LIMITATION OF ACTIONS. (Hansard, 14 June 1833)

§ Lord Lyndhurst
said, that he had been requested to slate to their Lordships the nature and objects of this Bill, and the principle on which it was founded; and he thought that when a Bill of this description or any other, introducing material alterations into the law of the country, came from the other House of Parliament, it was the duty of some noble Lord to state to their Lordships the nature and object of the Bill, and the principle which had been adopted for its basis. The title of this Bill was "An Act for the Limitations of Actions and Suits relating to Real Property, and for simplifying the Remedies for trying the Rights thereto." This Bill was founded on a principle that had long been recognized in the law of England, which was, that a long period of adverse possession should give an indefeasible right to the property. That principle itself owed its origin to the necessity, or at least the convenience, of quieting titles to property. The rule of law was, "leges vigilantibus non dormientibus subvenient," and that rule arose from the circumstance that the evidence of title to property, however good that title was, might be lost; that the witnesses required to prove it might die; and other events happen, which but for the intervention of this rule might leave a lawful possessor at the mercy of a fraudulent claimant. From the earliest period that rule had been acted on in this country, but it had not been acted on according to any precise system, and for that reason it was necessary to introduce this Bill. In the early periods of the history of this country the limitation was taken from stated eras, as from the return of King John from Ireland, from the journey of King Henry to Normandy, and from the coronation of King Richard 1st. The length of the limitation varied, of course, with the change of period from which it was dated, and the law, therefore, at last adopted another rule, which was that of allowing only a certain number of years to be a limitation. He should not go through the various Acts which had been passed upon this subject; it would be sufficient 791 for him to notice two of them. The first was an Act passed in the reign of James 1st, and the next in that of Henry 8th. By the Statute passed in the reign of James 1st it was enacted, that no entry on lands should be permitted after an adverse possession of twenty years; and as no entry could be made, no action of ejectment could be maintained; and that was then the ordinary mode of trying titles to land, so that no possessor of lands could have his title to them impeached in that form of proceeding after that lapse of time. Possession for twenty years was, therefore, a title to lands, but not an absolute title, for, according to the limitations contained in the Statute of Henry 8th, any real action might be tried, and the party turned out of possession after that time. This limited remedy of a real action, or an action upon a claim of right, and not of mere possession, was only applicable in certain cases. It was not applicable where land was held under wills, or by the provisions of marriage settlements, nor to cases where, in the language of the land, there had been no seisin; it was not applicable to cases of dower, of escheat, or of waste, and to a variety of other cases which it was not necessary for him to particularise; nor did it apply to cases of equitable title, and therefore their Lordships would perceive the incongruity of the law as it now stood. Besides this, it was not applicable to cases of limitations by fines. If a party who had gained a wrongful possession of lands levied a fine on these lands, after a non-claim of five years subsequent to the levying of the fine, his title was complete. The system of levying fines was enacted in the reign of Henry 7th, in consequence of the frequent changes in the possession of estates during the wars of York and Lancaster. This short period of possession which was to constitute a limitation, proceeded on the fiction of laws that fines were so notorious a mode of proceeding, that they might be considered a notice to all the parties interested to come forward and put in their claims; but though such was the fiction of the law, it was well known—at least in the present day—that the fact was not so in practice. He had stated these things to their Lordships in order to show that it was a principle of the English law to quiet titles, but that the operation of that principle was at this moment defective. The remedies which the law gave 792 for the recovery of estates or for defending the possession of them, were at variance among themselves and inconsistent with each other, and they did not comprehend all persons and all descriptions of property. This Bill was introduced to remedy that defect, by laying down one uniform and consistent rule. That object was to be effected by legislating in this way, by providing that after a certain time the party holding adversely should thereby have an indefeasible title to the property. There were several advantages in adopting such a rule. The first was, that it would quiet the title to lands; the next was—which was not an immaterial consideration—that it, would give security in possession, and, consequently, ease in letting, and facility in conveying, property. The material question, then, was that which had engaged the anxious attention of the Common Law Commissioners—what period of adverse possession should render the right of the possessor indefeasible? They had at last determined that a period of twenty years should be adopted, and this Bill was framed on that rule. They recommended that at the end of that time the adverse possessor of land should be considered to have acquired an indefeasible title, and after that time he should not be liable by any process of law to be expelled from his property. He thought that the Commissioners had come to a right conclusion in the limitation they recommended to be adopted. They had for a long time been divided in their choice between a period of twenty and of thirty years, and they had finally chosen the former. In the first place twenty years was the period fixed by the Statute of James as that after which no action of ejectment should be brought. Now, within the operation of the action by ejectment was comprehended the great majority of titles in the country for the proceeding by real action was limited to a certain number of cases only. If twenty years adverse possession was sufficient in the time of James 1st to defeat an action of ejectment, he thought, considering the increased facility of communication, and the increased intelligence of the country, their Lordships would be of opinion that that period would properly be applicable now to all the modes of trying titles in the country. Another consideration which made the Commissioners adopt the period of twenty years 793 was, that that was the term admitted as a limitation in Courts of Equity. By the rules of those Courts no suit for lands could be instituted there after the expiration of twenty years, except in cases of fraud, and in others which it was not necessary for him particularly to advert to; and as so large a portion of the property of the country was subject to trusts, and liable to the jurisdiction of the Courts of Equity, it was convenient that the same rules should be applicable in similar circumstances in those Courts and in Courts of Law. He had already stated among the advantages contemplated by the present Bill that of quieting titles. Another advantage connected with that was this: A person selling an estate was obliged to make out a good title for sixty years. If there had been many changes of possession during that time, the abstract would be most voluminous, and the expense consequently enormous, and all that expense might probably arise from what had taken place in the earlier period of the term. By the change now proposed, conveyances of property would be rendered considerably cheaper—an object which, in a commercial country like this, it was most desirable to attain. Another beneficial consequence of the measure would be, that all trials of title to lands would in future be by actions of ejectment. That form of action was, of all others relating to the titles to land, the most simple and the least expensive. The old forms used in real actions were antiquated, obsolete, technical, and little understood. These forms would now be abolished. By turning to page 14 of the Bill their Lordships would see, that the following processes were abolished. 'Writ' of right patent, writ of right quiadominus remisit curiam, writ of right in capite, writ of right in London, writ of right close, writ of right de rationabile parte, writ of right of advowson, writ of right upon disclaimer, writ de rationabilibus divisis, writ of right of ward, writ de consuetudinibus et servitiis, writ of cessavit, writ of escheat, writ of quojure, writ of secta ad molendinum, writ de essendo quietum de theolonio; He had read about one-fourth only of the writs to be abolished. He need not enter further into details. He would only add, that there were certain cases in which claimants, labouring under disabilities to sue, such as infancy, Iunacy, coverture, etc. 794 would still have their rights reserved to them, ten years additional being allowed them before an adverse possession was held to bar their claims. There was one other subject on which it was now necessary that he should say a word—he meant that of claims in cases of advowsons. The limitation he had mentioned was not applicable to the case of this important and valuable property. Advowsons could only be contested in cases of vacancy. Now, a vacancy might not occur within a period of twenty years. For the purpose of giving a reasonable limitation, another period was adopted with regard to advowsons. That period was a term of three lives, or three incumbrances, provided that they extended to sixty years, and if not, then a period of sixty years; but in no case was the limitation to exceed 100 years, although the three lives, or three incumbrances might go beyond that term. Having thus made their Lordships acquainted with the nature and object of the Bill, he should not say anything about the details of it, as he thought that it would be better to discuss the principle of the Bill now, and the details might be considered at a future time in the Committee.

§ Lord Wynford
suggested, that the House should now merely go into Committee pro forma, and the discussion upon the details be taken on Thursday next.

§ The Earl of Eldon
was anxious to have time to look into the Bill before the House went into a Committee. He was ready to admit, that it might be desirable to adopt the same period of limitation in Courts of Law and Equity, but he thought that some provision should be made for those cases in which the twenty years' adverse possession was now about to expire; and might expire before the parties could have the opportunity of putting in their claims so as to bar the limitation. In the desire to alter the law, these things did not seem to be sufficiently considered; and when he looked to the measures then before that and the other House of Parliament, having for their object most extensive alterations in the existing laws, it appeared to him that professional men, if those measures were carried, would have to begin their legal studies over again. So numerous were the alterations contemplated with respect to landed property, that it would be soon necessary, when a gentle- 795 man went to amuse himself on his estate in the country, to take an expert solicitor and a clever barrister with him to inspect his title-deeds, and ascertain the validity of his rights.

The Lord Chancellor
admitted the difficulty started by the noble and learned Earl, but said, that that must always be the case when Statutes of Limitation were introduced. He did not see how that difficulty could be avoided, for if time were given before this Bill came into operation, the effect would be to bring a number of worthless and unfounded claims into the Courts, brought there for the sole purpose of avoiding the operation of the Bill. This evil had been felt in passing Lord Tenterden's Bill, but there was no attempt made to avoid it, and indeed it was distinctly stated by Mr. Baron Hullock, at York, that the Bill was intended to have the effect of inducing men to bring actions at once. He really could not agree with what had been asserted by the noble and learned Lord (Lord Eldon), that if these Bills were allowed to pass, every title in the country would be altered. The Fines and Recoveries Bill, he had no doubt would make conveyancing much less tedious, and much less expensive. On another Bill, that for altering the law relative to debtor and creditor, to which the noble and learned Lord had alluded, he confessed he had strong opinions. The present law he had long considered as at once unjust and insufficient, and the Bill which had been brought into the other House, he had great hopes would materially improve it, in vindication of the Government, he thought it right to state, that the subject had been opened by him more than a year ago, when he presented the Report of the Law Commissioners to their Lordships. They certainly had been in no great hurry since in their proceedings; but with interests so varied and so complicated to deal with, it was most desirable they should be wary in their conduct. This was the reason why the Bill was not to be pressed this Session—that the community at large might have ample time to discuss its provisions; for though a vast deal of information was already before the public from the Law Commissioners, still the mere existence of a document was not sufficient to command attention to the subject of it. He was quite sure, however, alter what had now passed there, and what occurred the previous evening in 796 the other House, that a matter so important to all parties, creditors as well as debtors, laymen as well as lawyers, would, between this and the next Session, receive from the public the most ample and mature consideration. He found, from a communication just made to him, that his hon. and learned friend the Solicitor General did state in the other House of Parliament an intention of passing the Bill he had just alluded to, during the course of the present Session. It was the intention of his hon. and learned friend, he had understood, to open the Bill with the view of not passing it during the present Session, but as it was the wish of several hon. Members of the other House that the measure should pass, his hon. and learned friend had yielded to their solicitations, and had opened the Bill as now stated. His (the Lord Chancellor's) opinion, however, still was, that it would have been a better course to have introduced the Bill, and let it stand over till another Session.

§ The Earl of Eldon
again referred to the several measures before Parliament for the alteration of the laws relating to real property. He objected especially to the Bill for altering the law of curtesy, and to the Bill for rendering real property assets in all cases for the payment of simple contract creditors; measures which he conceived, if carried into effect, would produce alterations more injurious, and certainly more extensive, than those who proposed the measures had any idea of.

The Lord Chancellor
was sorry to hear that his noble and learned friend's (Lord Eldon) objections to the Bill for rendering real estates assets for the payment of simple contract debts continued unabated. As their Lordships might probably, conceive, however, that they had had sufficient discussion on the laws relating to real property for one evening, he had no objection to let that Bill stand over until Thursday night next. At a more convenient time he should also be happy to meet his noble and learned friend on the subject of the proposed alteration as to the law of curtesy. He should only say now, that he believed his noble friend's apprehensions as to the evils which might result from the proposed alterations were greatly exaggerated.

§ Lord Lyndhurst
said, he had a striking exemplification of the probable effects of the Bill rendering real property assets for the payment of debts in a case which came 797 before him that day. A creditor filed a bill in equity to recover a debt of 64l., charged upon a real estate, and the costs of the suit amounted to 1,200l. Now it was precisely the same machinery which had operated this result with which the proposed law was to be carried into effort; and, in the opinion of very competent persons, unless some new machinery was devised, if the Legislature passed that Bill, it would inflict a great curse upon the country.