Martindale's UnClaimed Money, Lands and Estates Manual.  CHAPTER 1.
ENGLISH LAW OF LIMITATIONS.


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Devoted to the Interests of all who are in search of Unclaimed Money,
Lands or Estates---Next of Kin---Heirs at Law---Legatees, Etc. Etc.
Etc. by J. B. Martindale

Attorney and Counselor at Law.

[Author of "Martindale's United States Law Directory," "The Commercial
and Legal Gude," and late Editor of the "American Law Magazine."]
Chicago:  J. B. Martindale.

Entered according to Act of Congress, in the year 1884, by J. B.
Martindale, in the office of the Librarian of Congress, at Washington
D. C.

Press of Ottaway Printing Co., Chicago.

pages 9-13

CHAPTER 1. ENGLISH LAW OF LIMITATIONS.

As the recovery of real estate is altogether barred if an action is
not brought within a specified time, we have thought it advisable to
give briefly the present existing law of England on the subject of
Limitation of actions' as it effects real estate.

It is not necessary however for present purposes to discuss or do any
thing more than briefly allude to the various ancient Statutes of
Limitations, which date from the year 1540, and most of which, if not
all, have been repealed either actually or by implication. No case can
now arise under them, and they are of interest to the antiquary rather
than to the lawyer. Of existing interest there are two groups of facts
and phases of Law to be considered. First, the Law as it stood
previously to the 1st of January, 1879; and second, the Law as it now
stands. The old Act, as will be seen, has now no force or operation
whatever as to such parts of it, as are repealed by the new one. In
enacting these and other limitation measures, the Legislature has
acted on the principle that, where any person should fortuitously find
himself in possession Of realty to which some other person is
rightfully entitled, such other person should, in the interest of the
public, be placed under some restrictions as to the limit of time for
his claim to be properly asserted. To divest any one of what he has
had for many years, and has made provision for enjoying in perpetuity,
would probably cause more harm in the end than to permit an ignorant
or negligent claimant to agitate, and carry out long dormant schemes
for an indefinite period.

To dispose first of claims by the Crown. By 9 Geo. III., cap. 16
(passed in 1769), and its amending Statutes, such claims and rights in
any lands are now, and have since that date, been barred after the
lapse of sixty years. Next, with regard to all other persons. Under
the Law as it stood previous to the 1st of January, 1879, the Statute
3 & 4 Will. IV., cap. 27 (passed in 1832), absolutely prevented any
one from bringing an action for the recovery of land, except within
twenty years next after the time at, which the right to bring such an
action first accrued to him, or to any ancestor or other person
through whom his claim might be founded or arise. This Act contained
the very reasonable proviso that with respect to Estates in reversion
or remainder, or other future Estates, the right before alluded to
should be deemed to have first accrued at the time when any such
Estate became an Estate in possession. That is to say, a person
entitled to succeed to the possession of an Estate on the death of
another person who held it for life, was allowed. twenty years to
prosecute his claim from the date of the death of the life possessor,
on whose death he would become entitled, and not before, to, himself
enjoy an unfettered interest in the property. However, under Section
14 of that Act, a written acknowledgment of the title of the person
entitled, given to him or his agent, and signed by the person in
possession, extended the time of claim to twenty years from the date
of such acknowledgment. With respect to disabilities, the Act
provided, that if, when the right to bring such an action first
accrued, the person entitled should be under disability to sue, by
reason of infancy, coverture (if a woman), lunacy, or absence beyond
the seas, ten years were allowed from the time when the person
entitled should have ceased to be under such disability, or should
have died, notwithstanding that the period of twenty years before
mentioned should have then expired, but with the definite proviso that
the whole period do not, including the time of disability exceed forty
years. As an example, we may take a case of a right first accruing in
1840. The land would have been forfeited twenty years after, or in
1860. Supposing the person entitled had been under a disability, such
as absence beyond seas, when his right first accrued (1840),  a
further period of ten years was granted, provided the whole time did
not exceed forty years, from the date of his having ceased to be
beyond seas i. e., had he returned in 1855 his right would have
disappeared ten years after that date, or in 1865, but had he returned
in 1875 it would have been forfeited under that Law in 1880, and not
1885, when the whole period would have exceeded forty years. As a
matter of fact, however, the right to recover would actually have been
lost on the 1st of January, 1879, when the new Act hereinafter alluded
to became Law. Moreover, no further time was allowed on account of the
disability of any other person than the one to whom the right of
action first accrued. By that Act, also, a mortgagee in possession was
assured of a quiet possessory title at the expiration )f twenty years
next after he entered or gave a written acknowledgment such as that
before alluded to, of the mortgagor's title or right to redeem. Am
illustration of the Law on this point, as it relates to mortgagees,
may )e of use. Let us suppose that A. has mortgaged his freehold
property to B for a certain sum,  at a fixed rate of interest. The
interest is not paid, bud B., instead of exercising the power of sale
he no doubt possesses under he mortgage deed, enters into possession,
and pays himself his interest out if the rents of the property. As
soon as he has been in possession twenty ,ears under the Law then in
force (or twelve years now), the right of A. to redeem and get his
property back again becomes absolutely barred in the absence of the
undertaking or acknowledgment before alluded to. As to an Advowson
which, it maybe remarked, is a perpetual right of presentation to an
ecclesiastical benefice-no action could be brought to enforce a right
of presentation after the happening of three successive incumbencies,
or sixty years (whichever should last happen), or 100 years in all, in
case are remarkably long-lived ecclesiastics should happen to have
been in possession for the whole century. Twenty years, too, was the
limit for the money secured by mortgage, rents-service, or rents-
charge and or by judgment, or otherwise charged on land and legacies,
in the absence of the statutory acknowledgment to which we have
already alluded. .i. every case where any person who could have
brought an action or suit for the recovery of the interests alluded to
failed to do so, his right was altogether extinguished. For all
practical purposes this is an epitome of the Law as it stood prior to
the 1st of January, 1879. The Real Property Limitation Act of 1874,
which took effect from the 1st of January, 1879, made very important
changes in the Law. Such changes, however, may be readily grasped by
those who have carefully perused the following remarks, as, with one
small exception, they are merely an alteration of figures in certain
cases. The period of twelve years is substituted for twenty, as the
limit of time for ringing an action for the recovery of land, or all
corporeal hereditaments, and most tithes and rent or other periodical
payments charged on land, from any person under the circumstances
mentioned in the former Act and before alluded to. A good number of
possessors with no title to their holdings other than the fact that
they were in possession of them, must have blessed the passing of an
Act that secured them the property after they had been only twelve
years in occupation of it. Thus any one who had taken unto himself a
property in the year 1867, was assured, under the new Statute, in the
quiet enjoyment of it, by the corresponding day of the year 1879,
instead of 1887, as would have been the case, if the Act had not
relieved him. The disability clause is also reduced to twelve years,
with six years grace, from death, or ceasing of disability ' whichever
shall first happen, provided that the whole period does not exceed
thirty years. It may be here conveniently remarked that "absence
beyond seas" ceases altogether to be a disability under the new Act a
f act of some importance to foreigners. These are the brief, but
important alterations the Law made by -the Statute of 1879 which has
been rather more than five years in operation.

There are certain other Statutes and many cases affecting the
limitation of time for recovery of incorporeal hereditaments, such as
way and water leaves and other rights, which, as they are hardly
likely to be of any particular interest to our readers, we do not
propose to discuss.

Generally it may be stated, that in no case has a Claimant any chance
of ousting a possessor, unless he has the amplest proofs that those in
possession-who may be there by an agent, if not personally-are there
in consequence of concealed fraud, or as Trustees for such Claimant.
It is seldom, if ever, that these very difficult facts have been
proven to the satisfaction of a Court of Law. The foregoing remarks do
not, however, apply to personal property, i. e., cash, or securities
for cash in Government Stocks, the Court of Chancery, and in most
public Companies, as such investments are held by the Companies as
Trustees for their Shareholders, or Stockholders as the case may be,
and can always be recovered, together with the accrued dividends.
Legacies bequeathed by Testators, and which remain unclaimed, are in
the same position as the Stocks before mentioned, as also are shares
under intestacies.

All realty must be conveyed by a deed signed and sealed by the seller,
which is delivered to the buyer as evidence of his title; but it is a
matter of considerable difficulty when a person dies intestate, or
makes no allusion in his Will as to his realty, to ascertain when and
how it has been disposed of; for it is only by application to those
immediately concerned, that the actual ownership of land can be
discovered, unless, however, it is situated in the following two
counties or one district, in which disposition of land and similar
property, whether by Deed or Will, must be registered.

These counties and this district are provided with Registry Offices
(established in the years mentioned), viz., Middlesex in 1708, West
Riding of York in 1704, East Riding of New York in 1707 (including the
town and county of Kingston-upon-Hull), North Riding of York in 1737.
The great district of the Fens known as the Bedford Level, which was
reclaimed some time since, has a special Act, vesting certain powers
in the freeholder, and among others, that of requiring a registration
similar to what is already in force in the counties, etc , above
mentioned

The foregoing remarks comprise all the instances in which registration
is compulsory for perfecting a title. In 1862 an Act was passed..
entitled the "Land Registry Act" (25 and 26 Vic., cap. 53), making
provision for an optional official investigation, by a Commissioner or
Registrar appointed by the Government, of any title an owner might
desire to have brought under the provisions of the Act. Oil a title
being found to be good, a certificate was delivered to the owner,
which formed his evidence that he was duly and properly in possession.
However, after two or three decisions of the Judges, that the evidence
oil which the certificate was obtained was open to resifting at any
time, the Statute became unworkable; so much so, indeed, that Lord St.
Leonard, perhaps the most skillful conveyancer who has ever sat on the
Woolsack, stated that the Act in question made a title " absolutely
indefeasible except in the event of any flaw being found in it," a
piece of sarcasm which completely finished its career as a practical
reform.

In 1875 the "Land Titles and Transfer Act " repealed the foregoing
Statute, and established an optional Land Registry for England and
Wales (commencing 1st January, 1876), on a basis somewhat extended
beyond the limits of its predecessor. A Registrar of Titles and ail
Assistant Registrar have been appointed, with a large staff of clerks,
both .professional and otherwise. These gentlemen act very much in the
same way as if they were concerned for purchasers of property, the
titles of which owners bring before them. A series of General Rules
and Orders regulate the practice, and a strict investigation is made.
If the title be found good, a certificate of "absolute title " is
delivered. If the owner has a possessory title only, a certificate
stating such to be the case is furnished him. No case has yet arisen
in which a certificate of either of these kinds has been taken
exception to. The Act contains a variety of clauses as to registration
of mortgages and leases of land subject to its provisions which, being
of a technical nature ' it is unnecessary for us to note here. The
principal facts are as stated..  As a reform and a general benefit,
however, it has wholly failed, and almost as signally so as to its
predecessor. Lawyers, for obvious reasons, do not advise the adoption
of its provisions, and owners are shy of it because it does them no
immediate good, and takes heavy fees out of their pockets without any
immediate benefit. Those with good titles do not want them made
better, and such as have bad ones do not want it to be known that they
are so. A man who contemplates mortgaging his land-and two-thirds of
the land in England and Wales is mortgaged in some manner does not
wish to place himself in such a position that the fact may become
known. This is a, practical detail the framers of the Act overlooked
altogether. Not one title in a thousand is registered under its
clauses, which are, be it remembered, merely optional. The Statute is
at present, of chief, if not of only, advantage to the officials who
draw large salaries for administering it; ut it is to be hoped that an
alteration will take place in the Legislation ) as to render the
registration of mortgages, and conveyances of land, compulsory, as in
France where it has worked smoothly for many years past. Such an
alteration would save much useless litigation and great expense,
besides conferring on the possessor ail absolute and perfect title. .
person may also dispose of his personal Estate by deed of gift, for
which there are no Registry Offices. It is by no means rare to find an
aged man giving both realty and personalty to his issue or to a
stranger to avoid paying the Government duties on his decease. In many
instances, therefore, as has been shown, it is next to impossible to
discover. the actual ownership of property, whether real or personal,
without knowledge obtained from parties able to disclose it. If
therefore, any person believes himself entitled to property so
disposed of, he would have to commence Proceedings against the person
in possession, who, after giving him notice that he has a perfect
title, would produce the deed properly verified to the Court; and, if
it is in due and proper form, the person bringing the action would be
condemned to pay all the costs of it, as the burden ~f proof in this
as in all other cases, rests with the person seeking relief.  -De
Barnardy's Unclaimed Money Register.