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

Rights of claimant

If a person to whom a particular estate is given by will for his life, takes possession, and is allowed to keep as part of that estate something not strictly belonging to it, he cannot set up a title as gained by adverse possession against the remainderman. (Anstee v. Nelms, 1 H. & N. 225; 26 L. J., Ex. 5. See Hawksbee v. Hawksbee, 11 Hare, 231; Yem v. Edwards, 1 De G. & J. 598.) The landlord of A. and B., adjacent closes, mortgaged them, and afterwards demised A. The tenant of A. built upon B. without leave of the landlord, who, on permission being asked, refused it, saying he had granted rights over B. to the occupier of other adjoining lands. The tenant held both A. and B. for twenty years, paying rent to the landlord under the demise of A., but not expressly in respect of B. It was held, that on this evidence, he might insist as against the laudlord on a twenty years' occupation of B. within the 3 & 4 Will. 4, c. 27, ss. 2 and 3. (Doe d. Baddeley v. Massey, 17 Q. B. 373.) One who occupies as his own land belonging to another, and before the expiration of twenty years becomes tenant to the latter of land adjacent to the land so occupied, does not thereby change the character of his possession, but can whilst he remains tenant acquire as against his landlord, a prescriptive title to the land first occupied by him. (Dixon v. Baty, L. R., 1 Ex. 259.)

As to what acts amount to possession, see the note to sect. 3 (post); as to the effect of certain acts in creating or determining a tenancy at will, see the note to sect. 7 (post); and as to possessory titles under 3 & 4 Will. 4, c. 27, see the note to sect. 34 (post).

It would seem that every claimant who has such a right of possession as to take possession. would entitle him to maintain ejectment, is still competent to take posses-sion, of his own authority, if he can do so without committing a breach of the peace. (Taylor v. Cole, 3 T. R. 292; Taunton v. Costar, 7 T. R. 431; Rex v. Wilson, 8 T. R. 357; Rogers v. Pitcher, 6 Taunt. 202; 1 Marshall, 541; Turner v. Meymott, 1 Bing. 158; 7 Moore, 574; Co. Litt. 245 b; 1 Mann. & Ry. 221, n. (c); 5 Nev. & M. 164; Reg. v. Newlands, 4 Jurist, 322; Perry v. Fitzhowe, 8 Q. B. 757.)

When the right

shall be deemed to

have first accrued.

in case of an estate

in possession,

on dispossession,

on abatement or death,

It was once held that the landlord could not acquire lawful possession by a forcible entry after the expiration of the term. (Newton v. Harland, 1 M. & Gr. 644; see Hey v. Moorehouse, 6 Bing. N. C. 52; Butcher v. Butcher, 7 B. & C. 402.) But the contrary has since been_decided. (Harvey v. Bridges, 14 M. & W. 437; Pollen v. Brewer, 7 C. B., N. S. 371.) A proviso for re-entry may be so framed as expressly to justify the lessor on breach of any of the covenants in forcibly resuming possession of the premises and expelling the tenant. (Kavanagh v. Gudge, 7 M. & Gr. 316.)

When Right shall be deemed to have first accrued.

3. In the construction of this act, the right to make an entry or distress, or bring an action to recover any land or rent, shall be deemed to have first accrued at such time as hereinafter is mentioned; (that is to say,) when the person claiming such land or rent, or some person through whom he claims, shall, in respect of the estate or interest claimed, have been in possession or in receipt of the profits of such land, or in receipt of such rent, and shall, while entitled thereto, have been dispossessed, or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received (7); and when the person claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been

c. 27, 8. 3.

the last person entitled to such estate or interest who shall have 3 & 4 Will. 4, been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death (m); and when the person claiming such land or rent shall claim in re- on alienation : spect of an estate or interest in possession granted, appointed or otherwise assured by any instrument (other than a will) to him, or some person through whom he claims, by a person being, in respect of the same estate or interest, in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person, claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument (n); and when the estate or interest claimed shall have in case of future been an estate or interest in reversion or remainder, or other estates: future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession (o); and when the person claiming such land or rent, or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred, or such condition was broken (p). (1) The first branch of sect. 3 deals with cases of discontinuance of pos- (1) Discontinusession of land and discontinuance of receipt of rent. ance of possession of land.

This statute does not apply to cases of want of actual possession, but to those cases only where the owner has been out of it and another party has been in possession for the prescribed time, for there must be both absence of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. Therefore, where in 1725 the owner in fee of a close, with a stratum of coal and other minerals under it, conveyed the surface to A. (under whom the plaintiff claimed), excepting the minerals to himself, his heirs and assigns, and reserving liberty to enter and get them, and the right of entry had not been exercised for more than forty years by the owner, but no other person had worked or been in possession of the mines, such owner was not barred by this section. (Smith v. Lloyd, 9 Exch. 562; 23 L. J., Ex. 194; 2 W. R. 271.) Where by an indenture, dated 19th October, 1738, certain lands were granted, excepting the mines, and with liberty for the grantor, his heirs and assigns, to enter for working them: it was held, that the grantor's right was not barred or extinguished by his omitting to work the mines for twenty years, the original possession, whatever that was, having remained unaltered, and no act having been done, or claims made, at variance or inconsistent with the right of the grantor and his heirs: the court construed the words "discontinuance of possession," in the statute, to mean an abandonment of possession by one person, followed by the actual possession of another person; for if no one succeed to the possession vacated or abandoned, there could be no one in whose favour or for whose protection the act could operate. To constitute discontinuance there must be both dereliction by the person who has the right, and actual possession, whether adverse or not, to be protected. (M'Donnell v. M'Kinty, 10 Ir. L. R. 514. See also Rimington v. Cannon, 12 C. B. 1, post.) To bring a case within the statute, possession must be by the person wishing

in case of forfeiture or breach

of condition.

There must be by another.

actual possession

3 & 4 Will. 4, to assert the statute, and not by third persons, or by the custody of the law. c. 27, 8. 3. (Howlin v. Sheppard, 19 W. R. 253.)

What is actual possession.

Possession of mines.

Receipt of profits of land.

A road, the soil and freehold of which were in A., ran from a highway to a well. The land upon each side of the road belonged to B. B. built a wall along the high road across the mouth of the road to the well, leaving a stile for foot passengers, and levelled the fences on each side of the road. There was a dispute as to whether those acts of B. had been done twenty years before the action was brought. Upon the trial of an action of trespass brought by A. against B., the jury was unable to agree whether the acts of B. had been done within twenty years, but found that the public, down to the commencement of the action, had exercised a right of way to the well, since the erection of the stile on foot, and before with horses and carriages. The judge thereupon discharged them from a finding upon the time when B.'s acts were done, and directed a verdict for the plaintiff: it was held (Pigot, C. B., dissenting), that this was a misdirection, and that if B.'s acts were done more than twenty years before the action was brought, A.'s title was barred by the Statute of Limitations, 3 & 4 Will. 4, c. 27. (Tottenham v. Byrne, 12 Ir. C. L. R. 376.)

As to what acts constitute possession of a ditch, see Searby v. Tottenham Railway Company (L. R., 5 Eq. 409); of a boundary wall, Phillipson v. Gibbon (L. R., 6 Ch. 428); of a gravel pit and road, Smith v. Stocks (17 W. R. 1135).

The inference of abandonment of right from non-user is not applicable to the case of mines. (Seaman v. Vawdrey, 16 Ves. 390.) Trespass for breaking and entering the plaintiff's closes and digging minerals therein. Pleas, first, not guilty; secondly, not possessed; and thirdly, a plea justifying the trespasses by the defendant as assignee of a lease of the minerals for ninety-nine years, granted by the owner in 1821. Replication, that the right to make an entry did not first accrue to the defendant within twenty years next before the making of the said entry. It appeared in evidence that from 1816, B. was in possession of the close under a lease, in which there was no reservation of the mines. In 1821, the owner granted a separate lease of the minerals to B. and P. for ninety-nine years, under whom the defendant claimed. In 1847, the mines were first worked: it was held, that B. was in possession of the mines before 1821, by reason of his being in possession of the surface as lessee under a lease, without reservation of the mines; and that such possession enured for the benefit of himself and P. on the granting of the lease of 1821, so as to make himself and P. possessed of the mines from 1821 under that lease, and not to leave the effect of that lease to be the granting of a mere interesse termini. (Keyse v. Powell, 2 Ell. & Bl. 132; 17 Jur. 1052; 22 L. J., Q. B. 305.) It was held further, on the third issue, that, although the plea confessed the possession to be in the plaintiff at the time of the alleged trespass in 1847, yet that the defendant was not confined to rely upon the right of entry which accrued to him in 1821, but might rely on a supposed dispossession within twenty years before 1847, and his right of immediate re-entry thereupon. (Ibid)

Acts of trespass by working coal, of which the then owner of the coalmine was ignorant, were held not to constitute adverse possession of the mine within this statute. (Earl of Dartmouth v. Spittle, 19 W. R. 444.) In order to prove possession, in an ejectment for mines, it is not sufficient to show that the lessor of the plaintiff was lord of the manor; an actual possession of them within twenty years must be proved. (Rich v. Johnson, Str. 1142.) A verdict for the plaintiff in trover for lead dug out of a mine will not prove possession of the mine, for trover may be brought on property without possession. (Bull. N. P. 102; Adams on Ejectment, 263, 4th ed.)

Lord St. Leonards is of opinion that the expression "in receipt of the profits of any land," is used in the act in conjunction with the words "in possession of the land," to denote not the receipt of rent from a tenant, but the receipt of the actual proceeds of the land. (R. P. Stat. 47.) By section 35, the receipt of the rent payable by any tenant from year to year, or other lessee, is, against such lessee or any person claiming under him

(but subject to the lease), the receipt of the profits of the land for the purposes of this act.

3 & 4 Will. 4,

c. 27, s. 3.

Where a copyhold tenant had not paid his fine, and the lord had seized quousque, and thirty-seven years expired, and the heir of the tenant Seizure quousque. offered the fine, and then filed a bill to compel admittance; it was argued, that time ought to run from the date of the offer, but it was held that time ran from the date of the seizure, on the ground that it was the duty of the copyhold tenant to pay the fine. (Walters v. Webb, L. R., 5 Ch. 531.)

As to the party upon whom the onus lies of proving the commencement of the wrongful possession, see Poole v. Griffith, 15 Ir. C. L. R. 239,

277.

Where a party has been in receipt of rent and afterwards discontinues Discontinuance of such receipt, the statute fixes the point from which the twenty years are to receipt of rent, date at the day on which the last payment of rent was made, and the party claiming has not the option of calculating from the time when he discontinued the receipt of rents. In this case the defendant was entitled to an ancient quit rent, payable annually at Michaelmas out of certain land held of his manor. All the rent which accrued due to Michaelmas, 1824, was duly paid; the last payment having been made on the 15th January, 1825. No rent was paid after that date, and on the 15th May, 1845, the defendant distrained for six years' arrears of rent accrued due up to Michaelmas, 1844; and it was held, that at the time of the distress his title to this rent had been extinguished by lapse of time. (Owen v. De Beauvoir, 16 Mees. & W. 547, affirmed 5 Exch. 166; 19 L. J, Ex. 177. See post, s. 34, n.) A person dispossessed of land is allowed twenty years from the time of his being dispossessed, and during all that period he may bring his ejectment. But a person disseised of rent has, according to the above case, only twenty years from the last payment; and so, if an annual rent has been paid on the day on which it became due, and afterwards unjustly withheld, the party aggrieved has only nineteen years, instead of twenty, during which he can bring his action or distrain; for during the first year of the twenty it is plain that he has no right of distress or action at all. (Per Parke, B., Ŝ. C., 16 Mees. & W. 565.)

Where an old rent-charge had always been received from the occupier of one part of the premises charged, and then for the first time had been levied by distress on the occupier of another part, which for more than twenty years had been in a separate ownership, and the owner or occupier of which had never paid the rent before; it was held, that the right to distrain for the rent on the latter portion of the premises was not barred by this statute. (Woodcock v. Titterton, 12 W. R. 865; cf. Archbishop of Dublin v. Lord Trimleston, 12 Ir. Eq. R. 251.) Where the rents of mines are reserved by means of payment of produce in specie, the produce will be considered as accruing to the lessor at the time of receiving such produce, and not at the time of the sale of it: and, therefore, time will run under the statute from the receipt, and not from the sale. (Denys v. Shuckburgh, 4 Y. & Coll. 42. See M'Donnell v. M'Kinty, 10 Ir. L. R. 514.)

mencing on death.

(m) The second branch of section 3, deals with cases where wrongful (2) Wrongful possession commenced on the death of a rightful owner. "Thus where A., possession comseised in fee in possession dies either intestate, leaving B. his heir, or having devised to B. in fee or for a less estate (sed qu., James v. Salter, 3 Bing. N. C. 544), and C., a stranger, first obtains possession after the death of A., the time runs against B. from A.'s death, and not from C.'s entry." (1 Hayes, Conv. 248.)

Lord St. Leonards seems to be of opinion, that a rent newly created by will (as in James v. Salter, 3 Bing. N. C. 544), would fall within this second branch of section 3. (R. P. Stat. 22.) But this opinion is questioned. (Darb. & Bos. Stat. Lim. 228.)

A. let land to B. by parol from year to year, reserving rent payable in March and November. The last payment of rent was in March, 1846: A. died in December, 1846, the rent which became due in November, 1846, not having been paid. B. retained possession, and in ejectment brought

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

(3) Wrongful possession com

mencing on alienation by rightful

owner.

Cestui que trust in possession.

(4) Future interests.

by A.'s heir in October, 1866, it was held that time ran, under section 8, from the last payment of rent, and not from A.'s death under section 3; and that even if section 3 applied, A. was not shown to have continued in receipt of the rent till the time of her death, so as to bring the case within it. (Baines v. Lumley, 16 W. R. 674.)

(n) The third branch of sect. 3 deals with cases where wrongful possession commenced on alienation by a rightful owner. On the construction of the words "other than a will" in this branch, see James v. Salter, 3 Bing. N. C. 544.

On the trial of an ejectment for certain undivided shares of a messuage and lands in Kent, before Lord Denman, C. J., at the Maidstone Spring Assizes, 1846, it appeared that, in 1766, the owner in fee of the premises had mortgaged them to one Hubbard for a term of 500 years. In the following year Hubbard became the absolute purchaser in fee; and the residue of the term was at the same time assigned to one Holyhead (since deceased), in trust for Hubbard, and to attend the inheritance. A limited administration of this term, as part of the goods of Holyhead, had been taken out by the lessor of the plaintiff in 1843; and he brought this ejectment on behalf of the infants, who claimed title, through Hubbard, to the beneficial interest in four-ninths, undivided shares, of the property, their title being denied by the defendants, who also claimed through Hubbard. Holyhead had never been in possession, nor had Hubbard before he became owner in fee. The defendants objected that the right of entry was barred by the 2nd section of this act. The verdict was for the plaintiff, with leave for the defendants to move to enter a nonsuit. The court decided that the lessor of the plaintiff was barred by the 2nd and 3rd sections of the act. Patteson, J., would not say that the words of the 3rd section, as to persons claiming on alienation, which have been referred to, are specially pointed to the case of trustee and cestui que trust; but they certainly seem to be very applicable. Now, if the termor could have brought ejectment twenty years before this action was brought, there is an end of the case; for this action was not brought within five years after the passing of stat. 3 & 4 Will. 4, c. 27, so as to be within the saving of the 15th section. The 3rd section seems clear; and there is nothing in any other part of the act to militate against our construction of it. (Doe d. Jacobs v. Phillips, 10 Q. B. 130.) The Court of Common Pleas did not consider the case last cited as binding on them, but expressed an opinion that the case of a cestui que trust holding possession of land under a trustee does not fall within this clause, which is meant to apply to cases where the person holding the land does not hold it under, or in privity with, the person in whom the right of entry is supposed to be. The cestui que trust, in such a case, holds possession under the trustee and under the protection of the instrument by which the estate is conveyed to the trustee. It cannot, therefore, be said that it is a case in which no person entitled under the instrument has been in possession, for the cestui que trust has been in possession under the instrument. It was held that the cestui que trust was tenant at will to his trustee, unaffected by sect. 7; and that whilst the estate at will remained, the statute did not operate. (Garrard v. Tuck, 8 C. B. 231.) See further as to the possession of the cestui que trust, Drummond v. Sant, L. R., 6 Q. B. 763, and the note to sect. 25, post. (0) The fourth branch of sect. 3, together with sects. 5 and 20, deal with future interests.

The words in this branch of sect. 3, "or other future estate or interest" were said to be large enough to comprehend, and would comprehend, all executory devises. (James v. Salter, 3 Bing. N. C. 554, ante, p. 145. See Doe d. Johnson v. Liversedge, 11 Mees. & W. 517, post, sect. 20, n., as to what is a future estate within these words.)

A., being tenant for life of a copy hold estate, and B. his daughter tenant in tail in remainder, joined in a recovery in 1778, and A. surrendered to the use of himself for life, remainder to the right heirs of the survivor. A. and B. shortly afterwards surrendered to a bona fide purchaser in fee. B. having become the survivor died without having made any further surrender. On an ejectment by her heir-at-law within twenty years after her