Star.
London, England, 1829-06-30 00:00:00

PARLIAMENTARY PAPER.

REPORT OF THE COMMISSIONERS ON THE LAW
OF REAL PROPERTY. •
(Continued Item our Paper of yesterday.)
It appears to us that cases of fraud and uust may be
introduced as exceptions to the gemral enactment re.
specting the period 'within which equitable relief ma;
be granted, and that consistently with a legislative rule
upon the subject, power may remain in Courts ut
Equity to (*wee the performance of direct trusts, of
whatever standing. and to relieve against long% con-
cealed fraud when it is discovered. •
It is gener;lly said that en length of time is a bar to
relief in equity in e.lses of t•atid and trust; but this
prope.ittwo, we z.iitelimd, is to be confined to case, pf
uniliscoveted fraud. and actual or afirect trust. After
the fraud is known, there is no reason why subsequent
lapse of time should not be efiective as a bar. In cases
of actual or direct trust, as where the trust remains in
the trustee himself, who has undertaken the trust. or in
persons claiming through or under him without valu-
able consideration, no lapse of time can or ought to be
a bar to relief, as there cannot in susli a case be any
adverse possession; the possession of the trustee bens,' al-
ways in equity the [too-section of the ceslui gut trust. Nor
ought a trustee to be permitted to change his character
by purchasing the trust property from himself, except
under the restrictions imposed on such a transaction by
Courts of Equity. But in all cases of constructive and
implied trusts, where the parties, though claiming ad-
Tersely, have been held in equity to be trustees, as in
the cases of purchasers fur valuable consideration, with
notice of the trust, or purchasers, who at the time of
their purchase were, or shortly before had been, in fidu- '
ciary situations_ with reference to the property, as com-
missioners of bankrupt, assignees in bankruptcy,
solici-
tors, surveyors, and other agents, lapse of time has
always operated in equity as a bar to relief, and in all
such cases we conteive that twenty years adverse pos-
session ought to be the utmost limit to equitable inter-
ference, allowing for the statutable disabilities. In this
class may also be included the case of a trustee who
has purchased from his cedui fue trust.
We think, that for the sake of certainty and unifor-
mity, these rules should no longer be left in the breast
of Judges ; and that it is expedient that all equitable
estates and remedies be included in the proposed enact-
ments, by making twenty years. with allowance for
disabiliti,s, the limit for equitable inte'fereace, except
in cases of undiscovered fraud, and actual or direct trust.
Where a mortgagee has been twenty years in pos.
session without any payment or promise, or acknow-
ledgement, to sh ow that the relation or mortgagor and
mortgagee continues, the right to redeem is gone, but
evidence of any acknowledgement in writing or by
isnot, to the mortgagor or to a stranger, or any me-
morandum or account found among the papers of the
mortgagee, admitting or evidencing that he holds in
that character, interrupts the bar. For this reason
mortgage titles are insecure, and for a very long period
almost %holly unmarketable. When the price of land
is depressed. and the mortgaged premises are not worth
the.mortgage money, they are abandoned by the mort-
gagor. From some local or general cause, or from
actual improvements by the mortgagee, the value after
many years is increased. A bill to redeem may teen
be supported by some expression the mortgagee is
sworn to have used in conversation, or some private
•note which he is compellable to divulge, written by him,
within twenty years. In anal..gy to the salutary statute
lately passed (9 Geo. IV, c. 14), respecting acknow-
ledgements and promises to revive debts barred by the
Statute of Limitations in personal actions, and to render
adults liable for debts contracted during infancy, we
propose that it should be enacted, that where the mort-
gagee is in possession, the bar in equity shall nut be
affected by any promise, .statement or acknowledge-
ment, unless it were in writing, and made by the•mort-
gagee or those claiming wider the mortgagee to the
mortgagor or those claiming under the mortgagor.
We now proceed to the consideration of incorporeal
hereditaments, and we begin with Rents. With respect
to certain rents, there is at present no limitation either
as to title sor arrears, except that of fifty years, created
by the statute of 32 Henry 8, which is held to preclude
any presumption of release or payment. We think the
limitation as to quit rents, as well as rent charges, and
.all periodical payments issuing. out of land other than
conventioaary rents between landlord and-tenant, should
be assimilated to the limitation of actions as to the land
itself; that what is tantamount to a dispossession of
twenty years, should bar the right to the rent, and that
the arrears, like other debts, should be barred by the
lapse of six years. Where rent is reserved upon a lease
under seal, there is no limitation as to the arrears, al-
' though in practice where there is no proof of acknow-
ledgesbent, a Jury is directed to presume payment after
twenty years. We conceive that a positive bar would
be much preferable to. a presumption which may be
rebutted; and we see no reason why annual payments
should be allowed to be sued fur after the expiration of
six years, whether they may have been secured by deed
or only arisefrom a simple contract. We are disposed
to think that the statutes respecting landlord and tenant
might be beneficially consolidated and amended, with
the correction of some antiquated doctrines of the com-
mon law on the subject, and the addition of some pro.
visions required by the change.' of the times, according
to the precedents lately set in other departments of tf.e
law, by which we think the most. essential service has
been rendered to the community. To this subject we
propose to give detailed attention hereafter.
The law relative to the prescriptive right to profits
and easements to be taken in or enjoyed over thksoil
of another, appears to us to require amendment. This
right can be only established by what is deemed legal
proof of an adverse enjoyment of 640 years. By the
ancient rule of the common law, enjoyment of such a
right was to be proved from the time whereof the
memory of man ruoneth not to the contrary, or during
legal memory. Had this meant as far back before the
dispute arose as could be proved by living witnesses
according to the usual duration of human life, the sale
would Dothan been unreasonable. But the limits of

legal memory were formerly Elector
lung made to depend upon the period
writ of right, which till 32 Wray 8.
Min period before the commencemer
dated from some historical event fixed from time to
time; as the beginning of the teign of• Henry I. the re-
turn of King John out of Ireland; the journey of King
Heary:3 into N.antandy. or the coronation of King
Richard 1. The last epoch being fixed by the Statute
'of Westminster '4, c. 46, as the time after which seisin
must he proved to maintain a writ of right, it was from
thence adopted as the commencement of legal memory.
VlThen N Henry 8, provided that there should be a pia
igressive period of limitation for writs cf right, legal
merlon ought, preserving the existing analogy, to
'have been considered as intending a period of sixty
years next before the dispute arcse. But unfortunately
the analogy to writs of right was dropped, and the
reign of Richard I. was adhered to, and is considered
the con►meucement of legal memory for all purposes at
the present day. The practice cf the Courts hAs created
a remedy to this inconvenient and absurd rule in ordi.
niry cases; for proof of enjoyment as far back as living
witnesses can speak raises a presumption or an enjoy-
ment from the remote era. In som.,- cases, however,
the practical restudy fails, and tlle rule produces the
most serious mischiefs. A right claimed by preserip-
don is always disproved, by showing that it did not or
could not exist at any point of time since the commence-
ment of legal memory, or although it originated before
the commencement of legal memory, that at some soh.
sequent period the servient tenement, or that over which
The right i:oxercised, or the dominant tenement, or that
to which the right is attached, °ace belonged to the
same individual, whereby the prescriptive right was
extinguished. Amidst these difficulties, it has been
usual of late, for the purpose of supporting a right
which has been long enjoyed, but which can be shown
to have originated within time of legal memory, or to
have been at one time extinguished by unity of posses.
sion, to resort to the clumsy fiction of a lost grant,
which is pleaded to have been made by some person
wised in fee of the servient to another seised in ice of
the dominant tenement. But besides the objection of
its being well known to the Couroel, Judge. and Jury,
that the plea is unfounded in fact, the object is often
frustrated by proof of the title of the two tenements
having been such that the fictitious grant could not
have been made in the manner alleged in the plea. The
contrivance therefore affords only a chance cf protec-
tion, and may stimulate the adversary to an investiga•
tion for an indirect and mischievous end of ancient title
deeds, which for every fair purpose have long ceased to
be of any use.
We propose that legal memory, with respect to this
species of property, shall always be taken to be sixty
years ante titan inalant, or rather that adverse enjoy-
ment during this period of any profit or easement in or
over the soil of another, shall be conclusive evidence of
a right to such profit or casement. It will still be for
a Jury to determine, in case of dispute, whether the
right has been exercised conventionally or adversely,
and there will be no greater danger than at present of
a license or limited grant becoming the foundation of a
preset iptive right. But it must not he open to the party
denyiag the right to contend that from !rases or ( ther
patticular estates it could not have been lawfully
granted by the occupier of the soil within the 60 years.
It can only be in very rare cases that the owner of the
ice, or at least an estate cf inheritance, has no: been in
possession during some part of such a period ; and even
in that case, he might have put in end to any usurped
right by bringing an action on the case fur an injury to
his reversion by the exercise of it. Without making ad-
verse enjoyment daring the new period of limitation
conclusive evidence of the right, comparatively little
advantage would arise from the reduced limit of legal
memory.

The disabilities of the parties against whom this pre•
scription is to run must likewise be disregarded.
But we are of opinion. that with respect both to pro-
fits and easements a shorter period, viz. twenty years,
should also be established as affording presumptive evi-
deuce of right, liable to be rebutted by proof, that
during that time the servient tenement was occupied
under a lease, or was held by a tenant for life. or by a
person under disabibty. The effect of the 20 years enjoy-
ment should not, we think, be defeated by the esistence
of an estate tail. At present the exercise of a right of
common or the use of a way or of a Ater, or any easement
for 20 years, constitutes a prima faeic case to establish
the right ; and the rule may be continued with, ut in.
convenience. But we think the necessity of alleging the
grant of an easement in pleading might in all cases be
dispensed with. The light to an easement, generally
speaking. is in truth acquired, net by any deed, but by
the acquiescence fur astern period of a party competent
to interrupt the exercise of the right ; and this is now in
substance considered equivalent to a grant though no
grant be executed. In a declaration for disturbance of an
easement it is enough to state, that the plaintiff is pos-
sessed of the tenement, and that the right is appurtenant
to it. When an action is brought for any thing done
in the ezeici,e of the right, there seems no sufficient
reason why the right must be traced to its origin, or
why it should not be permitted in the plea as well as in
the declaration to allege the defendant's possession of
the tenement, and that by reason thereof he is entitled
to the right as appurtenant. The, party should not be
put ender greater difficulties, if he be in possession, and
an action is brought against him for exercising the right,
than if he be out of possession, and he brings an action
for the obstruction. The evidence is the same in both
instances, and we think the party who claims the right,
whether plaintiff or defendant. should be allowed simply
to allege. that he is entitled to it as belonging to the
tenement in respect of which it is claimed, and to
establish it presumptively by proving an adverse en-
joyment of twenty years, and conclusively by an adverse
enjoyment of sixty years. Prescribing in a que estate,
'that is in right of the owner of the fee, and ttiose whose
estate he has, and tracing title to the possession of the
dominant tenement from thesowner of the lee, would
thus be dispensed with, and records in actions of tres-
pass to try these rights. materially shortened and sim-
plified. Where there is an actual grant, it may, be ren-
dered available as now in pleading and in proof.
While on this subject we may suggest the propriety
of enacting, that where a right to brad, or any interest
in it, is in dispute, it shall in no case be necessary to
plead the Statute of Limitation. either affirmatively or
negatively ; and that upon proof of The facti.. the title
shall, to all purposes, be considereaas rightfully and

•
. .
1).112..i4
•
1 !
• ,
PRICE SEVENPENCE.
Dory were formerly fluctuating. They were
eto depend upon the period. for bringing a
Rht, which till 32 Wray 8. was not any cer-
d before the commencement of the suit. but

-- - -m *;.

_„ . •

77

absolutely gained or extinguished by the operation of
the statute.
It seemeto us also that legal memory might be re-
duced to sixty years, with respect to prescriptive obli-
gations arising out of the possession or tenure of lauds,
such as to make fencee or to repair roads. Evidence
of antecedent usage may be admissible on either side;
but if the Jury believe that the act has been done as
often as occasion required, for a period of sixty years,
on the footing of obligation, this ought to be sufficient
to establish the obligation, without considering whether
it did or could exist in the reign of Richard f.
It bas been suggested that exceptions ought to be in-
troduced with respect to casual rights and obligations,
the occasions for exercising or enforcing which very
rarely occur ; but rights and obligations which remain
dormant for sixty years, and do not rest upon express
contract, to be proved by written documents, may pro•
bably be entirely disregarded as more likely to cause
litigation than to produce any real benefit.
The extinguishment of rights and obligations by
nonuser, will require corresponding rules, which seem
much preferable to the fiction of non-existing releases
and surrenders.
Whether legal memory could be reduced to a period
of sixty years universally, or with any and what excep-
tions, it is beyond our province to inquire.
We have next to mention a species of Real Property
of great importance, as to which there is at present no
limitation. The possessory action of pare impedit, by
which the right to an advowson is usually tried, may
be brought upon any presentation, however remote.—
Thus the title to an advowson may be questioned after
a family has been for centuries in the undisturbed pos-
session of it; and upon the sale of an advowson, or of
a next presentation, great trouble and expense are
generally incurred in snaking out a title to the satis-
faction of a purchaser. There must become difficulty
in traming a limitation for a species of property of so
pecithar a nature. Mere length of time would not
satisfy justice, unless the period were mach beyond the
usual bounds of living memory, because an opportunity
of contesting the right may not occur more than once
in a century. Lord Coke states an instance of a living
of his own, in which a parson had been incumbent
above fifty yeats ; and instances might easily be men-
tioned in which two successive incumbents have con-
tinued for upwards of a hundred years. But adopting
the suggestion of Mr. Justice Blackstone, whose high
authority we are glad to have for this as well as for
some other amendments of the law which we propose,
we think a limitation may be safely framed, com-
pounded of length of time and number of avoidance.,
or rather of presentations, or opportunities to present
by tole patron. We conceive that (counting from the
time w hen the title to an advowson has accrued in pos-
session) as soon as sixty years have elapsed, and there
have beers three presentations, with institution and in-
duction thereupon, by a person claiming adversely to
be patron, the right should be barred. The length of
the period is required to guard against collusive avoid-
ances and presentations ; and it seems sufficient for this
purpose. Presentations by the Crown, on the promo-
tion of the incumbent to a bishopric, of course will not
be reckoned ; but a presentation by lapse we think
ought, as an opportunity then existed of asserting the
right. It seems unnecessary to clog this limitation with
disabilities which have generally not been allowed where
the period exceeded twenty years; but as against a re-
maindet-m in, atter any estate less than an estate tail,
the period r f .ixty years must be reckoned from the re-
mainder coming into possession on the determination of
the particular estate. It has been suggested that the
period should be extended to one hundred years, and
that the adverse possession should be a bar to all the
world It se-ms, however, mo,e in analogy to the
guneral principles of the law of England to give effect
to adverse enjoyment, only from the acctuing of the
tight to be bstred.
On the still more important subject of Tithes, we
propose at present to confider of a limitation for them
in the hands of the laity only. We hope to suggest
some improvements in the law, by which tithes in the
hands of ecclesiastics may remain equally valuable to
them, and he rendered less productive of vexation to
the laity. We are deeply impressed with the conviction
that the property of the Church should be held sacred,
and that the Clergy should be protected in the enjoy.
mem of their possessions and rights; but we conceive
that the Clergy might derive benefit from regulations
that might lessen the litigation to which the claim to
tithes now too frequently gives rise, and might rescue
this species of property from the odium which en this
account is sometimes unjustly cast upon it. We should
venture to bring forward any propositions on this sub-
ject only after the most mature consideration, and after
an ample opportunity had been afforded to those most
immediately interested to give an opinion as to their
probable tendency ; with this view we have submitted
certain questions, respecting tithes and other ecclesias-
tical property, to the Bight Rev. the Bishops; and we
delay proposing any alteration in the law upon this
subject, Ontil we shall have been favoured with the
answers of such of them as may be pleased to commu-
nicate their opinions to us. We feel reluctance to pro.
pose any new rule affecting the property of the Church
without their previous sanction.
We are fully prepared to say, that in our opinion, the
tight to impropriate tithes in the hands of the laity
ought to be regulated by the same principles as the
right to any other species of lay property. For this
purpose they are not to be distinguished from common
of pasture, estovers, rent charges, or any other profit
issuing out of land. They are in commerce, and they
ought to be subject to the same rules of limitation and
prescription by which other property is governed. The
law has been settled otherwise. There is no statute of
limitation applicable to the right to impropriate tithes:
soil, contrary to the general principles of jurispendence,
by the practice of the Courts,every thing has been pre-
sumed to disturb enjoyment arid to stir up controversy•
In a parish where the Rectory is impropriate, it can be
proved that no tithes have been paid for a certain par•
Lion of land, and no claim has been made for them
daring two hundred years; the lay rector may have
conveyed the tithes to the owner of the land: the pre-
sumption of a Court of Justice under these circum•
stances might be expected to be that he has done so,
and that the deed has been lost; this is not like the pre.
iumption of a lost grant of an easement which we have
ventured to censure; upon sound principles of reason-
ing. the legitimate inference froth the premises is that
there was a grant bye/Web the tithes were severed from
the rectory. Though the existence of an Act of Perlis.
■neat has been presumed against the Crown to protect
a much shorter•period of enjoyment, it has been held
that such a grant cannot be presumed from nonpay-
ment against the lay imprnpriator, and that unless evi
dente be given of thegtant having existed, tithes must
still be paid to, him. Long enjoyment, which strengthens
eh o: her titles, weakens this; and here the longer that
the claimant has been out of possession be has the better
chance to remelt.
The doctrine eppears to us equally unreasonable that

a composition real cannot be presumed from any length
of uninterrupted liagetand cannot be established with-
out evidence of a deed Which, supposing it to have ex-
isted, was most probably executed before the dissolu-
tion of the monasteries in the reign of Henry VIII. We
likewise think, that where tithes belong to lay impro.
priators, a modes that has de facto existed and been
acted upon for a given number of years ought not to
be set aside. The land in the parish, and the rectory,
have been bought and sold on the footing of the mo-
dus, there is no public policy against the establishment
of such a modus, and it is very unjust between the par-
ties interested, that it should be set aside for supposed
rankness or on any other ground.
It has been argued with much force, that the deci•
sions on which the present state of the law on this sub-
ject rests are erroneous, and that the true principle to
apply to them would have been not prescription, or
immemorial usage, or ancient grant, which must het,
applied to ecclesiastical property, because the power d
alienation has not been possessed by ecclesiastical per-. 1
sons in modern times, but presumption of a lawful coo
veyance, which may arise from a much shorter period
of enjoyment. We apprehend, however, that the deci-
sions we have referred to are too numerous to be over.
turned, although they have been often questioned, and
,that the law upon this subject can only be placed on a
right footing by Legislative enactment.
We propose, that where titles belong to lay imps-
priators, seised in fee, or for any estate of inheritance,
adverse enjoyment shall be the same bar to a right to
the tithes as to a right to the land, and that nonpay-
ment as of tight for twenty years shall be sufficient as
against any person from whom the tithes are with.
holden, and those claiming under him, to establish the
exemption of the land from payment of tithes—the
onus to be on thelay rector to prove payment within
twenty years, or to account for the nonpayment—and
adopting the beforementioned rules respecting disabili-
ties. The perception of tithes during twenty years will,
en the same principle, be conclusive esidenue that they
are payable.
We likewise propose, that where tithes belong to lay
improptiators, a court or jury shall be permitted, from
long usage, to presume a composition real without evi-
dence of any deed; and that where a modus has been
acted upon for twenty years, the lay rector not having
been under disability, the modus shall not be liable to
be set aide by the lay rector against whom the modus
has been enjoyed, or those claiming under him or claim-
ing in remainder or reversion after an estate tail, but
that it shall be for ever binding as against such parties
and those claiming under them.
No apprehension on the part of the clergy need be
felt, from the proposal that lay tithes shall be governed
by the same rules as other lay property. It is obvious
that those rules cannot,without important modifications,
be justly or reasonably applied to ecclesiastical tithes
which are not in commerce, and which are enjoyed by
a succession of tenants fur life, who from various mo.
tives may compromise the rights of their livings, so far
as their individual-acts are allowed to do so, and per-
mit usages to spring up, tending to strip the church of
that patrimony, which laws as binding as those which
secure private property, and resting besides on clear
grounds of public policy, require she should enjoy un-
impaired.
To obviate disputes between the lay impropriator and
the landholder, and to promote the extinction of 'rapt();
priate tithes, it seems expedient to enact, that where the
landholder purchases the tithes of his own land, there
shall be a power of merging them in the land. At
present there is no mode by which a merger or win.
guishment of the tithes can be effected. By the old
law established in favour of the church, no layman was
capable of holding tithes except by means of a real
composition, which gave to the ecclesiastical owner a
supposed equivalent; impropriate tithes are still kept
distinct horn the land, and notwithstanding unity of
possession, they continue to be held under separate
titles. In conveyances and wills subsequently made,
the tithes do not pass unless they be expressly named.
Singular as it may appear,this is not usually known to
the ()oilers, or to legal practitioners in the country, to
whom they commonly resort for advice. * Both these
classes of persons are apt to believe that after the pur-
chase of the tithes, the land is tithe free, and to frame
their settlements and wills accordingly. In various in-
stances, therefore, the intention that the land should pass
discharged of tithes is defeated, the tithes going in one
line and the land subject to the revived burthen oftithes
in another. A still more unfortunate effect is, that the
tithes, after the purchase, not being made the subject
of conveyance, and the grant being lost, there, is no
evidence to resist the claim for tithes, which may be
made by any succeeding lay rector, except the mere
non-payment, and that, we have observed, as the law
now stands, is insufficient.
We therefore propose that the lay owner having the
legal and beneficial estate in fee in tithes, may by deed
merge those tithes in the land, and that the land for
ever thereafter shall be discharged of tithes. It may
be hoped that this regulation will encourage the pur-
chase of tithes by the owner of the land from the lay
irnpropriator, and that in course of time, with perfect
respect to the sacredness of property, lay tithes may be
entirely extinguished. Even some risk of inconvenience
might be run to further so desirable an object. Every
subdivis on of interest in the same prof eity is attended
with various inconveniences ; a separate tight to one
tenth of the produce of the soil against the cultivator
is calculated to raise disputes and to retard improve-
ment ; and where there is no collateral benefit sought
by its continuance, it is an unmixed evil.
(To be continued.)

THE EVI4.INING STAR.

LON I)ON.

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