years by a lessee for years determinable on lives at a nominal rent, who, at the commencement of such holding over, falsely asserted that one of the cesteux que vies was alive, but omitted to pay the reserved rent, was not an adverse possession barring the entry or ejectment of the reversioner. So although the reversioner had notice of the cesser of the term, and granted a fresh lease to another person, who neglected to enter for more than twenty years. (Rex v. Inhabitants of Axbridge, 4 Nev. & M. 477.) The mere receipt of rent by a stranger, without colour of title, was not evidence of adverse possession against one who had the legal title, for it was no disseisin, but at the option of the latter, even although the stranger made a lease by indenture, reserving rent, unless he made an actual entry. (Bull. N. P. 104; 1 Roll. Abr. 659; and see Smith v. Parkhurst, Andr. 324; Jayne v. Price, 5 Taunt. 326; 1 Marsh. 68.) If there be a tenant at sufferance, and a stranger, not having any right to the land, make a lease to him by indenture, rendering rent, without putting the tenant by sufferance out of possession, and the tenant pay the rent to the stranger, that is not any disseisin to him who has the right. (1 Roll. Abr. 659, (C.) pl. 11.) So if a tenant at will made a lease for years, and the lessee entered, though the estate at will did not warrant the lease, it was only a disseisin at election. (Blunden v. Baugh, Cro. Car. 302.) For where a person gains a possession under a title consistent with that of the person having right, it is but a disseisin at election. (See 2 Sch. & Lef. 622; 1 Taunt. 599.) Before the stat. 3 & 4 Will. 4, c. 27, when there was a valid lease subsisting, the right of entry was preserved until the determination of the lease, although no rent had been received; (Orrell v. Maddox, Runn. Eject. App. No. 1;) and even the adverse receipt of rent for more than twenty years did not deprive the party of his right of entry on the determination of the lease, (Doe v. Danvers, 7 East, 299. See Bushby v. Dixon, 3 Barn. & C. 298, 304, 305,) although a void lease, or a term which had become attendant upon the inheritance for the benefit of the owner of it, did not prevent the running of the Statute of Limitations. (Taylor v. Horde, 1 Burr. 60.) But where an estate had been in lease, and A. entered and received the rent during the continuance of the lease, and remained in possession more than twenty years from the time of his entry, and another person claiming the estate within twenty years after the expiration of the lease brought an ejectment and filed a bill for a discovery, it was held that the possession was adverse, as a bill might have been filed by the parties claiming during the whole time the leases were in existence, and a demurrer to the discovery was allowed, and assistance in equity refused. (Cholmondeley v. Clinton, Turn. & Russ. 107.) 3 & 4 Will. 4, c. 27, s. 9. A disclaimer imports a renunciation by the party of his character of Disclaimer of tenant, either by setting up a title in another, or by claiming title in him- landlord's title. self. (1 Mann. & G. 139.) And if a tenant disavowed his landlord's title by attorning to another, and the landlord was apprised of it and acquiesced, the possession of his tenant became adverse, and the Statute of Limitations would have run against the landlord. (Hovenden v. Lord Annesley, 2 Sch. & Lef. 624.) Lord Redesdale observed, "The attornment of a tenant will not affect the title of the lessor so long as he has a right to consider the person holding the possession as his tenant. But as he has a right to punish the act of the tenant disavowing the tenure by proceeding to eject him, notwithstanding his lease, if he will not proceed for the forfeiture, he has no right to affect the rights of third persons, on the ground that the possession was betrayed; and there must be a limitation to that as to every other demand. But where there is no disavowal of the tenure, the mere nonpayment of rent by the tenant for a number of years will not bar the remedies of the landlord at the expiration of the term, as the possession of a tenant entering under a lease is lawful as against his lessor who was entitled to all his remedies for the rent." (2 Sch. & Lef. 625, 626.) The act of a tenant in setting up a title adverse to that of his landlord, in order to obtain the freehold, operates as a forfeiture of his term, and it is the same whether he does it himself, or assists another to do it. Whether he tries to get the freehold himself, or by collusion or connivance assists that result in favour of another, it operates equally as a forfeiture. Therefore where a termor, after 3 & 4 Will. 4, c. 27, s. 9. deserting the demised premises, delivered up the possession of them with the lease, to a party who claimed by a title adverse to that of the landlord, with the intent to assist him in setting up that title, and not that he should hold bona fide under the lease, it was held that the term was forfeited by such act of betraying possession. (Doe d. Ellerbrock v. Flynn, 1 Cr. M. & R. 137; 4 Tyrw. 619.) But a tenant for a definite term of years does not forfeit his term by orally refusing, upon demand of the rent made by his landlord, to pay the rent, and claiming the fee as his own. (Doe d. Graves v. Wells, 10 Ad. & Ell. 427.) In order to make a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of landlord and tenant; or to a distinct claim to hold possession of the estate, upon a ground wholly inconsistent with the existence of that relation, which by necessary implication is a repudiation of it. An omission to acknowledge the landlord as such by requesting further information will not be enough, nor will a mere refusal to pay rent. (Doe d. Williams v. Pasquali, Peake, N. P. C. 196.) When a landlord brings an action to recover the possession from a defendant who has been his tenant from year to year, evidence of the disclaimer of the landlord's title by the tenant is evidence of the determination of the will of both parties, by which the duration of the tenancy from its particular nature was limited. (10 Ad. & Ell. 435.) But though a lessee set up an adverse claim to the property in the premises he holds under the lease, yet that does not incapacitate him from maintaining possession under the lease, where the relation of landlord and tenant has not been actually abandoned. (Rees d. Powell v. King, Forrest, 19.) A tenant from year to year, who had agreed to buy his landlord's estate, having remained in possession for several years without paying either rent or interest on the purchase-money, the agent of the lessor applied to him to give up possession, to which he answered that he had bought the property and would keep it, and had a friend who was ready to give him the money for it. This was held to be no disclaimer, because it was not a claim to hold the estate on a ground necessarily inconsistent with the continuance of the tenancy from year to year. (Doe d. Gray v. Stanion, 1 Mees. & W. 695; 1 Tyr. & G. 1065. See Doe d. Williams v. Cooper, 1 Mann. & G. 135.) It was held, that payment of rent to another party without the consent or knowledge of the landlord, after an adverse possession of twenty-three years, did not amount to an attornment; and that the fraudulent act of a tenant in betraying the possession of his landlord by disclaiming tenure under him, and admitting a title in a third person, would not affect the landlord's title, so long as he had a right to consider the person as holding possession as tenant. (Meredith v. Gilpin, 6 Price, 146.) Payment of rent by a lessee to a lessor, after the lessor's title has expired, and after the lessee has notice of an adverse claim, does not amount to an acknowledgment of title in the lessor, or to a virtual attornment, unless at the time of payment the lessee knew the precise nature of the adverse claim, or the manner in which the lessor's title had expired, and such knowledge is a fact to be decided by the jury. (Fenner v. Duplock, 2 Bing. 10; 9 Moore, 38.) A tenant, though not permitted to deny the right of demising, may rely upon his landlord's title having expired. G. demised premises to D., who entered and paid him rent. During the term a third party, T., disputed G.'s title, and they agreed to be bound by the opinion of a barrister, who decided in T.'s favour. G. thereupon delivered up the title deeds, and permitted T.'s attorney to tell D., the tenant, that he must in future pay the rent to T. as his landlord. D. then paid rent accordingly, but G. afterwards distrained upon him for the same rent. On replevin, avowry, and plea in bar stating the above facts, it was held, that G.'s claim of title as landlord to D. had expired; that his conduct amounted to an admission of that fact; and that D. was not estopped from alleging it. And, per Lord Denman, C. J., that G. was estopped from setting up his relation of landlord against D., having himself induced D. to pay rent to another person. (Downs v. Cooper, 2 Q. B. 256.) On disclaimer, see Woodfall's L. & T., pp. 310-313, 8th ed. 10. No person shall be deemed to have been in possession of A mere entry not any land within the meaning of this act merely by reason of to be deemed poshaving made an entry thereon (y). (y) The defendant being in adverse possession of a hut and piece of land, the lord of the manor entered in the absence of the defendant, but in the presence of his family said he took possession in his own right, and he caused a stone to be taken from the hut, and a portion of the fence to be removed. It was held, that these acts were not sufficient to disturb the defendant's possession under this section. (Doe d. Baker v. Combes, 19 L. J., C. P. 306.) By stat. 21 Jac. 1, c. 16, it was enacted, that no entry should be made by any man upon lands, unless within twenty years after his right should accrue. An entry to avoid a fine with proclamations, though not authorized by the party in whose behalf it was made, is sufficiently ratified by an action of ejectment founded on it. (Doe d. Blight v. Pett, 11 Ad. & Ell. 842; 4 P. & Dav. 278.) By the stat. 4 & 5 Ann. c. 16, s. 14, it was enacted, that no entry upon lands should be of force to satisfy the Statute of Limitations (21 Jac. 1, c. 16), or to avoid a fine levied of lands, unless an action were thereupon commenced within one year after, and prosecuted with effect. (See 1 Wms. Saund. 319, n. (1); 10 B. & C. 848.) This clause in the act will have the effect of shortening the period within which an ejectment can be brought; for, under the statute of Anne, a party might enter just before the expiration of the twenty years, and commence his action within one year afterwards. session. Continual Claim. 11. No continual or other claim upon or near any land shall preserve any right of making an entry or distress or of bringing an action (z). (s) Previously to the enactment in this and the preceding section an actual entry made by one who had a legal right to enter on an estate, or by his agent duly authorized by power of attorney, if made peaceably and repeated once in the space of every year and a day, (which was called continual claim,) was deemed sufficient to prevent the right of entry from being tolled by a descent cast or discontinuance, or barred by the Statute of Limitations. (Litt. ss. 414, 415; Runn. Eject. 51, 52, 2nd ed.; Ad. Eject. 101, 3rd ed.; Ford v. Grey, 1 Salk. 285.) Actual entry was sufficient to keep alive the right of a person disseised, but a mere demand, without process or acknowledgment, was not sufficient against the Statute of Limitations. (Hodle v. Healey, 1 Ves. & B. 540.) No right to be preserved by con Coparceners, &c. coparcener, &c. others. 12. When any one or more of several persons entitled to any Possession of one land or rent as coparceners, joint tenants or tenants in common, not to be the posshall have been in possession or receipt of the entirety, or more session of the than his or their undivided share or shares of such land, or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land c. 27, 8. 12. 3 & 4 Will. 4, or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons, or any of them (a). Construction of this section. (a) This section has relation back as far as relates to the period of the act, and makes the possession of one coparcener, joint-tenant, or tenant in common, who has been in possession of the entirety, separate from the time of his coming into possession. Therefore where one tenant in common has been out of possession for twenty years prior to the passing of the statute, he is barred by sections 2 and 12 from bringing his action, but might have maintained it under section 15 within five years of the passing of the act, if the other tenant in common had not been in possession adversely to him at the time of the passing of the act. In 1799, D., M. and A., being entitled to a remainder in fee, as tenants in common, of lands then held by a tenant for life, D. and the tenant for life conveyed the third, in which D. had the remainder, to C., who thereupon entered into possession of the whole. In 1800, the tenant for life died, A. having died before. The heir-at-law of A. filed a bill in Chancery in respect of the land against C. In 1835, while the proceedings were going on, the said heir-at-law died, having devised to J. all his lands, &c., whether in his own possession or that of others, as far as he lawfully could, specifying those which he was seeking to recover from C. In 1836, the devisor's heir-at-law brought ejectment against C. for A.'s third part: it was held, that under sections 2 and 12 of this statute the defendant's possession could not be held to have been ever that of the other tenants in common, for that sect. 12 made the possession of tenants in common separate from the commencement of the tenancy in common, and not merely from the time of the act passing. That therefore sect. 2 would have barred the lessor of the plaintiff, but that his right was saved by sect. 15, the ejectment having been brought within five years of the passing of the act, and the possession of C. not being adverse to the other tenants in common, within the meaning of that section. (Culley v. Doe d. Taylerson, 11 Ad. & Ell. 1008; 3 P. & Dav. 538.) This statute is, to a certain degree, retrospective, as to the possession of tenants in common; and though before the act the separate possession of one coparcener, joint-tenant, or tenant in common, of the entirety, or more than his individual share of such land, was not adverse as against the owners of the other shares, yet, by the operation of the act, the possession, which was not adverse prior to that act, became by that act adverse as against tenants in common, who were not in possession. (O'Sullivan v. M'Swiney, 1 Longfield & T. 118, 119; Doe d. Holt v. Horrocks, 1 Car. & K. 566.) Since the passing of the act 3 & 4 Will. 4, c. 27, the possession of land by one coparcener cannot be considered as the possession of his coparcener; nor, consequently, can the entry of one have the effect of vesting the possession in the other. (Woodroffe v. Doe d. Daniell, 15 Mees. & W. 792.) Where a tenant in common had been in the exclusive possession of the rents of S. for more than twenty years, and an ejectment had been brought by another co-tenant in common, to which A. had taken defence, and on which no further proceedings were had, taking such defence is not conclusive evidence of adverse possession against A.'s co-tenant in common. (O'Sullivan v. M'Swiney, 1 Longfield & T. 111.) By this statute, actual possession by the enjoyment of the profits of lands, though not adverse in the old sense of the law, is, in itself, a bar and a transfer of the estate; and it is not necessary that this possession should be strengthened or corroborated by intermediate conveyances. (Burroughs v. M'Creight, 1 Jones & L. 290.) Lands were conveyed to a trustee and his heirs, in trust for five persons, as tenants in common in fee. For more than twenty years prior to the filing of the bill, four of the tenants in common had been, by their agent, in the uninterrupted and exclusive receipt and enjoyment of the rents and profits of all the lands. The trustee never, in any manner, interfered in the trust. It was held, that the title of the fifth tenant in common was barred by this statute, which has altered the rule that the possession of one tenant in common is the possession of the other. The case was not within the saving of the 25th section, for the defend ants had not received the rents under, but in opposition to, the trustees. (Ib.) Mere occupation by one of several tenants in common of an estate, if unaccompanied by exclusion, does not make him liable for rent to his cotenants. (M'Mahon v. Burchell, 2 Phill. C. C. 127; 1 Coop. 457.) One tenant in common of real property cannot maintain an action for money had and received against his co-tenant, his remedy being an action of account under the stat. 4 Ann. c. 16, s. 27. (Thomas v. Thomas, 19 Law J., Exch. 175; 14 Jur. 180.) As the only remedy given by the stat. 4 Ann. c. 16, s. 27, is an action, there is no right to relief in equity, unless the case be one in which such action would lie. An executor who had been cotenant in common with his testator of a farm which the latter had alone cultivated, claiming to be a creditor of the estate for a moiety of the profits, the court directed an action to be brought to try the right. (Henderson v. Eason, 2 Phill. C. C. 308; 15 Sim. 303. See Murray v. Hall, 7 C. B. 441.) Coparceners, joint-tenants, and tenants in common, having a joint possession and occupation of the whole estate, it was a settled rule of law that the possession of any one of them was the possession of the others or other of them, so as to prevent the statutes of limitation from affecting them; nor did the bare receipt of all the rents and profits by one operate as an ouster of the other. (Co. Litt. 243 b, n. (1), 373 b; Ford v. Grey, 1 Salk. 285; 6 Mod. 44; Br. Coparceners; 1 Moore, 868.) The possession of one coparcener was that of the other, so as to create a seisin in the other, and carry her share by descent to her heirs, although the other had never actually entered; (Doe v. Keen, 7 T. R. 386;) and entry by one coparcener, when not adverse to her companions, enured to the benefit of all. (Co. Litt. 243 b; Doe v. Pearson, 6 East, 173; Smith, 295.) But the possession of one heir in gavelkind was held not to be that of the other, where he entered with an adverse intent to oust the other. (Davenport v. Tyrrel, 1 Bl. R. 675.) 3 & 4 Will. 4, c. 27, s. 12. How tenants in common, &c. were affected by limitation. old statutes of POSSESSION OF YOUNGER BROTHER, &C. younger brother 13. When a younger brother or other relation of the person Possession of a entitled as heir to the possession or receipt of the profits of any not to be the posland, or to the receipt of any rent, shall enter into the posses- session of the sion or receipt thereof, such possession or receipt shall not be heir. deemed to be the possession or receipt of or by the person en titled as heir (b). (b) The effect of this section is illustrated in the judgment of the court in Jones v. Jones, 16 Mees. & W. 712, ante, p. 152. If a man, seised of certain lands in fee, had issue two sons, and died Prior state of the seised of such land, and the younger son entered by abatement into the law. land, the Statute of Limitations did not operate against the elder son, as the law intended that he entered claiming as heir to his father, being the same title as that by which the elder son claimed. (Litt. s. 396; Sharington v. Shrotton, Plowd. 306.) On proof that the sister of the plaintiff occupied the estate for twenty years, and that the defendant entered as her heir, her possession would be construed to be by curtesy and licence, to preserve the possession of the brother, and therefore not within the intent of the stat. 21 Jac. 1, c. 16. The presumption ceased if it appeared that the brother had been in the actual possession, and that he had been ousted by the sister. (Page v. Selby, Bull. N. P. 102; 2 Stark. on Ev. 220, 2nd ed.; Co. Litt. 242; Plowd. 298, 306.) In a case, it appeared that on the 3rd of April, 1800, L. D. died seised in fee of lands, and immediately on his death his second son entered into possession of them, being the devisee of such lands named in the will of his father, which was only attested by two witOn the 7th of December, 1805, the second son mortgaged those Lesses. S. |