Review: Bythewood's Conveyancing. 323 The Notes and Dissertations on each sub- | few of the articles on which the learned ject are brought down to the time of pub-editors of the work have treated. lishing the several volumes; and the Cases Amongst these, we may notice Leases; and Statutes are stated and commented the nature of which is subdivided, as folupon according to their respective degrees lows:- who may be lessors; who may be of importance. In the first place we shall lessees; what may be demised; the form describe the general plan and scope of the of a lease; assignments of leases; how a work, and notice so many of the details as lease may be determined; and stamps. our limits will afford. It is arranged, as to The subject of Mortgages is treated of under its leading subjects, in alphabetical order. the heads of-practical directions; who may be mortgagors; who may be mortgagees; what may be mortgaged; the mode of effecting a mortgage; collateral securities; stamps; and miscellaneous points. The first volume, and part of the second, comprises Acknowledgments, Affidavits, Agreements, and Annuities, and the collateral assurances connected therewith. In the second volume, the precedents em- The decisions on Marriage Settlements brace the heads of Appointments, Appor- are noticed at considerable length; and those tionment, Arbitration, Assent, Attestation, on Separation Deeds are concisely stated. Attornment. For the precedents of Assign- The various kinds of Purchase Deeds: -as ments, reference is made to the several appointments, assignments, bargain and sale, subject matters assigned. The third volume feoffments, releases, &c.- are considered in contains Awards, Bargain and Sale, Bill distinct dissertations, and appear to comof Sale, Bonds, and Confirmations. The prise all the law on the subject. All these fourth volume embraces the heads Cove-matters are well considered, the doctrines nants, Defeazances, Directions, Disclaim- relating to them stated, and the cases cited ers, Enfranchisement, Exchange, Estoppel, which bear on the several points that have Feoffment, Fines, Forfeiture, Gifts, Grants, been brought into question. Indemnity, Land Tax, and Leases. The Under the head of Trust Deeds, comfifth volume concludes the subject of Leases, prising those by way of security; those for and is followed by Letters of Attorney, charitable and religious purposes; and on Letters of Administration, Letters of Li- arrangements between debtors and credicence, Letters Patent, Licence, Manumis- tors- there is a very able and comprehension, Memorials, and Mortgages. The sive treatise on the several topics which sixth volume is occupied by Deeds of Par- the subject includes. The dissertation on tition, Partnership, and Purchase. The Wills is full and valuable; and the subject seventh volume completes the subject of is considered under the following heads: Purchase Deeds, and proceeds with Reco- who may make a will; who may take under very Deeds, Releases, Separation Deeds, a will; what may be devised or bequeathed; and Settlements. The eighth volume con- the ceremonies necessary for making a will; cludes the precedents of Settlements, and and practical directions. The notes on contains also those of Transfers, Trust Trustee Deeds, including an analysis of the Deeds, and Trustee Deeds. The last vo-1 W. 4. c. 60, and the cases which have lume is confined to Warrants of Attorney been decided under it, with the precedents and Wills. The volumes from 4 to 9 in- of different deeds, are of considerable prac. clusive, contain an Index to the Notes of tical value. each volume separately; and the last volume is accompanied by a very copious Index, both to the Precedents and the Notes. best recent precedents in actual practice, and sufficiently comprehensive to suit the various circumstances occurring in general practice, without being too voluminous, or attempting to meet every possible contin We are unable to review many other parts of the work which are deserving of commendation, and are glad that the ProThe Preliminary Dissertations to each class fession, at length, possesses a work much of deeds, and particularly the more import-needed, which has been prepared from the ant ones, are very able productions, evidently composed with great care, precision, and conciseness: affording all the information which the student may require in the outset of his labors, and furnishing to the practitioner of experience, the means of re-gency or complexity of detail. freshing his memory, and directing him, where necessary, to more complete sources of information and assistance. Our limits prevent us from dwelling on more than a 324 The Property Lawyer, No. XXVI. THE PROPERTY LAWYER. No. XXVI. ASSIGNMENT OF LEASES. not, it ought to be reversed. We are of opinion that they do not. Are then, said Denman C. J., the words in question meant to be used as words of agreement between the assignor and assignee, or words of qualification to modify and restrain the generality of the words which precede, and to express clearly the intention of the assignor not to assign an absolute term, but a term subject to all the obligations towards the lessor to which it was originally liable? To determine this we must look at Ir is a well established rule, that no precise words are necessary to constitute a covenant Com. Dig. Cov. A. 2; but it must be clear that they are meant to operate as an agree-the indenture as stated on the record, and ment, and not merely as a condition or qualification. Com. Dig. Cov. A. 3. 1 Roll. Abr. 518, per Denman, C. J. 1 Cromp. & Mec. 657. This principle it was necessary to apply to the following case, which is of very usual oc Currence: observe in what part the words occur: they come after the habendum, and constitute part of it; though the indenture contains the language of both parties, in the granting part of the words are those of the grantor, which are to be taken most strongly against himself; and, therefore, it was material for him to qualify the grant, that he might not be considered as conveying any greater estate than he It was an action of covenant brought by the really intended: this is properly done in the defendant in error, on an indenture of assign habendum. Its office is to limit the certainty ment of a term for years. The declaration of the estate (Co. Litt. 6 a ); “it doth qualify stated the original lease from the lessor to the general intendment of the premises; the defendant in error, for twenty-one years and the reason of this is, for that it is a maxim from March 1820, containing a covenant to of law, that every man's grant shall be tapay rent quarterly; and that, by indenture ex-ken by construction of law most forcible ecuted by the plaintiff and defendant, the de- against himself," (Co. Litt. 183, a.; see also fendant in error assigned to the plaintiff in Hale, 171; Stuckley v. Butler, Com. Dig. error, his executors, &c., the said indenture of Fait, E. 9). As these expressions, therefore, lease, and the demised premises, and all the occur in that part of the deed in which they estate, right, title and interest, term of years ought to be, if their object was merely to then to come and unexpired, property, claim, qualify and abridge the generality of the grantand demand of the defendant in error, by vir- ing part, it is highly probable that they were tue of the said indenture of lease, &c therein; intended to have that effect only; and some to have and to hold the said lease together instances were adduced by the learned counsel with the said premises by the same demise, for the plaintiff in error, where similar words and by the said assignment assigned to the occurring in the same part of the deed could plaintiff in error, his executors, administrators, not possibly have any other signification. For and assigns, during all the rest and remain-example, the assignment of a lease by way of der of the said term of twenty-one years, grant-mortgage, and the conveyance of an estate ed by the said indenture of lease then to come subject to a mortgage or incumbrance, to a and unexpired, subject nevertheless to the pay-second mortgagee, or to a purchaser, where it ment of the yearly rent, and the performance of is impossible that these words could constitute the covenants and agreements reserved and con- a covenant by the mortgagee to pay the rent tained in the said indenture of lease; and that the plaintiff in error accepted the said assignment, and entered. The declaration then assigned as a breach, the non-payment of rent due after the assignment, by reason whereof the defendant in error was obliged to pay the amount. The plaintiff in error pleaded several pleas, on which issue was joined and found against him; and one plea, viz. that before the rent became due he assigned over, to which plea there was a demurrer and joinder, on which judgment was given by the Court of Common Pleas for the defendant in error. The question in the case was, whether the plaintiff in error was liable to the defendant in error for non-payment of rent due after he had assigned over; and that depended upon the further question, whether the words "subject nevertheless to the payment of the yearly rent," &c., amounted to a covenant to pay the rent during the whole residue of the unexpired term. If they do, the judgment of the Court below ought to be affirmed; if they do in the one case, or by the second mortgagee The Property Lawyer, No. XXVI.-Title under the Limitations of Actions Act. 325 REQUIRE UNDER THE LIMITA- To the Editor of the Legal Observer. Sir, tion "What title may a purchaser require unThe great practical importance of the quesder the 3 & 4 W. 4, c. 27?" induces me to submit the following observations upon that point, for the consideration of your readers. persons the next twenty years, because the rights of by the act for at least that period. Now, Sir, entitled for sixty years are preserved I think it will be found that the statute does not preserve the right of persons entitled to fore upon this point I join issue with your corsue within sixty years for twenty years; there Michaelmas term, 1820. It was an action of WHAT TITLE MAY A PURCHASER assumpsit by the assignor to the assignee of a lease, who had accepted but not executed the assignment, for not repaying to the assignor the rent which he had been obliged to pay, after the assignee had assigned over. The deed contained similar words to those in this instrument. Lord Tenterden nonsuited the plaintiff on the trial, at the sittings before Michaelmas term, 1820. On a motion for a new trial, the Court confirmed his Lordship's decision by refusing a rule, on the ground that these were not words of agreement, but were merely descriptive of the obligations to which If I understand your correspondent, "A the assignee would be liable as between him and the lessor. It remains only to make some ob- Conveyancing Counsel," rightly, he is (or was) servations on the cases relied upon by the de-in accepting a twenty years' title, at least for of opinion, that a purchaser would not be safe fendant in error. That of Burnett v. Lynch, 5 B. & C. 589, proceeds upon the ground that during the continuance of the interest of the assignee, there is a duty on his part to pay the rent and perform the covenants. Bayley, J., in giving judgment, states, that the duty is commensurate with the time during which the assignee has an interest in the premises. This duty, we think, would arise from the mere relation between the parties, without any such words as those now under consideration; for the effect of the assignment is, that the lessee becomes a surety to the lessor for the assignee, who, as between himself and the lessor of the principal, is bound, whilst he is assignee, to pay the rent, and perform the covenants running with the estate; and the surety, after paying the debt, or discharging the obligation to which he is liable, has his remedy over against the principal. And he would also, in all probability, have the same remedy over against each subsequent assignee, in respect of breaches committed during the continuance of the interest of each; for the the lessee is, in effect, a surety for each of them to the lessor. The case of Chancellor v. Poole, 2 Doug. 767, was also mentioned, in which Lord Mansfield said, "that there was a covenant by the defendant for paying the rent in the deed poll, but it was with the lessee." There, however, the words of the instrument were very different; they were these, "the assignee paying the rent and performing the covenants, and indemnifying the lessee against the same;" which last words were incapable of being construed as qualifying the generality of the granting part, and could have no other effect than an agreement on the part of the assignee with the assignor. For these reasons we think that the judgment of the Court of Common Pleas ought to be reversed. Judgment reversed. Wolveridge v. Steward, 1 Cromp. & Mee. 665, respondent. The communication of your correspondent "Causidicus," contains a very concise and correct statement of the true construction of those sections of the act which he refers to, but he does not apply it to the question raised by your first correspondent: he however raises another question (viz.) whether a person whose right of entry is tolled, and the twenty years have expired on the 31st December, 1833, can bring any action at all till the 1st of January 1835." I think it will appear that he can; and indeed Causidicus's own letter appears to me to contain a solution of the supposed difficulty. As to your third correspondent, "A Conveyancing Attorney," I perfectly agree with him, that it will not be safe to accept a twenty years' title; but I cannot understand why thirty be considered a reasonable time for a title to years will be any safer, or why that period will be shewn; and I differ with this gentleman, if he thinks that by sec. 2. no real action may be maintained under sec. 37, but within twenty years after right accrued. Now, Sir, the wrongs that may be done to a right of freehold (3 Bla. Com. ch. 10) are remedied either by actual legal entry, or by action. The remedy by entry takes place only in cases where the original entry of the wrongdoer is unlawful, as in cases of abatement, inthen the legal owner is said to have a right of trusion, and disseisin (Co. Litt. 237, 238), for entry; but before the 3 & 4 W. 4. c. 27, this right of entry must have been executed during the life-time of the abator, intruder, or disseisor; for if the disseisor died seised of the inheritance, having had peaceable possession for five years (32 H. 8, c. 33), and it descended to his heir, the right of entry was said to be tolled Vide ante, pp. 56, 71, 200. See Mr. Brodie's Opinion, post, p. 330. 326 Title under the Limitations of Actions Acts. land. This summary remedy by entry, therefore, only lay in certain cases, and might, even in those cases, be taken away or barred as above mentioned, and then the party was driven to his action, which however, if he thought it more expedient, he might maintain, although he had a legal right of entry, Co. Litt. 57. Real actions are of two kinds; namely, 1. Droitural actions; 2. Possessory actions:the former touching the right of property, the latter the right of possession. Writs of Right, and writs in the nature of a Writ of Right, are of the first, and Writs of Entry and Writs of Assize are of the second species. 1. As to Pussessory Actions. When the party entitled to the possession of a freehold, had no right of entry, or was deprived of his right of entry by any of the circumstances above mentioned, (except by discontinuance, for which, and for some species of deforcement there are special writs, F. N. B. 147), or thought it more expedient to admit the tenant to have gained a tortious freehold, he was (and is now, if his right accrued before and he had no right of entry, or his right of entry had been tolled or taken away on or before the 31st Dec. 1833-3 & 4 W. 4, c. 27) remediable by writ of entry, or other possessory action applicable to his case. But by 32 H. 8, c. 2, writs of entry, and all possessory actions on the seisin of an ancestor, must be brought within fifty years after the supposed disseisin, and on the claimant's own seisin within thirty years (§ 3 & 4). 2. As to Droitural Actions. When a party having a right of freehold is defeated in any possessory action, or when his right of entry is defeated by discontinuance, (in which case, as before stated, a Writ of Entry will not lie), or is barred by the Statute of Limitations (32 H. 8, c. 2) from maintaining a possessory action, he is remediable by a Writ of Right, or such correspondent writs as are in the nature of a Writ of Right; as, for instance, by action of formedon, given by statute De Donis, or West. 2. 13 Edw. 1. c. 1; in case of discontinuance, the writ of Quod ei Deforceat, given by the statute West. 2. 13 Edw. 1. c. 4, to the owners of any particular estate, as for life, in dower by the curtesy, or in fee tail, who might be barred of the right of possession by a recovery had against them through their default or nonappearance in a possessory action, in which events they were absolutely without any remedy at the common law; for a Writ of Right does not lie for any but such as claim to be tenants in fee-simple (F. N. B. 1—6); but a recovery on the merits, in a possessory action, is in such cases final. a 5 Bla. Com. c. 21. A claimant in fee simple, however, may have Writ of Right, even after the right of possession is barred by a recovery upon the merits in a possessory action, or by the Statute of Li mitations. But by 32 H. 8. c. 2, Writs of Right on the seisin of an ancestor, inust be sued out within sixty years (§ 2 and 3), and on the claimant's own seisin within thirty years (§ 4). These actions, however, have long since fallen into disuse, the title to lands being now usually tried in actions of ejectment; but they are nevertheless even now occasionally resorted to; as, for instance, after failure in an action of ejectment (Chatfield v. Souter, 3 Bing. 167; Bowyer v. Bowyer, 2 Dowl. Pr. Rep. 207); or where that species of action will not lie, for actions of ejectment cannot be maintained where the lessor of the plaintiff has not a legal right of entry, and in some cases it is necessary to make an actual entry before ejectment can be brought (Compere v. Hicks, 7 T. R.433, 727); and as an action of ejectment is founded on a right of entry in the party claiming title, i follows that if the defendant can shew such right has been tolled or taken away by any descent, discontinuance, fine and nonclaim, or by the statute of limitations, as above men tioned, it will be a sufficient defence to the sion for twenty years (except in cases which fall within the clause of exceptions in 21 Jac 1. c. 16) operates as a descent, or a discontinu ance, which tolls entry (Stokes v. Berry, Salk 421); but the party may then maintain hi Writ of Entry or Writ of Right. These actions, however, decide nothing with respect to the right of property, for if the dispossessor has any legal claim, he may after-action; and an uninterrupted adverse posses wards exert it, notwithstanding a recovery against him in these possessory actions (3 Bla. Com. 180. Mirr. c. 4, § 24)," for as one man may have the possession, and another the right of possession, which is recovered by these possessory actions; so one man may have the right of possession, and so not be liable to Having premised so much of the old law a eviction by any possessory action, and another seemed necessary to a clear understanding o may have the right of property, which cannot the new statute, 3 & 4 W. 4. c. 27, I now pro be otherwise asserted than by the great and ceed to the enquiry, what alteration has bee final remedy of a Writ of Right, or such cor-made in the periods of limitation? and what i respondent writs as are in the nature of a Writ the effect of the provisoes made for the tempo of Right." 3 Bla. Com. 191. rary preservation of the abolished real action. Title under the Limitations of Actions Act. for the purpose of doing justice to those persons whose rights shall have accrued before the act came into operation, and who, in the absence of such provisoes, would be without remedy. Actions of ejectment, it has already been shewn, can only be maintained where the claimant has a legal right of entry, whereas droitu ral and possessory actions may be maintained also where the claimant has no right of entry. The new statute, which relates chiefly to these two species of action, abolishing the one, and applying the other to all cases after the 31st Dec. 1834, may therefore be conveniently consider ed under these two heads; viz. first, as to persons having a right of entry; and, secondly, as to persons not having a right of entry. 1. And first, as to persons having a right of entry. It is enacted by sec. 2, that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued. 327 fore, unless such persons had commenced their real actions before the 31st December 1834, they would, in the absence of any express provision, be without remedy. It is therefore provided by s. 37, "that when on the said 31st day of December, 1834, any person who shall not have a right of entry to any land shall be entitled to maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought at any time before the 1st June, 1835, in case the same might have been brought if this act had not been made, notwithstanding the period hereinbefore limited. shall have expired." This proviso, therefore, excepts the rights of persons not having a right of entry from the operation of sections 2 and 36, until the 1st June, 1835, until which day, the actions which they would be entitled to maintain if this act had not been made, may be brought, notwithstanding the twenty years shall have expired; that is, such actions may be brought, if the claimant is not barred by the old statutes of limitation in force before this act passed. person whose right of entry shall have been taken away by any descent cast, discontinuauce or warranty, yet such actions must be brought "within the period during which, by virtue of the provisions of this act, an entry might have been made upon the same land by the person bringing such writ or action, if his right of entry had not been taken away."Sec. 38. Section 38, therefore, takes off the restraint imposed upon sec. 2 by sec. 37; and after 1st June, 1835, all actions (sec. 2), whether the claimant has a right of entry or not, must be brought within twenty years after right accrued. Now, did this action stand alone, it would But after the 1st June 1835, although the said probably limit all real and mixed actions what-actions are still preserved in the case of any ever, whether the claimant had a right of entry or not, to twenty years; but, as sec. 37 & 38 provide for the cases of persons who have not a right of entry, or whose right of entry has been tolled or taken away by descent cast, discontinuance, or warranty, it would seem to be the intention of the legislature that sec. 2 should only extend to persons having a right of entry; and if so, the several sections are rendered consistent with one another, the words ** bring an action" in sec. 2, being construed to apply to the same persons as the preceding words," to make an entry or distress," viz. to persons having a right of entry only, and not to persons not having a right of entry, who are provided for by sects. 36 and 38;-this sec. (s. 2), which comes into force after the 31st Dec. 1833, and is both prospective and retrospective in its operation, limits all actions, whether droitural or possessory, where the claimant has a right of entry, to twenty years after that right accrued. The real actions mentioned in sec. 36, therefore, may be brought by a person whose right of entry shall have been taken away by descent cast, discontinuance, or warranty, at any time within twenty years after right accrued; but as no descent cast, discontinuance, or warranty, which may happen or be made after the 31st Dec. 1833, can toll entry, it follows that all And as the chief object of the statute is ulti-real and mixed actions (except those excepted mately to limit all actions for the recovery of in sec. 36) will be totally abolished after the land to twenty years, it is provided by sec. 39, expiration of twenty years from the 31st Dec. "that no descent cast, discontinuance, or warranty, which may happen or be made after the 31st December 1833, shall toll or defeat any right of entry," consequently all cases are pervided for by sects. 2 and 39, except those of persons who had no right of entry, or whose right of entry had been tolled or defeated on or before the 31st December, 1833. This brings us to the second division, viz. 2. As to persons not having a right of entry. In these cases, as already stated, the claimant cannot maintain ejectment, but is driven to his real action, which he may bring until 31st Dec. 1834, after which period all real and mixed actions (except Ejectment, Writ of Dower, and Quare Impedit) are by sec. 36 abolished; but persons who had no right of entry could not maintain ejectment; and there 1833. The result of these several sections then may be shortly stated thus: As to persons having a right of entry :— 1. That after the 31st of December, 1833, any person having a right of entry, must enter or bring his action (sec. 2) or suit (sec. 24) within twenty years after right accrued (sec. 2). 2. That he may bring any real action applicable to his case, at any time before the 31st of December, 1834, (sect. 36;) but such action must be brought within twenty years after right accrued (sec. 2). As to persons not having a right of entry :1. That any person not having a right of entry, may bring any real action applicable to |