fore the late act of 3 & 4 Will. 4, c. 27, had a right CHAP. V. to require a title commencing at least sixty years previously to the time of his purchase; because the old statute of limitations (a) could not in a shorter period confer a title. In Paine v. Meller, (b) Lord Eldon was of opinion, that an abstract not going further back than forty-three years, was a serious objection to the title. Even sixty years were not sometimes sufficient. For instance, if it might reasonably be presumed from the contents of the abstract, that estates-tail were subsisting, the purchaser might demand the production of the prior title. The statutes of limitation could not in such case be relied on; remainder-men, having had distinct and successive rights, upon which at least the statute of James could only begin to operate as they fell into possession. It might have been thought in the common case of a man claiming by descent, a reversion expectant upon particular estates created by his ancestor's will, that a writ of right would not lie after sixty years from his ancestor's death, although the particular estates had but recently determined. But however this might be, the objection still remained, for an ejectment might have been brought at any time within twenty years after the estate fell into possession. But the law is altogether altered by the 3 & 4 Will. 4, c. 27, which limits the general time to recover to twenty years, with a saving of ten years for persons under disability, but not to exceed in any case forty years, although the ten years are not expired. The act allows no further time for successive disabilities, and makes the bar of the tenant, in fact, (a) 32 Hen. 8, c. 2; 21 Jac. 1, c. 16; and see Barnwell v. Harris, 1 Taunt. 430. (b) 6 Ves. jun. 349. See Robinson v. Elliott, 1 Russ. 599. CHAP. V. extend to all whom he might have barred. This will ultimately tend to shorten abstracts considerably, and in the result forty years will probably be considered the proper period instead of sixty for an abstract to extend over, but still cases must frequently arise where it will be necessary to call for an earlier title. As fines are abolished, a short bar, as formerly, cannot now be made." (a) Another writer, after noticing the difference of opinion upon this point, and quoting the opinion expressed in the preceding pages of this chapter, proceeds thus:-" With this opinion the practice of the profession seems to accord; and courts of equity, or at least their officers, the masters, continue to act upon the old rule, without any relaxation. One feels, however, some hesitation in acceding to the notion that the rule in question was established in reference exclusively to the duration of human life, without regard to the limitation of real actions; seeing the exact correspondence between the periods of title and limitation, and that the rule, if framed with a view to the claim of a remainder-man, falls short of its aim, as even an estate for life (to say nothing of an estate-tail) may outlast the period of sixty years. The probability is, that when it became necessary to establish the minimum extent to which abstracts of title under all circumstances should reach, sixty years were fixed on as being the period when an adverse possession would confer an unimpeachable title, with little or no regard to the case of a tenancy for life or a tenancy in tail, either of which would evidently have suggested the necessity of a more extended range of investigation. Indeed, as an estate-tail is of indefinite duration, (a) 1 Sugd. Vend. 9th ed. 329. no length of time could reach such a case; and therefore CHAP. V. the recent statute has wisely included tenants in tail and ulterior remainder-men in the same bar. (a) But though a consideration of the possible existence of remainders may not have had so large a share as has been ascribed to it in the establishment of the present doctrine respecting titles, it may constitute a sufficient ground for adhering to it; for, if that doctrine has hitherto left a purchaser in too precarious a condition, now is the time to augment his security by refusing to contract the period of title, in analogy to the abridged remedy. Had the present rule afforded ample protection under the old Statute of Limitations, it is obvious that the approaching alteration of the law would have warranted and required its modification; but the truth seems to be, that a purchaser's scope of inquiry ought never to have been limited to the mere period when an adverse possession could ripen into a rightful title, but should have extended additionally over such a period as would comprehend a life in being, or rather the period which the law allows for the suspension of the vesting of estates, because, until the termination of such period, the possession may not have become adverse. It seems, then, that the rule against perpetuities forms one of the strong holds of a purchaser's security; and as, under that rule, it may happen that a limited and terminable ownership may subsist for more than sixty years (namely, for a life and twenty-one years,) it is impossible, without hazard of doing injustice, to pronounce a title of shorter duration than sixty years to be marketable. Still, however, it cannot be denied, that with such a title a purchaser will now be in a better situation than formerly, and hence, (a) Vide stat. 3 & 4 Will. 4, c. 27, s. 22, 23. CHAP. V. probably, there will be some abatement of that strictness The requisition of requisition in regard to evidence of title, which has prevailed of late years, and has driven vendors to the countervailing expedient of introducing stipulations restrictive of a purchaser's demands;—and it must be borne in mind that a purchaser not so restricted, may always compel the disclosure of every document of title, however ancient, in the vendor's possession." (a) The best answer, perhaps, which can be given to those of a sixty years' who contend for a reduction of the period to forty years, title justified by the authority of is to quote the authority of the Real Property Commisperty Commissioners, under whose sanction the act was prepared. the Real Pro sioners. PRESCRIPTION and TITHES. The commissioners, in their first report, after observing upon the length of abstracts, and that some diminution would result from shortening the period of limitation, add, "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." The "number of years" cannot be allowed to depend on the circumstances of each case; a general rule must be adopted; and the practitioner has no approved standard but the old rule until a new rule shall be propounded by competent authority. The acts for shortening the time of prescription in certain cases, (b) and the time required in claims of modus decimandi, or exemption from or discharge of tithes, (c) are also important, as branches of the new law of limitation. (d) (a) 9 Jarm. Conv. 417, 418. (b) 2 & 3 Will. 4, c. 71. (c) 2 & 3 Will. 4, c. 100, amended by 4 & 5 Will. 4, c. 83. (d) The practitioner should be apprised that some provisions relating to the stamping of deeds have found their way into an act of The preceding remarks on the statutes of 3 & 4 Will. 4, CHAP. V. should be read with particular attention to the periods Commencement denoted by the accompanying Table, (a) of which periods of acts of 3 & 4 the earliest is the 1st January, 1834, when, for most practical purposes, the Fine and Recovery Act, and the Dower Act, came into force. Henceforth, therefore, the student, by cultivating both the book-learning on titles of abrogated law-on fines, recoveries, warranty, discontinuance -and the living principles of modern legislation, must qualify himself as well to solve questions demanding the application of the old doctrines, as to co-operate in the formation of a new system of law and practice. Two statutes have passed more recently, which, though less generally interesting and important, yet deserve to be noticed. By one of these statutes, intituled "AN ACT FOR THE AMENDMENT OF THE LAW RELATIVE TO THE ES- PERTY HOLDEN IN TRUST," the law of escheat and for- last session, 3 & 4 Will. 4, c. 97, s. 17, intituled, "An Act to prevent the selling and uttering of Forged Stumps, and to exempt from stamp duty Artificial Mineral Waters in Great Britain, and to allow a drawback on the exportation of Gold and Silver Plate manufactured in Ireland." By this act (s. 16, 17,) the commissioners of stamps are empowered to alter the dies, giving not less than one calendar month's notice in the gazette: deeds stamped with the old dies, and not executed by any of the parties before the day notified, are to be treated as unstamped, and will of course be inadmissible in evidence; subject to a special provision enabling the commissioners to relieve in the case of deeds first executed out of the united kingdom. (a) Infrà, 169. This Table, and the Tables of Descent, have been contributed, at the writer's request, by his friend Mr. Ingram, and will be found very valuable accompaniments to the Statutes. M ESCHEAT. 4 & 5 W. 4, c.23. (Royal Assent, 27th June, 1834.) |