enacted by the 3 & 4 Will. 4, c. 27, s. 21, that when the right of a tenant in tail of any land or rent to make an entry or distress or to bring an action to recover the same shall have been barred by reason of the same not having been made or brought within the period thereinbefore limited, which shall be applicable in such case, [the ultimate period of limitation being forty years,] 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. And by s. 22, it is further enacted, that when a tenant in tail of any land or rent, entitled to recover the same, shall have died before the expiration of the period thereinbefore limited, which shall be applicable in such case, for making an entry or distress or bringing an action to recover such land or rent, 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. an It is then further enacted, by s. 23, that when a tenant in tail of any land or rent shall have made assurance thereof, which shall not operate to bar an estate or estates to take effect after or in defeasance of his estate tail, and any person shall by Where there shall have been possession, un der an assur ance by a tenant in tail, which shall not bar the remainders, they shall be barred at the years after the virtue of such assurance, at the time of the execu- end of twenty tion thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in the time when the assurance, if then executed, would have barred them. SECTION 3. receipt of such rent, and the same person, or any other person whatsoever (other than some person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail,) shall continue or be in such possession or receipt for the period of twenty years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of twenty years, such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right to take effect after or in defeasance of such estate tail. Title to advow sons. XXXVI. Again, with respect to Advowsons, which were not subject to any limitation, it was formerly usual to require the title to be stated, not for sixty years merely, but for a period as extensive as possible. Advowsons, however, are now specifically provided for by the new statute of limitations. By s. 30, it is enacted, that, after the 31st Decembut within three ber, 1833, no person shall bring any quare impedit No advowson to be recovered incumbencies or sixty years. or other action, or any suit to enforce a right to present to, or bestow any church, vicarage, or other ecclesiastical benefice, as the patron thereof, after such period as hereinafter is mentioned; (that is to say), the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of SECTION 3. presentation or gift of such person, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years; and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as, with the times of such incumbencies, will make up the full period of sixty years. And by s. 31, it is provided and further enacted, that when on the avoidance, after a clerk shall have obtained possession of an ecclesiastical benefice adversely to the right of presentation or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty or the ordinary by reason of a lapse, such last-mentioned clerk shall be deemed to have obtained possession adversly to the right of presentation or gift of such patron as aforesaid: but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of the Act, be deemed a continuation of the incumbency of the clerk so made bishop. Incumbencies after lapse to be reckoned within the period, but not incumbenmotions to cies after pro bishopricks. remainder, &c., after an estate tail, shall be barred. It is then further enacted by s. 32, that in the where person construction of the Act every person claiming a right claiming an to present to or bestow any ecclesiastical benefice, as patron thereof, by virtue of any estate, interest, or right which the owner of an estate tail in the advowson might have barred, shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action, or suit, shall be limited accordingly. SECTION 3. No advowson to be recovered after 100 years. Leasehold titles. And by s. 33, it is provided and further enacted, that, after the thirty-first day of December, one thousand eight hundred and thirty-three, no person shall bring any quare impedit or other action or any suit to enforce a right to present to or bestow any ecclesiastical benefice, as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift held or derived under the same title, unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share, or right held or derived under the same title. XXXVII. Leasehold titles do not fall within the rule above laid down; for, although a lease may be more than sixty years old, yet, unless there be an express stipulation to the contrary, there is, in every contract for the sale of a lease, an implied undertaktaking in every ing to make out the lessor's title to demise, as well as that of the vendor to the lease itself, which implisor's title to de- ed undertaking is available at law as well as in equity (a). "The true ground," to use the language Implied under contract for sale of a lease to make out les mise, as well as that of the ven dor to the lease itself. (a) Souter v. Drake, 5 Barn. & Ad. 992: Purvis v. Rayner, 9 Pri. 488. of the Court in Souter v. Drake, of refusing relief SECTION 3. by a specific performance where the lessor's title to demise is not established is, that the vendor by his contract was bound to make out a good title in all respects to the subject agreed to be sold, including the right of the lessor to demise, and that he had not done so. If that is his contract he must equally fail in a Court of law, unless he can prove a performance of it on his part. And no reason occurs to us why, as the Courts of law and equity would put the same construction on a contract for the sale of a freehold estate, they should do otherwise in respect of a contract for sale of a leasehold." derivativus. The reason for requiring the production of the Cessante statu lessor's title to demise, (apart from all question of peritivo cessat contract), is sufficiently obvious. He might be tenant for life only, and yet have attempted to grant a lease for five hundred years; or he might have assumed a power, which he did not possess, of appointing for such or any other term; or even, assuming that he had an estate commensurate with the interest alleged to be created, yet such estate might be in mortgage; and the lease of a mortgagor, even if in possession, binds not the mortgagee (a). XXXVIII. Although it be stipulated in the conditions of sale that the vendor shall not be bound to (a) Keech v. Hall, Dougl. 21; Thunder v. Belcher, 3 East, 449; Birch v. Wright, 1 T. R. 378; Doe d. Roby v. Maisey, 8 Barn. & Cr. 767; Pope v. Biggs, 9 Barn. Original lease assignments ought in general to be produced. and all mesne |