Imágenes de páginas

have been limited, or taken effect, after or in defeasance of such estate or interest in possession. When the right of a tenant in taile of any land or rent to make an entry, &c. shall have been barred by reason of the same not having been made or brought within the period before limited, which shall be applicable in such case, no such entry, distress, or action, shall be made or brought by any person claiming any estate, interest, or right, which such tenant in tail might lawfully have barred. When a tenant in tail of any land or rent, entitled to recover the same, shall have died before the expiration of the period before limited, which shall be applicable in such case, for making an entry, &c. no person claiming any estate, interest, or right, which such tenant in tail might lawfully have barred, shall make an entry or distress, or bring an action to recover such land or rent, but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress, or brought such action. When a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage, but within twenty years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor, or person, in writing, signed by the mortgagee, or the person claiming through him; and in such case, no such suit shall be brought but within twenty years, next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual, as if the same had been given to all such mortgagors or persons; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money, or land, or rent, by, from, or under him or them, and any person or persons entitled to any estate, or estates, interest, or interests, to

e S. 21. f S, 22.

& S. 28.

take effect, after or in defeasance of his or their estate, or estates, interest, or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage, as against the person or persons entitled to any other undivided or divided part of the money, or land, or rent; and where such of the mortgagees or persons aforesaid, as shall have given such acknowledgment, shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgaged [Sic] money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent, on payment with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money, as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. By stat. 1 Vict. c. 28. (3rd July, 1837,) reciting that doubts had been entertained as to the effect of the foregoing act, so far as the same related to mortgages, and that it was expedient that such doubts should be removed, it is declared and enacted, that any person entitled to or claiming under any mortgage of land, within the definition contained in the first section of the act, may make an entry or bring an action at law or suit in equity, to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit shall have first accrued.

Provided", that any archbishop, &c. may make an entry, &c. within such period as hereinafter is mentioned, next after the time at which the right of such corporation sole, or of his predecessor to make such entry, &c. shall first have accrued, (that is to say,) the period during which two persons in succession shall have held the office or benefice, in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the times of such two incumbencies, and such term of six years, taken together, shall amount to sixty years; and if such times, taken together, shall not amount to sixty years, then during such further number of years, in addition to such six years, as will with the time of the holding of such two persons, and such six years, make up sixty years; and after the said 31st December, 1833, no such entry, &c. shall be

h 3 & 4 W. 4. c. 27, s. 29.

made or brought at any time beyond the determination of such period. At the determinationk of the period limited to any person for making an entry, &c. the right of such person to the land, &c. for the recovery whereof such entry, &c. might have been made or brought within such period, shall be extinguished. By s. 35. the receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee, or any person claiming under him, (but subject to the lease) be deemed to be the receipt of the profits of the land for the purposes of this act.

By stat. 3 & 4 W. c. 106. s. 2. descent shall be traced from the purchaser; and the person last entitled to the land, shall, for the purposes of this act be considered to have been the purchaser, unless it shall be proved, that he inherited the same, in which case the person from whom he inherited the same, shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and in like manner, the last person from whom the land shall be proved to have been inherited, shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same.

Where land" descends to the son of an illegitimate father, who is proved to have been the purchaser thereof, and the son dies seised and intestate and without issue, such land does not devolve on the heir ex parte materná, but escheats to the crown, notwithstanding the foregoing statute.

XI. Evidence.

Evidence on the part of the Lessor of the Plaintiff.—

The evidence required to support an ejectment will vary according to the title of the lessor of the plaintiff.

Devisee of a Term.—Where the lessor of the plaintiff is devisee of a term, he must produce in evidence the probate of the will, and prove the assent of the executor to the devisem; for where a person devises, either specially or generally, goods or chattels, real or personal, and dies, the devisee cannot take them without the assent of the executor. Lessee for years devised the term to his executor for life", paying £50 to J. S., remainder to the lessor of the plaintiff. The executor dying, his executrix entered upon the residue of the lease

k S. 34.
I Doe d. Blackburn v. Blackburn,

I M. & Rob. 547.

m 1 Inst. 111. a.
n Young v. Holmes, Str. 70.

and possessed herself of the term. An ejectment having been brought, it was holden, that the executor took as executor, and not as legatee; and then the remainder over was not executed, and that it was incumbent on the remainder-man to prove a special assent thereto, as to a legacy; whereupon plaintiff proved payment of the £50; and that was holden to be a sufficient assent, and the plaintiff recovered.

Administrator.-Where the lessor of the plaintiff claims title as administrator, in strictness he ought to produce the letters of administration under the seal of the ecclesiastical court. But the original book of acts", wherein the orders of the court for granting letters of administration are entered; or an examined copy of the entry in that book; or an exemplification P of the letters of administration will also be evidence. If the lessor of the plaintiff make title as assignee of a term from an administratory, cum testamento annexo, an exemplification, though not in hæc verba, yet agreeably to the form of the ecclesiastical court, will be good evidence (35).

Boundary.-Reputation is admissible evidence in questions of boundary. Hence where the question was, whether land was in the parish of A., or the parish of B., the land in B. being tithe-free; it was holden", that ancient leases granted by the ancestor of the plaintiff's landlord, in which the land was described as being in parish B., were admissible as evidence of reputation, that the land was in that parish.

Copyhold.-If the plaintiff make title in the lessor as lord of a manor”, who has a right by forfeiture of copyhold, he ought to prove that his lessor is lord, and the defendant a copyholder; and that he committed a forfeiture: but the presentment of the forfeiture need not be proved, nor the entry or seizure of the lord for the forfeiture.

Tenant by Elegit.-As under an elegit the sheriff cannot deliver the land extendedt, the tenant by elegit must bring n Garrett v. Lister, 1 Lev. 25. Pease- q Kempton v. Cross, Ca. T. H. 108.

lie's case, I Lev. 101. Elden v. Ked- r Plaxton v. Dare, 10. B. and C. 17. dell, 8 East, 187.

s Peters d. Bp. of Winton v. Mills, per o hay v. Clerk, London Sittings, after Tracy, Surrey, 1707. Bul. N. P. 107.

H. T. 1775. Lord Mansfield, C. J. t Per Lord Kenyon, C. J. in Taylor v. 13 East, 238.

Cole, 3 T. R. 295. p Per Lord Hardwicke, C. J. in Kemp

ton v. Cross, Ca. T. H. 108.

! (35) For the evidence necessary to establish a title by the heir, see Peake's Evid. part II. chap. xiv. where this subject is treated with great perspicuity. For evidence on ejectment brought by the de. visee of land, see post, tit. Statute of Frauds, s. 3.


an ejectment (36), to support which he must either produce in evidence an examined copy of the judgment; of the writ of elegit taken out upon it, and the inquisition and return thereupon; or an examined copy of the judgment roll, containing the award of elegit and return of the inquisitionu. In an action by the lessee against the assignee of a lease, the plaintiff having proved the delivery of the original lease to the defendant, and the execution of the counterpart, the defendant put in the original lease, which was produced by a party to whom defendant had assigned it, by a deed reciting the lease, it was holden”, that it was not necessary for the plaintiff to call the subscribing witness to prove the execution of the lease. It is not competent to a party, who has taken under a deed all the interest which that deed was calculated to give, to dispute its execution.

The sheriff's return to an elegit stated, that he had caused to be delivered to J. S., one equal moiety of a house ; it was holdeny that this return was void, for not setting out the moiety by metes and bounds, and that the objection might be taken at nisi prius to an ejectment brought by J. S. claiming as a tenant by elegit. But on elegit sheriff may

deliver entirez farms as a moiety of the defendant's lands. Á verdict was found for the lessor of the plaintiff, who claimed under a judgment recovered against the defendant, and writ of elegit and inquisition thereon taken and returned. Upon motion to enter nonsuit, the objection was, that by a deed executed 23d June, 1809, long before the judgment was recovered, the

u Ramsbottom v.Buckhurst, 2 M. and y Fenny d. Masters V. Durrant, 1 B. S. 565.

and A. 40. x Burnett v. Lynch, 5 B. &. C. 589. z Doe d. Taylor v. Lord Abingdon, B.

R, M. 21 Geo. 3. 2 Doug. 473.

(36) “I am aware that it has in several places been said, that the tenant by elegit cannot obtain possession without an ejectment, but I have always been of a different opinion.—I have no doubt that the sheriff may deliver actual possession of a moiety, except where the land is under a previous demise, in which case the sheriff sets out the moiety by metes and bounds ; for the sheriff cannot disturb the previous title of the tenant in possession. Where the sheriff has set out the moiety, the tenant is bound to pay rent for his moiety to the tenant by elegit. In a case of this kind, attornment was not necessary, even before the statute of attornments, because tenant by elegit was in by judgment of law, to whom attornment was not necessary.”—Per Gibbs, C. J. 6 Taunt. 206, 207.

« AnteriorContinuar »