C.A. 1900. GLENNY V. legal lease: The Mayor, &c., of Timaru v. Hoare(1); nor is there a tenancy between the landlord and the cestui que trust of the tenant: Ramage v. Womack(2); Doe d. Counsell v. RATHBONE. Caperton(3); Doe d. Milburn v. Edgar(4). Occupation without colour of title extends only to the land actually occupied ; but where there is colour of title it is coextensive with the premises as described in the document under which the occupier claims: Angell on Limitations(5); Hall v. Law(6); Des Barres v. Shey(7). The payment of rates is of importance: Bank of Victoria v. Forbes (8); Ewing v. Burnet(9); Angell on Limitations(10). The plaintiff must show an entry before the statute commences to run. He only came in by an equitable title. The question is whether there is evidence of an entry, or of a fact from which an entry will be presumed. Davern was a trustee for the plaintiff of whatever he had. If the assignee of an equitable interest in fee is in a different position from his assignor, and could set up the Statute of Limitations, the same rule must apply to the assignee of an equitable lease. There can be no difference arising from the magnitude of the estate. In Drummond v. Sant(11) Sant was the assignee of an equitable lease. The facts appear fully in the Law Times report(12). It is admitted that the actual point in the case has not been determined, but the case set up on account of plaintiff being an assignee falls to the ground, as in both Drummond v. Sant(11) and Warren v. Murray(13) there were assignThe case of a purchaser entering is not dealt with, at all by the statute. There is in such a case no right of entry in any person. The position of a vendee who enters is much discussed in Smith's Leading Cases(14). The possession in this case is consistent with the mutual relations of the parties, as in the case of trustee and cestui que trust. ments. [WILLIAMS, J.-When the statute was passed, "right of ' entry meant a legal right of entry. Had, then, Daniel a right of entry on Davern's death ?] C.A. 1900. GLENNY V. The effect of Drummond v. Sant(1) and Warren v. Murray(2) RATHBONE. is to read "right of entry" as "right of entry which would "not be restrained in equity." A vendor's relation to his purchaser is the same as that of a bare trustee to his cestui que trust. A vesting order will be made under the Trustee Act: Daniel's Chancery Practice(3); Murphy v. Vincent(4). Bell, in reply: [The Court intimated that it considered there was sufficient evidence of possession from May, 1873.] In Drummond v. Sant(1) and Warren v. Murray (2) there were reversions. The right set up by defendant is under a chamber instrument. By his negligence he allowed the statute to run. There was no trust as far as plaintiff was concerned. Plaintiff was tenant at will to Davern, and can bar Davern under section 7, and therefore he can bar his trustee. STOUT, C.J.: Cur. adv. vult. [After shortly stating the facts, His Honour proceeded as follows.] 66 There is a contest as to whether the defendant had "actual personal notice affecting him with fraud" of the prior sale to Davern when he made his purchase. That branch of the case can, if necessary, be discussed later. The main question is whether, on the facts I have stated, the plaintiff has by his possession acquired a title by virtue of the provisions of the 3 & 4 Will. IV., c. 27. The learned Judge in the Court below, following the judgments in Drummond v. Sant(5) and Warren v. Murray(6), has held that this statute does not come to the plaintiff's aid. It will be necessary to refer at some length to at least four cases decided on the meaning of the statute in which there is a similarity in the circumstances to this case. (1) L.R. 6 Q.B. 763. (2) [1894] 2 Q.B. 648. (3) 6th ed. 2095, (4) 40 L.J. Ch. 378. (5) L.R. 6 Q.B. 763; 41 L.J. Q.B. 21. C.A. 1900. GLENNY V. The case of Doe d. Stanway v. Rock(1) was decided in 1842. The facts were briefly as follows: Foley and Scott held certain lands in Wednesbury, and agreed to sell them to RATHBONE Woolrick. He does not seem to have paid the purchasemoney, but he entered into possession under his agreement in 1816. Shambles were erected on the land, and he drew the rents. In 1817 he sold his interest-not by way of subsale, but by way of assignment-to one Butler, who paid him £100 for his interest. It is said that Butler also paid Foley and Scott the purchase-money that Woolrick had agreed to pay them. Woolrick, with Butler's assent, continued in possession till his death in 1822. He was buried on the 8th of January, 1822. He devised all his real and personal estate to his wife, and she continued in possession, drawing the rents till her death in 1837. She devised the property to her children by a former husband named Rock, and the defendant, one of these children, continued to receive the rents of the premises. In 1836 Butler died, and he devised to the lessor of the plaintiff his interest in the premises. The lessor of the plaintiff had conveyed to him all the interest. of the original vendors, Foley and Scott. On the 8th of January, 1842, twenty years after the burial of Woolrick, this action of ejectment was commenced. The question was, could the plaintiff recover? and it was held that he could not. There are several reports of the case, one at Nisi Prius in Carrington and Marshman (2) and another in the Court of Common Pleas in 4 Manning and Grainger(3). Mr. Justice Patteson held that the case did not come within the exception of the 7th section, and this after consulting Mr. Justice Cresswell. The Court of Common Pleas held that the plaintiff could not recover, Tindal, C.J., saying, "In order to constitute a tenancy at will something must be done by the "lessor. It appears to me that it was properly left by the "learned Judge to the jury to say whether a tenancy at will "had been created between the lords of the manor and Mrs. Woolrick, that being the only fact on which there could 66 "be any question in the case." Erskine, Coltman, and Cresswell, JJ., concurred. The argument was that Woolrick's tenancy at will ended at his death, and that no new tenancy at will was created. Drummond v. Sant(1) was decided in 1871. The facts were as follows: The trustee of the Duke of St. Albans entered into an agreement in 1769 whereby he covenanted with the Messrs. Adam Bros. to grant leases to them of a piece of land called Durham Yard. The leases were to be for ninety-nine years from 1768. There was a bend in the River Thames opposite the land, and it was proposed to reclaim this land. A private Act of Parliament authorised the reclamation, and provided that the land should belong to the owners of the fee opposite. By this Act the land became vested in the lessor. Houses were erected on the land leased, including this piece reclaimed, and separate leases were granted as houses were put up so as to allow the lessees the more readily to deal with and dispose of the houses. No lease was, however, granted of part of the reclaimed land, as the other parts leased paid the aggregate rent agreed to (viz., £1,200), and if a lease or leases had been granted they would have been at a peppercorn rent. Further, until the passing of the 3 & 4 Will. IV., c. 27, the possession of the assignees of the lessees could not be deemed adverse, and hence the title of the lessors' successors was safe. It was held that the tenants of the houses on this piece of land which had not been leased were cestuis que trusts, and covered by the proviso of the 7th section of the statute. In 1883, in a case called In re Sands to Thompson (2), the effect of the statute was considered by Mr. Justice Fry. In that case a mortgage, dated 1853, granted certain hereditaments in the County of Devon to Sir Thomas Ackland and others to secure a large sum of money. In 1856 the mortgage was paid off, but no reconveyance was executed. More than thirteen years afterwards the hereditaments were agreed to be sold, and the question arose whether in the absence of a reconveyance the vendor could make a good title. The purchaser (1) L.R. 6 Q.B. 763; 41 L.J. Q.B. 21. (2) 22 Ch.D. 614. C.A. 1900. GLENNY v contended that the mortgagee was a trustee in the meaning of the proviso to section 7, and the mortgagors cestuis que trusts. Mr. Justice Fry decided that the proviso to section 7 RATHBONE did not apply, () because the true relationship of mortgagor and mortgagee was no longer subsisting between the parties, and (b) because the mortgagee was not a trustee, nor the mortgagors cestuis que trusts, in the meaning of the proviso. There was, he held, no actual express trust, and that the tenancy at will had expired, more than thirteen years having elapsed since the payment, and consequently the legal estate was barred. The case of Warren v. Murray(1) was decided in 1894. The facts were that in 1790 the defendant's predecessors in title entered into an agreement with a builder, who agreed to erect certain houses upon land in Camden Town to be leased to him. by them. They were to grant him leases for ninety-nine years at a rental of £20 per acre. The builder got possession and erected houses. Leases were executed, and under them the full stipulated rents were reserved. For some of the land no leases were executed, as no more rent was payable; and if they had been executed it would have been at a peppercorn rent. The interest of the builder in these lands became vested in the defendant. When the term of the leases expired, the plaintiffs, in whom was vested the freehold, entered, and now sought to eject the defendant from the land to which no lease had been issued. It was held that the proviso to the 7th section applied. Lord Esher, inter alia, said, “If it were necessary to construe section 7 I should say that it applied to "tenancies at will simply, and did not include a tenancy "where there was a clog upon the lessor exercising his will. "I should say that that was the true construction of the sec❝tion. If the lessor cannot enter at will, then he cannot "enter at all, and secti n 2 cannot be vouched against him. "I place my judgment in this case upon the ground that, as "the intending lessors could not, according to law, including "in that term both law and equity, have entered into posses"sion of these two houses during the ninety-nine years, the "statute did not apply." He also said, "We entirely accept 66 |