feoffee enters before livery of seisin, he is not a disseisor. (2 Rep. 55.) Wherever there is a disseisin, the possession of the disseisor will be considered adverse, and the party must pursue his remedy within twenty years from the act constituting the disseisin. (Butl. Co. Litt. 330 b, n.) There may be an unlawful possession which does not amount to a disseisin. (Doe v. Gregory, 2 Ad. & Ell. 14; 4 Nev. & M. 308. See 2 Mees. & W. 904. As to disseisin, see Taylor v. Horde, 1 Burr. 108; Doe v. Lynes, 3 B. & C. 388; Williams d. Hughes v. Thomas, 12 East, 141; Roscoe on Real Actions, 61-63; 2 Prest. on Abst. 284, et seq.) A feoffment made after 1st October, 1845, has not any tortious operation. (8 & 9 Vict. c. 106, s. 4.)

3 & 4 Will. 4,

c. 27, s. 2.

Great practical difficulty had arisen under the former statutes in deter- Adverse possesmining what is adverse possession, and when it shall be considered to have sion. begun. This must generally be left as a question of fact for the jury; but there are some rules of law (præsumptiones juris et de jure) which absolutely prevented the possession from being considered adverse, and the expediency of which was very questionable, as they did not seem necessary for preserving rightful claims, and they greatly impaired the healing tendency of the statutes of limitations. (See 1 Real Prop. Rep. 47.) The above statute has for the most part put an end to questions of this kind, (see ante, s. 2, pp. 150, 151, n.,) but still there will be cases arising under the 9th section, which must be decided with reference to some of the old rules as to adverse possession.

Where one person held an estate on the joint account of himself and another, or by the permission of the real owner, and without claiming any inconsistent right, the possession is not adverse, and the original title is not affected. Thus, where one holds lands as lessee, his possession is in contemplation of law that of the lessor. (1 Wils. 176; 3 Wils. 521.) For length of possession during a particular estate, as under a lease for lives, as long as the lives are in being, gives no title; but if the tenant hold over for twenty years after the death of cestui que vie, such holding over will in 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.) As to the effect of non-payment of rent since the stat. 3 & 4 Will. 4, c. 27, see ante, p. 156, post.

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. Rawsterne, 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. & Ad. 738.)

In formedon on the descender, pleas, that the title and cause of action did

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

not first descend or fall by force of the gift within twenty years next before the suing out of the original writ, were held good, although some of such pleas did not state that the donee or any of the issues in tail had ever been out of possession. To a plea that the title did not first descend or fall by force of the gift within twenty years next before the suing out of the original writ, the demandant replied that the title first descended, and fell to him the demandant, within twenty years. This replication was held bad on general demurrer in the Common Pleas, and the Exchequer Chamber declined to reverse the judgment. (Tolson v. Kaye, in error, 6 Man. & G. 536. See Doe d. Daniel v. Woodroffe, 10 Mees. & W. 633; 16 Ib. 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 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 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.

Period of Limitation fixed.

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.)

c. 27, s. 2.

3 & 4 Will. 4,

The stat. 21 Jac. 1, c. 16, ran against the lord of a manor as well as against Encroachments any other person. Hence, if a house, &c., be built upon the waste, the lord from waste. 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 stat. 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 afterwards 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.) Where 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 No 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. 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.) If a licence be given by a commoner, by parol, to build a cottage on a common, he cannot maintain an action for the encroachment, although no sufficient common is left. (Harvey v. Reynolds, 12 Price, 724; 1 C. & P. 141.) To trespass on the case by a freeholder having right of common against a defendant for an encroachment, a plea of leave and licence was held to be supported by evidence that the plaintiff had permitted a former encroachment by the defendant, the plaintiff being then under age, and had since, when of full age, countenanced a further encroachment by expressing his assent, and requiring an increase of the rent or annual acknowledgment paid by the defendant. (Ib.) 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 P. 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. 332.) When premises have been inclosed from the waste with the knowS.

M

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

Encroachment by tenant adjoining

landlord's estate.

Right conferred by twenty years' possession.

ledge 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 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 puis 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 twentynine 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. 45, 46.) That 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 inclosure 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. 44.)

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.)

In ejectment the lessor of the plaintiff relied on her own possession for thirteen years, and her husband's before her for eighteen years, but in so doing showed that her husband died leaving children. The defendant, in whom the legal estate was before the twenty years, had turned the lessor of the plaintiff out of possession. It was held, first, that the possession of the lessor of the plaintiff, not being connected by right with that of her husband, sect. 34 of stat. 3 & 4 Will. 4, c. 27, did not give her the right of possession against the defendant. (Doe d. Carter v. Barnard, 13 Jur. 915; 18 Law J., QB. 306. See Doe d. Humphrey v. Martin, 1 Car. & M. 32; Doe d. Hughes v. Dyball, 3 Car. & P. 610.) Possession is primâ facie evidence of title, and,

no other interest appearing in proof, evidence of a seisin in fee. But in this case the lessor of the plaintiff not only proved her own possession, but that of her husband before her, for eighteen years, which was primá facie evidence of his seisin in fee; and as he died in possession, and left children, it was prima facie evidence of the title of the heir, against which the possession of the lessor of the plaintiff for thirteen years could not prevail; and therefore she had proved the title to be in another, of which the defendant was entitled to take advantage.

An adverse possession of twenty years is not only a negative bar to the plaintiff's recovery in ejectment, but takes away his right of possession and gives a positive title to the opposite party; (Runn. Eject. 55, 2nd ed.;) therefore, 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.) 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. Statements made by a deceased person while in possession of property are in themselves original evidence, if they go to cut down his interest in it. A declaration by a possessor of land, that he held "for life-interest," does not necessarily admit that the right of possession would, immediately on his death, accrue to the reversioner, for one or more life interests might exist consistently with the words used. (Doe d. Welsh v. Langfield, 16 Mees. & W. 497.) A party having a legal estate cannot convey it away to another by equivocal acts which amount to an admission of title in another. But where the party's title rests merely on the Statute of Limitations, his acts may amount to an admission that he held as tenant to another. (Doe d. Groves v. Groves, 10 Q. B. 491.) The acts in pais, which bind parties by way of estoppel, are but few, and these acts are of notoriety, not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like. (Co. Litt. 352 a.) Whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed. (Lyon v. Reed, 13 Mees. & W. 285, see p. 309. See Nickells v. Atherstone, 10 Q. B. 944.) Titles would be placed in uncertainty and peril by the extension of the doctrine in Thomas v. Cooke, 2 B. & Ald. 119. The doctrine of this and subsequent cases as to what constitutes a surrender by operation of law within the stat. 29 Car. 2, c. 3, s. 3, will be taken to be law until it shall be overruled by a court of error. (Davison v. Gent, 1 H. & N. 744; 3 Jur., N. S. 342; 26 L. J., Exch. 122.) 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

3 & 4 Will. 4,

c. 27, s. 2.