1 Inst. 115 a. u. takes away all limitations of suit about the right of Tithes. Gilb. R. 229. Tit. 22. Dignities. Tit. 26. c. 2. Rents created by deed. 1 Inst. 115 a. Foster's case, 8 Rep. 64. patronage. 50. Tithes belonging to the church are not within the statutes of Limitation; because the nonclaim of the former rectors or vicars of a parish cannot prejudice their successors. Nor can the mere nonpayment of tithes be set up as a defence against a lay rector, or impropriator, though a long possession of a portion of tithes will create a title. 51. Dignities or titles of honour are not within any of the statutes of Limitation, as has been already shewn. 52. It has been stated in Sect. 44. that quit rents and other customary and prescriptive rights are comprised within the statute of 32 Hen. 8.: but Lord Coke lays it down that this act does not extend to a rent created by deed, nor to a rent reserved upon any particular estate; for in the one case the deed is the title, and in the other the reservation. 53. A. by deed indented made a feoffment in fee to B. and his heirs, rendering 10s. a year rent to A. and his heirs; of which rent the heirs of A. had not been seised for forty years. It was determined that they might notwithstanding distrain for it: for the statute 32 Hen. 8. was intended to operate only where the avowant was driven to allege a seisin by force of some old statute of Limitation; and that was when the seisin was material, and of such force that it should not be avoided in avowry, although it were by encroachment, as between the lord and tenant. But in the case of reservation or grant of a rent, there the deed is the title, and the beginning thereof appears; no encroachment in that case shall hurt, nor is any seisin material. And this construction stands with the words of the act-"No man she make avowry and allege seisin, &c. ;" by which it appears that that branch extends only where the avowant ought to allege seisin. But where no seisin is requisite, it is out of the words and intent of the act; for it intends to limit a time for the seisin, which seisin is required by law to be alleged ; and not to compel any one to allege seisin, where seisin was not necessary before. 54. The exemption of rent out of the statute 32 1 Inst. 115 a. n. Hen. 8. should be understood with this qualification; that the certainty of the rent should appear in the deed; because otherwise the quantum of the rent is no more ascertained by the deed, than if there was not one existing. If therefore the rent is created by reference to something out of the deed, as by reserving such rent as the person reserving pays over, without expressing what that is; and the latter not having commenced by deed, is one of which seisin is the proper proof. In Collins v.Goodsuch a case seisin is equally necessary to both rents; consequently, both ought to be equally deemed within this statute. 55. Fealty is within the letter of the statute 32 Hen. 8.; yet Lord Coke says that fealty and all other incidental services, such as heriot service, or to cover the lord's hall or the like; for that they might not happen within the times limited by that act; were, by construction out of the meaning of it. 56. Bond debts and other specialties are not within the statutes of Limitation. But where an action is brought on a bond, and the money does not appear to have been demanded, or any interest paid for twenty years, this amounts to a presumption that the bond has been paid. all, 2 Vern. 235. 1 Inst. 115 a. Fealty, &c. 3 Lev. 21. 1 Bond Debts, &c. 1 Burr. R 434. Oswalde Leph, Term R. 270. Fladong v. Win ter, 19Ves. 196. act. 57. We have seen that at common law no prescrip- Nullum tempus tion could be maintained against the King; nor was he bound by the statute 32 Hen. 8. ; and this privilege also extended to the lessees of the Crown. Cro. Eliz.31. 58. Thus where A. having a lease from the Crown Lee . Norris, for ninety-nine years, and being out of possession for Rua. Eject. 59. more than twenty years, he notwithstanding recovered in ejectment; for A.'s possession was that of the King, against whom the want of possession could not be legally objected. 59. By the statute 21 Ja. 1. c. 5. it was enacted, that a quiet and uninterrupted enjoyment, for sixty years Gibson v.Clark, 1 Jac. & Wal. 159. before the passing of that act, of any estate originally derived from the Crown, should bar the Crown from any right or suit to recover such estate, under pretence of any flaw in the grant, or other defect of title. This act, at the time it was made, secured the rights of such as could then prove a possession of sixty years: but, from its nature, was continually diminishing in its effect, and departing from its principle; so that some new law became every day more necessary, to secure the possessions of the subject from the claims of the Crown. 60. It was therefore enacted by the statute 9 Geo. 3. c. 16-"That the King's Majesty, his heirs or successors, shall not at any time hereafter sue, impeach, question, or implead any person or persons, bodies politic or corporate, for or in anywise concerning any manors, lands, tenements, rents, tithes, or hereditaments whatsoever, (other than liberties or franchises) or for or in anywise concerning the revenues, issues, or profits thereof, or make any title, claim, challenge, or demand for or into the same, by reason of any right or title which hath not first accrued or grown, or which shall not hereafter first accrue and grow within the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit or proceeding, as shall at any time or times hereafter be filed, issued, or commenced for recovering the same, or in respect thereof; unless his Majesty or some of his progenitors, predecessors or ancestors, heirs or successors, or some other person or persons, bodies politic or corporate, under whom his Majesty, his heirs or successors, any thing hath or lawfully claimeth, or shall have or lawfully claim, have or shall have been answered by force and virtue of any such right or title to the same rents, issues, and profits of any honour, manor, or other hereditaments whereof the premises in question shall be part or parcel, within the space of sixty years; or that the same have or shall have been duly in charge to his Majesty, or some of his progeni neral v. Lord tors, predecessors, or ancestors, heirs or successors, or Attorney-Geshall have stood insuper, of record, within the said space Eardley, 8 of sixty years." Price 39. the doctrine of limitations. 61. The statutes of Limitation only fix certain periods Equity adopts within which different real and personal actions may be brought in the courts of common law; and therefore do not extend to suits in equity: but the limitation of suits being founded in public convenience, and attended with so much utility, the courts of equity have adopted principles analogous to those established by these statutes, as positive rules for their conduct. and and Smith v. Clay, 3 Bro. R. 639 n. Hovendon v. Annesley, 2 Schoales & Lefroy 607. 62. Thus Lord Camden has said, that laches neglect were always discountenanced in equity; therefore, from the beginning of that jurisdiction, there was always a limitation to suits. Expedit reipublicæ ut sit finis litium, was a maxim that had prevailed in Chancery at all times, without the help of an act of parliament. As however the Court had no legislative authority, it could not properly define the time of bar by a positive rule'; it was governed by circumstances: but as often as parliament had limited the time of actions and remedies to a certain period in legal proceedings, the Court of Chancery had adopted that rule, and applied it to similar cases in equity; for where the Legislature had fixed the time at law, it would have been preposterous for equity, which by its own proper authority always maintained a limitation, to countenance laches beyond the period to which they had been confined by parliament; therefore, in all cases where the legal right has been barred by parliament, 15-496. the equitable right to the same thing has been concluded by the same bar. 63. In consequence of these principles it has been long settled, that where a mortgagee has been in possession for twenty years, without claim, that circumstance may be pleaded to a bill for redemption; unless there be an excuse by reason of imprisonment, infancy, coverture, or absence from the kingdom. For as the statute 21 Ja. 1. had made twenty years' possession a 10 Ves. 466. Tit. 15. c. 3. Anstr. R. Vol. bar to an entry and ejectment, there was the same reason for allowing it to bar a redemption. 1.138.-Vol. 111. 755. 64. It has been generally said that trust estates are not within the statutes of Limitation: but this proposition only applies to cases arising between a cestui que trust and his trustee, where there is no adverse possession; for Lord Hardwicke has justly observed that this rule does not hold between the cestui que trust and trustee on the one hand, and strangers on the other, as that would be to make the statute of no force at all; because there was hardly any estate of consequence Mackworth, 15 without such trust, and so the act would never take place; therefore where a cestui que trust and his trustee were both out of possession for the time limited, the party in possession had a good bar against both of them. Llewellin v. Vin. Ab. 127. Tit. 12. c. 2. Cholmley ". tivale's Rep. 65. It has been already stated that trust estates of freehold are considered, in equity, to be as liable to be devested by abatement or intrusion as legal estates are at law; for otherwise it would be extremely difficult to ascertain in what cases, and from what periods, the statutes of Limitation should affect them. 66. With respect to equities of redemption it has been settled in the following case that where a person has made a mortgage in fee, and continues in possession of the estate, paying the interest of the mortgage, he is considered at law as tenant at will to the mortgagee of the legal estate but in equity he is held to be the entire owner thereof, subject only to the payment of the mortgage. That his possession being nearly similar to that of a cestui que trust of a freehold estate, may be abated or devested by the entry of a stranger, on the death of the mortgagor; and that in such case the negligence of the heir of the mortgagor, in not claiming the estate within twenty years after such entry, will bar him from any remedy in equity. 67. George Earl of Orford having made a settlement Clinton, 2 Me of the estate in question in 1781, with a power of revocation, made a mortgage of it in fee in 1785, which it was agreed only operated as a revocation pro tanto, 171. |