But to entitle the husband to curtesy, there must have been issue of the marriage born alive during the life of the wife which might possibly have inherited the estate (o), and the marriage must not have been void, or avoided by a divorce (p).

Curtesy will also attach in respect of an equity of redemption (9) and to an estate limited to a wife for her separate use (r) if she dies intestate.

In the case of copyholds, curtesy is commonly allowed by the custom of the manor (s). In the case of a gavelkind land, the curtesy is of a moiety only, but attaches even where there is no issue. This curtesy ceases on the re-marriage of the husband (t).

The Married Women's Property Acts do not deprive a husband of his rights as tenant by the curtesy on the death of the wife intestate (u).

SECTION 7.

POSSESSION.

In the consideration of title we have hitherto confined our remarks to title by purchase or descent, but there is another mode by which a title to property may be acquired, viz., possession, and such title is now regulated by the Act for the Limitation of Actions and Suits relating to Real

(0) Co. Lit. 29 a.

(p) Rennington v. Cole (1617), Noy, p. 29. (9) Casborne v. Scarfe (1737), 1 Atk. 603. (r) Roberts v. Dixwell (1738), 1 Atk. 607. (8) Watk. Cop. 71.

(u) Hope v. Hope, [1892] 2 Ch. 336.

(t) Co. Lit. 30 a.

Property (a), which came into operation on January 1st, 1834, and the Act for the Further Limitation of Actions and Suits relating to Real Property (y), which came into operation on January 1st, 1879 (~). These two Acts are to be read and construed together, except so far as the first-named Act is repealed by the latter (a).

After January 1st, 1879, the period within which an entry or distress can be made, or an action or suit brought to recover land or rent, is limited to twelve years from the right having first accrued to the person making such entry or bringing such action. or suit, or to the person through whom he claims (b).

Adverse Possession.-The Real Property Limitation Act of 1833 abolished the old doctrine of Adverse Possession and possessio fratris. No person is to be deemed to have been in possession by reason of having made an entry; nor will a right be preserved by continual claim being made upon or near the land. The possession of the entirety by one of several coparceners, tenants in common, or joint tenants is not to be deemed the possession of all the persons entitled; nor is the possession of the younger brother or other relation of the heir to be deemed the possession of the heir (c).

Rent. The word " rent," as defined by s. 1 of the Act of 1833, does not include a conventional rent reserved on a lease for years so as to extinguish

(x) 3 & 4 Will. 4, c. 27.

(y) 37 & 38 Vict. c. 57.

(z) Ibid., s. 12.

(c) 3 & 4 Will. 4, c. 27, ss. 10-13.

(a) Ibid., s. 9.

(b) Ibid., s. 1.

the title of the lessor (d), but does include a tithe rent-charge in a lay impropriator or other rentcharge (e), and also quit-rent payable in respect of copyholds and customary freeholds (ƒ).

The recovery of arrears both of conventional and other rents is limited to six years (g); but this probably does not affect the liability of the original lessee to be sued on the covenant in the lease (h).

ACCRUAL OF RIGHT OF ACTION.

The great difficulty in applying the Statutes of Limitations, is to ascertain when the right of action under those statutes accrues. It is proposed for the purposes of this treatise to treat this point under eight rules or headings.

Rule 1: Dispossession.-" 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 such rent, and shall, while entitled thereto have been dispossessed, or have discontinued such possession or receipt, then such right shall be

(d) Grant v. Ellis (1841), 9 M. & W. 113. The lessor's right can only be extinguished by payment of rent to a third party under s. 9 of 3 & 4 Will. 4, c. 27, not by mere nonpayment of rent.

(e) Irish Land Commission v. Grant (1884), 10 App. Cas. 14; Jones v. Withers (1896), 74 L. T. 572.

(f) Howitt v. Earl of Harrington, [1893] 2 Ch. 497.

(g) 3 & 4 Will. 4, c. 27, s. 42; Conolly v. Gorman, [1898] I. R. 20.

(h) See Darby and Bosanquet, p. 199. The limitation for a specialty debt is twenty years under 3 & 4 Will. 4, c. 42, s. 3.

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" (i). Notwithstanding the express language of this section, it has been held that it is not sufficient that the original owner should have discontinued his possession. It is necessary, in order to extinguish his title, that there should have been actual exclusive possession for the statutory period by some one else (k). When there has been a series of trespassers, not whom has been in possession of the statutory period, but who claim through one another, the title of the original owner is barred (1). case, however, of possession by a series of independent trespassers, the owner is only barred if the possession is continuous (m), but if there is an interval between the termination of possession of one trespasser and the entry of the next, the right of action. of the owner accrues afresh (n).

one of

In the

Rule 2: Reversion subject to a Written Lease for Years. The right of a lessor to recover in ejectment accrues at the determination of the lease (o). It was decided in Archbold v. Scully (p) that time would not begin to run against a landlord upon rent

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

(k) Agency Co. v. Short (1888), 13 App. Cas. 793.

(1) Asher v. Whitlock (1865), L. R. 1 Q. B. 1.

(m) Willis v. Howe, [1893] 2 Ch. 545.

(n) Solling v. Broughton, [1893] A. C. 561.

(0) 3 & 4 Will. 4, c. 27, s. 3; Doe d. Davey v. Oxenham (1840), 7 M. & W. 131.

(p) (1861), 9 H. L. Cas. 360.

being withheld, but only upon its being paid to another. Thus, a trespasser in possession may acquire a possessory title as against the lessee, and be entitled to continue in possession during the residue of the term, but the landlord will, nevertheless, have twelve years from the determination of the lease during which he may bring ejectment.

If, however, the lessee in possession pays the rent to some third party wrongfully (q) claiming to be entitled to such rent in reversion immediately expectant on the determination of the lease, and no payment in respect of rent is subsequently made to the person rightfully entitled thereto, the right of the lessor accrues "at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid " (r). It is essential that the third person should receive the rents as for himself, and if he merely collects them as agent for whoever may eventually turn out to be the true owner, the person rightfully entitled may subsequently ratify this agency, and is not barred by the statute (s). A possessory title acquired by a trespasser as against the lessee does not vest the term in the trespasser so as to render him in effect an assignee of the lease (t). The term remains, it is conceived, in the lessee who has been ousted, but since he has lost all title by dispossession he cannot

(q) I.e., without any real title, not necessarily without any improper intention. See Williams v. Pott (1871), L. R. 12 Eq.

149.

(r) 3 & 4 Will. 4, c. 27, s. 9.

(8) Lyell v. Kennedy (1889), 14 App. Cas. 456, 457.

(1) Tichborne v. Weir (1893), 67 L. T. 635.