Account.

ties, however, arising from the nature of the property, can now be overcome by the court directing a sale under the Acts before mentioned (a).' Tenants in common properly take by distinct moieties, and have no entirety of interest, and therefore there is no survivorship between them: their other incidents are such as arise merely from the unity of possession, and are, therefore, the same as appertain to joint-tenants merely on that account, such as being liable to reciprocal actions of account by the statute 4 Anne, c. 16, s. 27 (b); for by the common law, no tenant in common was liable to account with his companion for embezzling the profits of the estate. An account is more conveniently had in equity that at law; but as the statute of Anne alone gives the remedy, it would seem no account could be had in equity unless where an action would also lie at law under that Act Ejectment and (c). If one tenant in common actually turns the other out of possession, however, an action of ejectment will lie against him, and trespass also will lie (d). Ejectment and trespass will also lie under circumstances equivalent to actual ouster, as by denial of the right of entry to the co-tenant, and adverse continuance in possession of the others. If one tenant in common has been in possession of the whole without excluding his co-tenant, he will not be chargeable with occupation rent, but it is otherwise in case of exclusion, or what is tantamount to it. On receipt of rent from tenants, also, he would have to account. Where there has been mere pos

trespass.

a partition was carried out by building up a wall in the middle of the house. After the commission was executed in Turner v. Morgan, the defendant excepted on the ground that the commissioners allotted to the plaintiff the whole of the chimneys, all the fire-places, and all the conveniences in the yard. The Lord Chancellor overruled the exception, saying he did not know how to make a better partition; that he granted the commission with great reluctance, and it must be a strong case to induce the court to interpose, as the parties ought to buy and sell.

(a) In re Dennie, 10 U. C. R. 104. See St. in appendix, and post c. 14. (b) Gregory v. Connolly, 7 U. C. R. 500; Thomas v. Thomas, 19 L. J. Ex. 175, and see Sandford v. Ballard, 33 Beav. 401, 30 Beav. 109, S. C.

(c) Henderson v. Eason, 2 Phill. C. C. 308. (d) Murray v. Hall, 7 C. B. 441.

session, without exclusion or its equivalent, it would seem he need not account for timber cut and sold; but if willing to account for his beneficial enjoyment, he may be allowed in certain cases, as on partition, for improvements made by him, but not otherwise.' (a)

But as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions, unless in the case where some entire or indivisible thing is to be recovered), these are not applicable to tenants in common whose interests are distinct, and whose titles are not joint but several.

by which

mon may be

Estates in common can only be dissolved two ways: 1. By of the modes uniting all the titles and interests in one tenant, by purchase estates in comor otherwise; which brings the whole to one severalty; 2. dissolved. By making partition between the several tenants, as before explained in regard to joint-tenants, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession.

'And this finishes our enquiries with respect to the nature of estates, but before dismissing this last division of them, what has been said before should be again mentioned, that the entry of one joint-tenant was the entry of all; and it is laid down also that at common law the possession of one parcener, joint-tenant, or tenant in common, was the posses- Possession of sion of all; so that short of actual ouster, or of what was the other to, equivalent thereto, the Statute of Limitations before 4 Wm. prevent Stat. IV. did not begin to run in favour of the tenant in sole pos- by R. S. 0. from running, session against the co-tenant or coparcener; this is altered 108, s. 11. as hereafter explained; R. S. O. c. 108, s. 11.'

(a) Rice v. George, 20 Grant, 221.

one not that of

*S. 195.

Mere possession.

* S. 196.

CHAPTER XIV.

OF THE TITLE TO THINGS REAL, IN GENERAL.

I COME now to consider, lastly, the *title to things real, with the manner of acquiring and losing it.

There were 'formerly' several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

1. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or shadow or pretence of right, to hold and continue such possession. This may happen when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of the actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of *the heir, or after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. 'So again if a stranger take possession of vacant land in the lifetime of him entitled to possession.' In all which cases, and many others that might be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner could put an end to, formerly,' by a variety of legal remedies, as will hereafter more fully appear. But in the meantime, till some act be done by the rightful owner to divest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title ‘in fee' in the possessor, 'and the interest of such possessor may pass by devise or descent, and is sufficient whereon to main

property.

tain trespass or ejectment against any trespasser or person not claiming as, or under, the rightful owners' (a). It may also, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. 2. The next step to a good and perfect title is the right The right of possession. of possession, which may reside in one man, while the actual possession is not in himself but in another. For if a man be disseised, or otherwise kept out of possession by any of the means before mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, 'till barred by time,' by entering upon the disseisor, and, 'without breach of the peace' (b), turning him out of that occupancy which he has so illegally gained, 'or by action of ejectment.' 'Sir W. Blackstone goes on to state, among other things, Right of that the possession and right of possession may be gone, and still the owner retain the right of property, whereon he might in a real action recover the lands, and he says, "*if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of possession and right of property. If the disseisor dies, and the lands descend to his son, 'which was termed a descent cast,' the son gains an apparent right of possession, but I still retain the actual right both of possession and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain *nothing but the mere right of property. And even this right of property will fail, or at least it will be without a remedy, unless I pursue it within the space of sixty years: and one man may have the possession, another the right of possession, and a third the right of property."

'The law, as stated by the learned commentator in this

(a) Asher v. Whitlock, L. R. 1 Q. B. 1. (b) ante p. 175.

*S. 198.

* S. 199.

chapter, is so changed by modern legislation that it will here be but briefly alluded to, especially as it will be considered hereafter at length. The following will suffice to show how complete is the change: thus, in the case above put, at present the descent to the son would give him no better right than his ancestor the disseisor had, for by R. S. O. c. 108, s. 10, no descent cast defeats or tolls a right of entry or action, and I am in no worse position than before the death of the ancestor. If also I fail to enforce my right for even ten years, I am barred entirely, unless in exceptional cases, and retain no right of property distinct from right of possession; for by section 15 of the last mentioned Act, when my right of possession against the disseisor or his son claiming under him is gone, all other right and title is extinguished. Formerly, certain actions founded on the right of possession might have been brought within thirty years; after which period such actions were barred, but the owner could still resort to a real action droiturel, founded on the right of property, at any time within sixty years. A right of property cannot now exist as a mere right as formerly, nor be of avail unless accompanied with an existing right to possession, present or future (a).

(a) Hayes Con. 268, and post chapter 21.