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By sect. 40, suits to recover money charged on or payable out of land or rent, or legacies (though not charged on land, 9 Sim., 567; 2 You. & C., 200; 2 Myl. & Cr., 309), are subject to the general rule of limitation.

There was no statutory period of lim- a concealed fraud, the time commences Statute of itation applicable to equitable claims; to run against parties and privies to the Limitations. but courts of equity adopted a rule, in fraud only where the fraud is, or with analogy to the legal limitation of rights reasonable diligence might have been. of entry, and refused, except under par- discovered. (Sect. 26.) A mortgagor ticular circumstances (such as disabili is to be barred from redeeming after ties, mistake, &c.), to listen to any ap- twenty years from the time when the plication for relief after twenty years. mortgagee obtained possession or re(2 Sch. & Lef., 630; 2 You. & C., 58.) ceipt of the rents, or from the last-writIn cases of express trust, there was no ten acknowledgment of the mortgagor's fixed rule as to the time that should bar title. the cestui que trust from relief against his trustee; and relief has been given under the circumstances, after a lapse of forty-five years, or even a longer period; but stale demands of this sort were not regarded with favor. (See 2 Ves. Jun., 283; 17 Ves., 97; 1 Jac. & W., 51; 4 Myl. & Cr., 52.) In cases of implied trust, as where a purchase was made, or mortgage taken, with notice of the claims of other persons, the strict rule at law was followed, except in cases of charitable trusts (3 Myl. & K., 344); and an adverse enjoyment of an equitable interest was subject to the same rule; as, where A., being trustee of an estate for B., pays the rents to C., or suffers him to enjoy the estate for twenty years. (4 Bligh, 1; 2 Russ. & M., 675.)*

The statute has not provided for every case of equitable cognizance, and where it has interfered it has not made any considerable alterations in the existing practice. The favor which was shown to charitable trusts is abolished (but see 1 Con. & Laws, 82), and, in cases within the act, ignorance or mistake can no longer be admitted to extend the time. Claims to legacies, and money charged or secured upon land, are also subject to an express limitation. Sect. 24 enacts, that no person claiming any land or rent in equity shall bring any suit to recover the same, but within the period during which, under the act, he might have prosecuted his claim at law, if it had been a legal claim. But the next section provides, that in case of express trusts, the statute shall create no bar as between the trustee and the cestui que trust; but the right of the latter shall be deemed to have first accrued when the subject-matter of the trust shall have been conveyed to a purchaser for valuable consideration, and then only as against such purchaser, and persons claiming through him. And in case of

Cases of express trust, as between the trustee and cestui que trust, are not within any of these provisions (except in the case of mortgages), but are left subject to the former rule in equity; it being provided that nothing in the act shall interfere with any rule or jurisdiction of courts of equity in refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by the act. (Sect. 27.)

Claims by bishops, parsons, and oth.. er ecclesiastical and eleemosynary corporations sole, to land or rent, are to be barred after sixty years, and such further time as shall be necessary to include the whole or the latter end of one incumbency, the whole of the next, and the first six years of the next incumbency after that, have elapsed from the time when the right first accrued. (Sect. 29.)

Claims to advowsons are to be barred after sixty years, and such further time as shall include three adverse incumbencies, excluding prerogative presentations after promotions to bishoprics, but including collations or presentations after lapse. (Sects. 30, 31.) And, under any circumstances, no advowson is to be recovered after the lapse of 100 years from the last rightful presentation.

It remains to notice a few miscellaneous clauses, not mentioned in the preceding general summary.

By sect. 34 after the remedy of the rightful owner shall have been barred under the act, his right and title shall also be extinguished. This enactment essentially distinguishes the effect of the act under consideration from that of the

* Where there is concurrent jurisdiction in the courts of common law and equity, the same liinitation exists in equity as at law: bills for relief on the ground of fraud must be filed within six years after the discovery; and bills for relief in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not above enumerated, must be filed within ten years after the cause thereof accrues.- -(2 R. S., 301.)

Statute of old acts, which merely barred the active Limitations. remedy by suit, entry, or distress. (2 Con. & Laws., 192.)

Where, after the commencement of adverse possession, the party in possession, by writing under his hand (or, in cases of legacies, or money secured on land, by writing under the hand of his agent (sect. 40)), shall acknowledge to the true owner or his agent that the right is in him, the right is to be deemed to have accrued at the date of such acknowledgment. (Sects. 14, 28.)

By section 36, a variety of real and mixed actions particularly specified, which had become obsolete, and all other real and mixed actions, and plaints in the nature of such actions, except a writ of right of dower, or writ of dower unde nihil habet, or a quare impedit, or an ejectment, and a plaint for free-bench or dower, are abolished, with a saving of existing rights in certain cases.

As a descent cast, discontinuance, or warranty operated in many cases to defeat the true owner's right of entry, and to deprive him of any remedy except by real action, a necessary appendage to this abolition of real actions was the enactment, in the next section, that no

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right of entry should be tolled or defeated by such means.

There are two clauses limiting the right to recover arrears in certain cases to six years. Sect. 41 applies to arrears of dower. Sect. 42 enacts, that no ar rears of rent or of interest in respect of money charged on land or rent, or in respect of any legacy, or any damages in respect of such arrears, shall be recovered but within six years next after the same shall have become due, or an ac knowledgment of the same in writing shall have been given to the person entitled thereto or his agent, signed by the person by whom the same was payable or his agent; except in cases where a prior mortgagee or encumbrancer has been in possession or receipt of the profits. But by a later act of the same session (3 & 4 Will. IV., c. 42, s. 3), this period is extended to twenty years in cases of actions of debt for rent on an indenture of demise, or actions generally of debt or covenant on any bond or other specialty; and the same period in respect of such claims by specialty is allowed in equity, even as against the land charged. (3 Scott, 120; 4 Per. & D., 229; 2 Hare, 326. See 2 Con. & Laws, 223.)

CHAPTER XVIII.

OF TITLE BY FORFEITURE.

FORFEITURE is a punishment annexed by law to some illegal act or negligence in the owner of lands, tenements, or hereditaments: whereby he loses al lhis interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained. Lands, tenements, and hereditaments may be forfeited in Causes of various degrees and by various means: 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

forfeiture

and misde.

I. The foundation and justice of forfeitures for crimes and I. Forcrimes misdemeanors, and the several degrees of those forfeitures pro- meanors. portioned to the several offenses, have been hinted at in the preceding volume ;a but will be more properly considered, and more at large, in the fourth book of these Commentaries. At present I shall only observe, in general, that the offenses which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. 2. Felony. 3. Misprision of treason. 4. Præmunire. 5. Drawing a weapon on a judge, [268] or striking any one in the presence of the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future inquiries.**

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II. Lands and tenements may be forfeited by alienation, or II. For al

a Vol. i., p. 299.

(1) See the alteration in the law as to the effect of an attainder for felony, by stats. 54 Geo. III., c. 145, and 4 & 5 Will. IV., c. 23, stated ante, p. 251, n.

(2) The statutes of recusancy are now repealed, ante, p. 257, n.

(3) Until the facts of the seizin and of the forfeiture are found by an inquisition on behalf of the crown, or as it is phrased, until "office found," the land remains in the offender, and may be conveyed by him, subject to being divested upon the recording of the inquisition. (See 5 B. & Ad., 765.)

* See ante, p. 251, n. t.

ienation con trary to law as,

1. Antenation in mortmain.

mortmain.

conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants: in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations,b and the religious houses themselves to be principally considered in forming the statutes of mortmain: in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive Parliaments have pursued them through all their finesses; how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.

C

By the common law, any man might dispose of his lands to any other private man at his own discretion, especially when the feodal restraints of alienation were worn away. Yet, in Licenses in consequence of these it was always, and is still necessary, for corporations to have a license in mortmain from the crown to 269] enable them to purchase lands; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feodal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons above sixty years before the Norman Conquest. But, besides this general license from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his license also (upon the same feodal princi ples) for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the land so aliened in mortmain as a forfeiturę. The necessity of this license from the crown was acknowledged by the constitutions of Clarendon, in respect of advowsons, which

b See vol. i., p. 479.

F. N. B., 121.

d Selden, Jan. Angl., 1, 2, § 45.
• Ecclesia de feudo domini regis non

(4) Or, rather, to hold the lands; for the conveyance vested the inheritance in them without any license, subject only to the entry of the lord for the forfeiture. Co. Litt., 2, b, 10; Rep., 30.

possunt in perpetuum dari, absque assensu et consensione ipsius.-C. 2, A.D 1164.

(5) Mr. Hallam doubts whether there was any restraint on alienations in mort. main prior to Magna Charta. (Middle Ages, vol. ii., p. 321.)

the rule by

the monks always greatly coveted, as being the ground-work of subsequent appropriations. Yet, such were the influence Evasions of and ingenuity of the clergy, that (notwithstanding this funda- the clergymental principle) we find that the largest and most considerable donations of religious houses happened within less than two centuries after the Conquest. And (when a license could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again, to hold as tenant to the monastery; which kind of instantaneous seizin was probably held not to occasion any forfeiture; and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly-acquired seigniory, as immediate lords of the fee. But, when these donations began to grow numerous, it was observed that the feodal services, ordained for the defense of the kingdom, were every day visibly withdrawn ; that the circulation of landed property from man to man began to stagnate; and that the lords were curtailed of the fruits of [270] their seigniories, their escheats, wardships, reliefs, and the like; and, therefore, in order to prevent this, it was ordained by the Further pro second of King Henry III.'s great charters, and afterward by that printed in our common statute-books, that all such attempts should be void, and the land forfeited to the lord of the fee.h

1

hibitions

But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more.years, which are now so frequent in conveyances. This produced the statute De Religiosis, 7 Edw. I.; which pro- Statute De Religiosis vided that no person, religious or other whatsoever, should buy, or sell, or receive under pretense of a gift, or term of years, or any other title whatsoever, nor should, by any art or ingenuity, appropriate to himself any lands or tenements in mortmain: upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and in default of all of them, the king, might enter thereon as a forfeiture.

See vol. i., p. 384.

illum ei a quo ipsam recepit tenendam: 8 A.D. 1217, cap. 43, edit. Oxon. si quis autem de cætero terram suam doh Non licet alicui de cætero dare ter- mui religiosa sic dederit, ut super hoc ram suam alicui domui religiosa, ita convincatur, donum suum penitus cassequod illam resumat tenendam de eadem tur, ut terra illa domino suo illius feodi domo; nec liceat alicui domui religiosa incurratur.-Mag. Chart., 9 Hen. III., c. terram alicujus sic accipere, quod tradat 36. 1 2 Inst., 75.

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