F 1852. CANNON, Dem., RIMINGTON, Ten.. whole time has not run against him, the persons, issue or remainder-men, whom he could have barred, have only the time which remains to run, within which to prosecute their right; and, thus claiming, as it were, to stand in his place, they cannot claim the benefit of the savings in the act in regard to their own disabilities." The 21st and 22nd sections are pure clauses of limitation: they do not apply to validate invalid conveyances; that is done, in a very guarded manner, by section 23. This series of sections has no application to the case of a tenant-in-tail who has executed a feoffment. Assuming, then, that the case is not governed by sections 21 and 22, we are thrown back upon sections 2 and 3. The 2nd section is entirely in favour of the issue in tail: it enacts, “that, after the 31st of December, 1833, no person shall make an entry or distress, or bring an action, to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or, if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same." It may be admitted, for the purpose of this argument, that the issue in tail is a person claiming through the tenant-in-tail, for the purposes of this act. (a) It was at one time supposed that the 3rd section expresses all the cases which are embraced by the (a) The interpretation clause, s. 1, enacts that, "the person through whom another person is said to claim, shall mean any person by, through, or under, or by the act of whom, the person so claiming became entitled to the estate or interest claimed, as, heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise," &c. 2nd. The point arose upon the claim of an annuitant under a will, who had never received any payment. It was at first held,-James v. Salter, 2 N. C. 505, 2 Scott, 750,-that the right was not barred by the lapse of twenty years. It was observed that no annuity can be recovered, by the 2nd section, unless within twenty years after the right of action accrued, but that section must be construed by the 3rd, which explains what is meant by the words "when the right shall first have accrued;" but the case did not fall within either of the two first conditions, and not within the third, because gifts by will are expressly excepted. This construction however, was, upon further consideration, abandoned; and it was held,-James v. Salter, 3 N. C. 544, 4 Scott, 168,-that the 2nd section contemplates and provides for the case where the right or title to the annuity itself is disputed; and the object of the 3rd, is, to explain and give a construction to the enactment contained in the 2nd clause, as to "the time at which the right to make a distress for any rent shall be deemed to have first accrued," in those cases only in which doubt or difficulty might occur, leaving every case which plainly falls within the general words of the 2nd section, but is not included amongst the instances given by the 3rd, to be governed by the operation of the 2nd. This second phase of James v. Salter seems to have been universally approved: see Sugden's Essay, edit. 1852, p. 85; Hayes on Conveyancing, 5th edit., Vol. 1, p. 253. The first branch of the 3rd section enacts, "that, 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," as follows,"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 1852. CANNON, Dem., RIMINGTON, Ten. 1852. CANNON, Dem., RIMINGTON, Ten. 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." The third plea seeks to bring this case within that provision. The answer to that upon the record, is, that, before the tenant-in-tail discontinued the possession of the land, he executed a feoffment, and, from that time down to the time of his death, remained out of possession and out of the receipt of the rents and profits. That branch of the section applies to the case of one who, being entitled, is dispossessed, or abandons the possession. This is the construction put upon the statute by Sir L. Shadwell, in Jumpsen v. Pitchers, 13 Simons, 327, explaining a previous case of Doe d. Corbyn v. Bramston, 3 Ad. & E. 63 (a). Hill, in reply, referred to the argument of Mr. Hodgson, in Doe d. Daniell v. Woodroffe, 10 M. & W. 624, where he says, "The base-fee acquired by the innocent assurance of a tenant-in-tail, is not an estate adverse to the estate-tail, but rather an estate in the nature of a long lease, to be fed out of the estate-tail, and leaving in the issue in tail something of the same character as a reversion upon a long lease, and more than a mere right of entry. It cannot be said that there is in such a case any interruption of the seisin, as there would be by a feoffment. It would be a strange construction to say, that, when a party has covenanted to stand seised to the use of another, that other can allege that the deed operated as a disseisin, or interruption of the seisin, of the very person who by his covenant was to retain the estate for the (a) S. C. per nom. Doe d. Corby v. Branson, 4 N. & M. 664. See the observations upon this case, in Sugden's Essay, p. 87. other's benefit. The possession under such an instrument is not adverse, as Lord Holt says, in Machell v. Clarke, 2 Lord Raym. 778, 2 Salk. 619, 7 Mod. 18, it does no prejudice to the issue, for, they have only to enter to defeat it: it does not put them to their formedon, and their right to enter is in no wise barred. The statute of James, indeed, took away the remedy by action; but the right was not affected until the recent statute of 3 & 4 W. 4, which declares, that, for the future, when the remedy is gone, the right shall cease also.” Cur, adv. vult. JERVIS, C. J., now delivered the judgment of the court. This case turns upon the true construction of certain sections of the statute 3 & 4 W. 4, c. 27. The estate-tail having been discontinued by the feoffment mentioned in the pleadings more than twenty years before the death of the tenant-in-tail, the question is, whether the issue in tail can have his writ of formedon within twenty years next after the death of the tenant-in-tail, or whether the period of limitation is to run against him during the life of the tenant-in-tail. We are of opinion that the former is the true construction of the act, and that the demandant is entitled to our judgment. The 38th section enacts "that when, on the said 1st day of June, 1835, any person whose right of entry to any land shall have been taken away by any descent cast, discontinuance, or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said 1st day of June, 1835, but only within the period during which by virtue of the provisions of this act an entry might have been made upon the same land by the person bringing such writ or action, if his right of entry had not been so taken away." The time within which 1852. CANNON, Dem., RIMINGTON, Ten. 1852. CANNON, Dem., RIMINGTON, Ten. an entry might have been made, if the right of entry had not been taken away, is governed by previous sections, -the 2nd, the 3rd, and 21st sections. Mr. Hill contends that the 21st section is applicable to this case; and, no doubt, as he says, if the tenant-in-tail had voluntarily abandoned his interest during his life, and had remained out of possession for twenty years, the issue in tail would have been barred: but, although there may be an apparent hardship in the case, and a difficulty in understanding why in principle such a distinction should exist, we are of opinion that the 21st section does not apply to this case, and that the right of a tenant-in-tail to make an entry or bring an action to recover the land, cannot be barred by reason of the same not having been made or brought, in a case where the tenant-in-tail has conveyed away his own right, and has put it out of his power to make an entry or bring an action. The same view of the case shews that this case does not come within the first alternative of the 2nd section, or the first branch of the 3rd section. The demandant cannot say that he claims per formam doni, and not through the tenant-in-tail; for, the interpretation clause concludes that question. The issue in tail, therefore, claims through the tenant-in-tail; but the tenant-in-tail, having determined his right by his own conveyance, had not during his life a right to make an entry or bring an action to recover the land; and therefore the time would run only from the death of the tenant-in-tail. It is contended, however, that the first branch of the 3rd section comprehends this case: but, in our opinion, this is not so; for, by executing the conveyance, the tenantin-tail ceases to be entitled, and cannot therefore be said to have discontinued his possession while entitled thereto. It is unnecessary, after the decision in James v. Salter, to consider whether in strictness this case falls |