ejectment be a complete bar to the remainderman or reversioner, because it was adverse to his title. (Cowp. 218.) Where the relation of landlord and tenant could be implied, the statute 21 Jac. 1, c. 16, did not run (2 Bos. & Pull. 542), or where the party in possession was tenant at sufferance. (2 Dowl, & Ryl. 38.)

Three females, being coparceners in tail, two of them suffered recoveries of their shares, but the third did not. They all married, and their husbands entered into an agreement for partition by deed of the lands held in coparcenary, but for nothing more. No such deed appeared to have been executed, but the lands had been held according to the agreement from its date. An action being brought by the heir in tail of the parcener who did not suffer a recovery, within twenty years after her death, and before the stat. 3 & 4 Will. 4, c. 27, to recover her share, which had been held by the husband of one of the other coparceners, it was held, that the possession was under the agreement, and not adverse. It was also held, that nothing could be presumed, beyond what was contemplated by the agreement, which provided for a deed and not for a recovery. (Doe d. Millett v. Millett, Law J., 1848, Q. B. 202; 11 Q. B. 1036.)

Possession is either in fact or in contemplation of law, and in either case, while it remained in the owner, the stat. 21 Jac. 1, c. 16, did not run. Therefore, where a stranger entered and divided the profits of an estate for more than twenty years with the real owner, it was held, that he might, notwithstanding, maintain an ejectment, as where two men are in possession, the law will adjudge it to be in him who has the right. (Reading v. Ramsterne, 2 Ld. Raym. 829; 1 Salk. 423.)

Issues in tail had no distinct and successive rights under the stat. 21 Jac. 1, c. 16, any more than heirs of estates in fee simple (4 Taunt. 830), and therefore that statute began to run when the title descended to the first tenant in tail, unless he was under a disability, and each succeeding tenant in tail had no right to sue within twenty years after the death of his predecessor. (Tolson v. Kaye, 3 Brod. & Bing. 217. See 3 B. & A. 738; Tolson v. Kaye, in error, 6 Man. & G. 536; Doe d. Daniel v. Woodroffe, 10 M. & W. 633; 16 M. & W. 769.)

Where the possession of one party was consistent with that of the other, it was not considered adverse. Thus, where by a marriage settlement a copyhold estate was limited to the use of the survivor in fee, but no surrender was made to the use of the settlement, and after the death of the wife, the husband was admitted to the lands, pursuant to the equitable title acquired by the settlement: it was held, that if he had no other title than the admission, a possession by him for twenty years would have barred the heir of the wife; but as it appeared that there was a custom in the manor for the husband to hold the lands for his life in the nature of a tenant by the curtesy, and this without any admittance after the death of the wife, the possession of the copyhold by the husband was referred to this title, and not to the admission under the settlement; and such possession being consistent with the title of the heir at law, he was allowed to maintain ejectment against the devisee of the husband within twenty years after the husband's death, though more than twenty years after the death of the wife. (Doe d. Milner v. Brightwen, 10 East, 588.) So where A., being seised in fee of an undivided moiety of an estate, devised the same (by will made some years before her death) to her nephew and two nieces as tenants in common; one of the nieces died in the lifetime of A., leaving an infant daughter; A., by another will, which was never executed, intended to have devised the moiety to the nephew and surviving niece, and the infant daughter of the deceased niece. After A.'s death, the nephew and surviving niece covenanted to carry the unexecuted will into execution, and to convey one-third of the moiety to a trustee upon trust to convey the same to the infant if she attained twenty-one, or to her issue if she died under twenty-one and left issue, or otherwise to the nephew and niece in equal moieties. No conveyance was executed in pursuance of the deed. The rents of the third were received by the trustee for the use of the infant during her lifetime. An ejectment having been brought by the devisee of the nephew more than twenty years after his death, but within twenty years

3 & 4 Will. 4,

c. 27, s. 2.

3 & 4 Will. 4, c. 27, s. 2.

after the death of the infant: it was held, that there was no adverse possession until the death of the infant, and that the ejectment was well brought. (Doe d. Colclough v. Hulse, 3 B. & Cr. 757.) But where copyhold lands had been granted to A. for the lives of herself and B., and in reversion to C. for other lives, and A. died, having devised to B., who entered and kept possession for more than twenty years: it was held, that C. was barred by the statute after B.'s death from maintaining ejectment, as C.'s right of possession accrued on the death of A., when his interest terminated, inasmuch as there could be no general occupant of copyhold land. (Doe d. Foster v. Scott, 4 B. & Cr. 706; 7 Dowl. & Ry. 190.) Where a daughter entered into occupation of premises on the death of a mother, to whom they had belonged till then, and held them without interruption for twenty years, but the mother had left a son who was living during the whole time of the daughter's occupation: it was held (on ejectment brought before the stat. 3 & 4 Will. 4, c. 27, came into operation), that it could not be presumed from this circumstance alone that the sister's occupation was virtually that of the brother's. (Doe d. Draper v. Lawley, 13 Q. B. 954.) A wrongful continuation of possession for twenty years after the expiration of a title, under which the tenant lawfully entered, constituted such an adverse possession as would, under the statute of 21 Jac. 1, c. 16, create a bar to an entry or to an action of ejectment, as where the husband of tenant for life held over twenty years after her decease. (Doe d. Parker v. Gregory, 4 Nev. & Mann. 308. See Doe d. Allen v. Blakeway, 5 Car. & P. 563.)

Where a party is let into possession of land with the consent of the owner, and does acts importing that he continued in possession only with the owner's permission, such acts will prevent the possession being adverse. (See Litt. s. 70.) On ejectment, G., under whom the defendant claimed, was let into possession twenty-two years before the action brought, by virtue of a contract with P. for the purchase of an allotment accruing to P. under an inclosure act, which provided that a purchaser let into possession of an allotment should have the same rights as the vendor. G. paid interest on a portion of the purchase-money for some years, but never completed the purchase: it was held, that even after the lapse of twenty-two years, his possession was not adverse to P.'s title, and that there was no ground to presume a conveyance. It was also held, that G., or any person claiming under him, was estopped from raising an objection to P.'s title, that the commissioners of inclosure had made no formal award. (Doe d. Milburn v. Edgar, 2 Bing. N. C. 498.) Where a widow continued to reside in a freehold house, of which she was seised, for more than twenty years after her husband's death, it was held that her possession was not adverse, except perhaps against the heir, as her possession might be intended to be in respect of dower. (Doe d. Hickman v. Haslewood, 1 Nev. & P. 352; 6 Ad. & El. 167.) As to parol declarations negativing a widow's title under a possession for twenty years, see Doe d. Haman v. Pettet, 5 B. & Ald. 223; Doe d. Roffey v. Harbrow, 1 Nev. & M. 422; 3 Ad. & Ell. 67, n.; and Doe d. Welsh v. Langfield, 16 M. & W. 497.)

The owner of a cottage divided into two parts, in 1808 put in two servants, H. and W. to occupy it, who occupied each part severally till his death in 1814, without paying rent. They continued to occupy undisturbed after his death till 1821, when H. died, having by his will devised his moiety to W. H. some time before his death took in L. to live with him as a servant, and after H.'s death L. continued in possession. It was held, on ejectment brought by W., that by proving L. to have come in under H. he had shown a prima facie title. The stat. 3 & 4 Will. 4, c. 27, s. 2, was held inapplicable, because the defendants were mere strangers; and the question was, whether the plaintiff had made out any title at all, and the court thought that he had, by showing H. to have been in possession of the premises, and that L. came in under H. (Doe d. Willis v. Birchmore, 1 Perry & Dav. 448; 9 Ad. & Ell. 662.) A woman, living apart from her husband, obtained a demise of property for a term; the husband's representative brought ejectment against a party who claimed to have had adverse possession for more than twenty years, and who had obtained and held possession without knowing of the husband's existence: it was held,

that it was no misdirection to direct the jury to find for the plaintiff, unless they thought that such possession was adverse to the wife; inasmuch as, if adverse to the wife, it was adverse to the husband, and not otherwise. (Roe d. Wilkins ▼. Wilkins, 4 Ad. & Ell. 86; 5 Nev. & M. 434.) The solitary act of entry and attornment, followed by no assertion of right for upwards of thirty years, is no evidence of a possession not being adverse prior to 3 & 4 Will. 4, c. 27. (Doe d. Linsey v. Edwards, 5 Ad. & Ell. 95.)

The stat. 21 Jac. 1, c. 16, ran against the lord of a manor as well as against any other person. Hence, if a house, &c., be built upon the waste, the lord shall take care to have some entry made of it in his books, and reserve some rent or service, otherwise he will lose his right. If a cottage is built upon waste in defiance of a lord of a manor, and quiet possession has been had of it for twenty years, it is within the statute 21 Jac. 1, c. 16; but if it were built at first by the lord's permission, or any acknowledgment have been since made, (though it were 100 years since,) that statute would not run against the lord. (Bull. N. P. 104, cited 3 B. & C. 414.) Payment of rent for a piece of waste land after an occupation of thirty years, without previously paying any rent, was held conclusive evidence that the former occupation by the party was a permissive occupation. (Doe d. Jackson v. Wilkinson, 3 B. & C. 413.) So where a cottage, standing in the corner of a meadow, (belonging to the lord of a manor,) but separated from the meadow and highway by a hedge, had been occupied for about twenty years without any payment of rent, and then upon possession being demanded by the lord was reluctantly given up, and was afterward restored to the party, he being at the time told that if allowed to resume possession, it would only be during pleasure, and he kept possession fifteen years more, and never paid any rent: it was held, that the jury were warranted in presuming that the possession had commenced by the permission of the lord. (Doe d. Thompson v. Clarke, 8 B. & C. 717. See Reg. v. Cuddington, 2 New Sess. C. 10; Law J. 1845, M. C. 182.) A mere licensee is in this respect on the same footing as a tenant. (Doe v. Baytup, 3 Ad. & E. 188.) A., in 1800, without any leave inclosed a small piece of waste land from a common, and held and cultivated it, and in 1826 built a hut upon it, wherein he lived for a year and a-half, and in 1827 sold and conveyed it to a purchaser. In the years 1806, 1811 and 1817, the parish officers and freeholders, who perambulated the parish for the purpose of marking the boundaries and asserting their right of common, pulled up a portion of the fence to the land inclosed, and dug up part of the bank and rode through the inclosure. In 1820 or 1822, a like perambulation was made by the direction of the lord of the manor, when similar acts were done. No acknowledgment was paid to the lord for the land, nor other act done for asserting the right to the land. In a question as to the settlement of A. it was held, that he had been in adverse possession of the land for twenty years. (Rex v. Inhabitants of Woburn, 10 B. & C. 846.) An inclosure made from the waste twelve or thirteen years before, and seen by the steward of the same lord from time to time without objection, may be presumed by the jury to have been made by licence of the lord; and ejectment cannot be brought against the tenant as a trespasser, without previous notice to throw it up. (Doe d. Foley v. Wilson, 11 East, 56.) As to licence for an encroachment on a common given by a commoner, see Harvey v. Reynolds, 12 Price, 724; 1 C. & P. 141. If a person, within twenty years, inclose a portion of the lord's waste by the licence of the lord, such person cannot be turned out of the possession of it by the lord, without some act being done, from which a legal revocation of the licence can be inferred. (Doe d. Dunraven v. Williams, 7 Car. & P. 332.) When premises have been inclosed from the waste with the knowledge of the lord, the licence presumed from his acquiescence may be revoked by the lord's breaking down the fences before the commencement of the action. A cottage had been built on land inclosed from the waste, and there was evidence of its having been done with the knowledge of the lord. It was proved, that the lord of the manor and his servants, a few days only before the action was brought, had entered on the inclosure and broken down the hedges in

3 & 4 Will. 4,

c. 27, s. 2.

Adverse possession before 3 & 4 the case of enWill. 4, c. 27, in croachments from waste.

3 & 4 Will. 4, c. 27, s. 2.

Encroachments by tenant adjoining landlord's estate.

Possessory title before the act.

Doctrine of non

adverse possession

done away with by 3 & 4 Will. 4,

c. 27, ss. 2 and 3.

several places: it was held, that the jury were warranted by such act in finding a revocation of the licence. Such revocation may be by act in pais or by parol; and no precise time is limited by law as necessary to intervene between it and the commencement of the action, which treats the party in possession as a trespasser. (Doe d. Beck v. Heakin, 6 Ad. & Ell. 495; 2 N. & P. 660.) A., forty-five years ago, inclosed a piece of ground from the waste, and built a cottage on it; he died twenty-nine years ago, and after that his widow and daughter lived on the premises till the death of the former, a month before the trial: it was held, in ejectment by A.'s eldest son, that his claim was barred unless the jury were satisfied that his mother held the premises by his permission and not adversely. (Doe d. Pritchard v. Jauncey, 8 Car. & P. 99.) If a person makes an encroachment from the waste and dies within twenty years, this encroachment (except as against the rightful owner) descends to his heir, and does not go to his executor. (Ib.)

If a tenant makes an encroachment adjoining to the farm he rents, this encroachment will be for the benefit of his landlord, unless it appear clearly, from some act done at the time, that the tenant intended to make the encroachment for his own benefit, and not to hold it as he held the farm. (Doe d. Lewis v. Rees, 6 Car. & P. 610; Doe d. Challoner v. Davies, 1 Esp. 461; Bryan d. Child v. Winwood, 1 Taunt. 208; Doe d. Watt v. Morris, 2 Bing. N. C. 189; 2 Scott, 276. See ante, pp. 48, 49.) As to when encroachments by the tenant on the waste do not belong to the landlord, see Doe d. Colclough v. Mulliner, 1 Esp. 460. Primâ facie, every enclosure made by a tenant adjoining the demised premises is presumed to be made by him for the benefit of the landlord; but this presumption may be rebutted by evidence. If a lessee inclose land which is near the demised premises, as being part of the premises comprised in his lease, this is not an adverse possession against his landlord, and a twenty years' possession by him will not enable him to retain possession of the inclosed land against his landlord. (Doe d. Dunraven v. Williams, 7 Car. & P. 332; Doe d. Harrison v. Murrell, 8 Car. & P. 134. Ante, p. 48.)

Possession for twenty years, though gained by manifest wrong, and though liable to be defeated by the entry of the rightful owner, is a title as against strangers (Doe d. Payne v. Webber, 1 Ad. & Ell. 119; 3 Nev. & M. 746; Doe v. Parke, 4 Ad. & Ell. 816), and consequently confers on the possessor, on ouster or trespass by a stranger, the ordinary remedies for such injuries, notwithstanding it may be apparent to the court that the rightful title is in another. (See 3 Man. & R. 112, n.) A party who has a possession for twenty years has a good title against any one coming in after, unless the latter shows title. (Doe d. Danson v. Parke, 4 Ad. & Ell. 818; per Lord Denman. See Doe d. Smith v. Webber, 1 Ad. & Ell. 119.) Before the stat. 3 & 4 Will. 4, c. 27, if no other title appeared, a clear possession of twenty years was strong presumptive evidence of a fee. (Doe d. Tarzwell v. Barnard, Cowp. 595.) Possession of land for any term less than twenty years by a feoffee is not presumptive evidence of livery of seisin. (Doe d. Wilkins v. Cleveland, 9 B. & C. 864; 4 M. & R. 666; Doe d. Lewis v. Davies, 2 Mees. & W. 503.) Where a plaintiff in ejectment proved twenty years' possession immediately preceding that for ten years by the defendant, it was held that the former was entitled to recover, as his earlier possession must prevail. (Doe d. Harding v. Cooke, 7 Bing. 346; 5 Moore & P. 181. See also Stocker v. Berny, 1 Ld. Raym. 741; 2 Salk. 421; 1 Burr. 119.)

The effect of 3 & 4 Will. 4, c. 27, s. 2, is to put an end to all questions and discussions whether the possession of the lands, &c., be adverse or not, and if one party has been in the actual possession for twenty years, whether adversely or not, the claimant, whose original right of entry accrued above twenty years before bringing the ejectment, is barred by this section. (Culley v. Doe d. Taylorson, 3 P. & Dav. 548; 11 Ad. & Ell. 1008.) What is adverse possession has generally no operation except with regard to the 15th section. Sir E. Sugden, L. C., said, "Under the new act possession gives the right, and not only gives the right, but transfers the estate. All former statutes barred the remedy, but did not bar the estate; they did not create an estate, although they enable the party to hold

against all the world. But the new statute in point of fact gives the estate, to recover which the remedy is barred, for it bars the remedy and binds the estate; and if the five years have elapsed under the 15th section – if the possession was what was called adverse, because possession would give a good title under the act, unless the party could bring his case within some of the exceptions in the subsequent section-the estate is transferred, and the remedy is barred." (Incorporated Society v. Richards, 1 Connor & L. 84, 85; 1 D. & War. 289, and see Sugd. R. P. Stat. 77, 2nd ed.) Lord Denman, C. J., said, "We are all clearly of opinion that the 2nd and 3rd sections of the stat. 3 & 4 Will. 4, c. 27, have done away with the doctrine of non-adverse possession; and except in cases falling within the 15th section of the act (see post), the question is, whether twenty years have elapsed since the right accrued, whatever be the nature of the possession." (Nepean v. Doe d. Knight, 2 Mees. & W. 911. See Doe d. Higginbotham v. Barton, 3 P. & Dav. 198; Jack v. Walsh, 4 Ir. L. R. 254.) It is perfectly settled, that adverse possession is no longer necessary in the sense in which it was formerly used, but that mere possession may be and is sufficient under many circumstances to give a title adversely; and although, perhaps, now, no better expression than adverse possession can be used, yet it is not adverse in the sense in which that phrase was used before this act was passed. (Dean of Ely v. Bliss, 2 De G., M. & G. 476, 477.)

Some of the principles, however, laid down in the old cases on adverse possession have been acted on in recent cases. Thus, in Thomas v. Thomas (2 K. & J. 83), Wood, V.-C., applied and acted on the principle that possession is never considered adverse if it can be referred to a lawful title. (Doe v. Brighten, 10 East, 583.) In Pelly v. Bascombe (4 Giff. 394), Stuart, V.-C., said, "One effect of the statute 3 & 4 Will. 4, c. 27, is materially to alter the law as to what is called adverse possession. The present state of the law is as follows: The fact of a person receiving the rents of a property raises a presumption that he receives them in the character of owner; but this presumption may be rebuted in many ways. It may be rebutted by express evidence to the contrary; by evidence affecting the person who has entered into possession, or by evidence of the mode in which he has dealt with the rents." In that case accordingly where a father seised of land made a will invalid as to real estate whereby he appointed his brother to whom he was indebted executor, and died leaving two infant daughters, and the uncle entered upon the real estate and kept down the interest on a mortgage, and laid out considerable sums on improvements, it was held that the possession of the uncle could not be treated as having been adverse to his nieces. This decision was affirmed on appeal. (13 W. R. 306.) Before the act 3 & 4 Will. 4, c. 27, the possession of a cestui que trust was not at law adverse to the title of the trustee (Smith v. King, 16 East, 283), and the same has been held since the act. (Drummond v. Sant, L. R., 6 Q. B. 763.) It was said that in the case of a mortgagee the doctrine of adverse possession had been revived by 7 Will. 4 & 1 Vict. c. 28. (Doe v. Eyre, 17 Q. B. 366.)

Where a landlord had set apart a portion of his property, and built a schoolhouse upon it, and appointed a schoolmaster, who was paid an annual stipend by the landlord, and was also paid by subscription and by the scholars, and the schoolmaster was permitted to occupy these premises for the purpose of the school: it was held, that such occupation for upwards of twenty years did not give the schoolmaster an adverse right against the landlord; for his occupation was the occupation of the landlord, he being in the situation of a servant. (Lessee of Moore v. Doherty, 5 Ir. L. R. 449; sec Lessee of Ellis v. Crawford, 5 Ir. L. R. 404; Lessee of Montmorency v. Walsh, 4 Ir. L. R. 254.) Where a solicitor received the rents of a mortgaged property it was held that the possession was that of the client, and that time did not run against the client. (Ward v. Carttar, L. R., 1 Eq. 29.) A principal may acquire a possessory title to real estate by receiving the rents for twenty years through an agent, although that agent is the person really entitled to the estate. (Williams v. Pott, L. R., 12 Eq. 149.)

3 & 4 Will. 4,

c. 27, 8. 2.

Adverse possession since 3 & 4 Will. 4, c. 27.