, an adverse possession of twenty years, and when there are disabilities, then an adverse possession for the periods fixed in the 16th, 17th, and 18th sections, will bar either an estate for life, or an estate in fee, or an estate tail, and all estates to take effect after or in defeasance of an estate tail; and by the 23rd section, a possession for twenty years by a person entitled under an assurance by a tenant in tail, which shall not bar the estates to take effect after or in defeasance of the estate tail, will have the effect of barring the same (6). But possession adverse to a tenant for life will not run on (a) By s. 1, "person" is extended to "a body politic, corporate, or collegiate," without exception; by s. 29, a particular limitation is provided with respect to spiritual and sole. eleemosynary corporations Corporations are not otherwise noticed. (b) Sed vide ante, 261. estate does not against a remainderman or reversioner; so that although a adverse to a life tenant for life may be barred by an adverse possession of twenty run against years, it would, except in the case specified in the 20th section, those in rerequire another period of adverse possession, commencing from the death of the tenant for life, to bar a remainderman or reversioner. It follows, from what I have above stated, that no purchaser can be satisfied with a vendor's title depending solely on an undisturbed possession of twenty years; as the person to whom such possession may have been adverse may be only a tenant for life (c), or may have been, at the time when the adverse possession commenced, under some of the disabilities noticed in the 16th section. In all cases, therefore, a vendor, in undisturbed possession for twenty years, must, by the production of the previous title, shew, either that he lawfully obtained such possession, and that he has the estate and interest which he professes to sell, or that his possession, being adverse, the estates and interests of the parties rightfully entitled have been barred by such adverse possession. It is a mistake, therefore, and at present, a very prevalent one amongst professional gentlemen who have not duly considered the subject, to suppose that, in consequence of the new Statute of Limitations, a purchaser will not be warranted in (c) Or to a tenant for years. Hayward v. May-Replevin-This cause was tried at Guildford, in 1826, before Graham, B., when a verdict was found for the plaintiff. The facts were these:-In 1776 Palmer and Russell conveyed two houses in Peckham to Billiter in fee. The houses were subsequently conveyed to Thomas May, who devised them to the defendant George May, who let one of them to Hayward the plaintiff in replevin, as tenant from year to year. In 1825, one Law gave notice to Hayward to pay her rent to him, which she did. May afterwards distrained on Hayward for the rent, as due to him, and Law, mainder or re version; therefore possession for twenty years does not constitute a marketable or safe title. Abstracts must shew title for as long a period as under the old system. The measure of the period for the deduction of titles, was the limitation, not to a writ of right, but to the life of man. Titles to ad requiring the abstract of title to go so far back as under the old system. I have known an instance of a person being tenant for life for more than eighty years. Such a person might have been dispossessed at the time when his right first accrued. An adverse possession to him during the whole period of his life, would not have made a good title against the remainderman or reversioner under the old law, nor will it do so under the new law. It is a common notion that the present length of abstracts is with reference to the limitation of sixty years. This is quite a mistake. It is with reference to the duration of human life; and so long as the law will not allow a remainderman, expectant on an estate for life, to be barred by a possession adverse to the tenant for life, a purchaser will be entitled to require a title to be shewn for the same period as heretofore under the old law. Advowsons are specially provided for by the 30th, 31st, 32nd, be deduced for and 33rd sections; and the length of abstracts as to them must vowsons must one hundred years. be with reference to the period of one hundred years, fixed by the last of those sections. The provisions in these sections are very salutary, as, according to the old law, no person purchasing an advowson could ever be pronounced safe, since the old statutes of limitation did not apply to advowsons. Abstract, shew 2. Opinions as to a Vendor's Liability to abstract Deeds more than Sixty Years old. It is clear that if the vendors had no documentary evidence ing a clear title of title in their possession prior to the settlement of 1771, the for sixty years, sufficient, purchaser would be compellable to accept a title commencing though the vendor has with the settlement, notwithstanding the reference to the will earlier deeds; of J. C., and to the purchase by H. C. But, it is equally clear, that the purchaser, unless precluded by the express terms of the contract, is entitled to the production and inspection, at least, of all the documentary evidence in the vendor's possession, and the only question is, whether he is entitled to an abstract at the vendor's expense of muniments more than sixty years old, where, without resorting to those documents, a good title for sixty years is apparently deduced. That point was lately discussed, but not decided, in the Master's office. My impression is, that where, upon the face of the abstract delivered, a good title is shewn, as in this case, for sixty years, and where consequently, but for the accident of the vendor's having earlier evidence in his possession, the purchaser would be bound to rely on the title so deduced, the expense of abstracting the prior documents, if an abstract be required, must fall upon the purchaser; otherwise the period prescribed as that for which a title must be deduced would be liable to be indefinitely extended. The sound rule would seem to be, that the onus lies upon the vendor of proving the title for sixty years, and that the onus lies upon the purchaser of disproving the title beyond that period; the vendor, however, not withholding any means of information. I would, therefore, advise that the vendor's should offer to the purchaser's solicitor the inspection of the old muniments, but decline to incur any expense in abstracting them or otherwise, on the ground that a sixty years' title is shewn by the abstract, and that the presumption is in favour of the validity of such a title. There can be no doubt that even if the settlement had recited or distinctly referred to prior deeds or wills not in the vendor's possession, the purchaser could not have required the vendor to abstract them or to procure a covenant for their production. I do not assent to the doctrine (c), that, if an abstract begin with a conveyance by a person described as heir, the vendor is bound to adduce evidence of the intestacy of the ancestor. That doctrine would almost neutralize the rule which declares a sixty years' title to be sufficient, for it very rarely happens that the deed, which would otherwise form a good root of title, is destitute of all retrospective allusions. June 29th, 1836. (c) 1 Sugd. V. & P. 9th ed. 330. But see 2 Sugd. V. & P. 10th ed. W. H. ,57 133. Ante, 293. See Law Mag., but the pur chaser has a right to inspect the earlier deeds. |