TITLE BY PRESCRIPTION AND BY NON-CLAIM.

* S. 193. 2. Where

have passed

2. If the owners of a particular estate, as for life, in dower, by the curtesy, or in fee-tail, 'were' barred of the judgment shall right of possession by a recovery had against them, through their default or non-appearance in a possessory action.

against owner of particular estate by default.

judgment

passed upon

possessory ac

3, 4. Thirdly; in case the right of possession' were' barred 3, 4. Where by a recovery upon the merits in a possessory action; or shall have lastly, by the former.' Statutes of Limitations, a claimant the merits in a in fee-simple might' have a mere writ of right; which tion, mere writ of right lay, 'was' in its nature the highest writ in the law, and 'lay' concurrent only of an estate in fee-simple, and not for him who had a actions where less estate. This writ 'lay' concurrently with all other real the fee-simple actions, in which an estate of fee-simple might' be re- lies after them.

with all real

ered; and it

visable in such

covered; and also after them, being as it were an appeal to the mere right, when judgment had been had as to the possession in an inferior possessory *action. But though a *S. 194. writ of right might' be brought, where the demandant 'was' entitled to the possession, yet it rarely was' advis- But rarely ad able to be brought in such cases, as a more expeditious and case. easy remedy' was' had, without meddling with the property, by proving the demandant's own, or his ancestor's, possession, and their illegal ouster, in one of the possessory actions. But, in case the right of possession 'were' lost by length of time, or by judgment against the true owner in one of these Where no other remedy. inferior suits, there was' no other choice; this 'was' then the only remedy that 'could' be had (a).

The case was compromised by a money payment. There was a similar case to the above in England, under the same state of the law as in Ontario. Remington v. Cannon, 12 C. B. 1-18.

(a) In the progress of this action the demandant alleged some seisin of the lands in himself, or else in some person under whom he claimed, and then derived the right from the person so seised to himself; to which the tenant 'might' answer by denying the demandant's right, and averring that he has more right to hold the lands than the demandant has to demand them: and this right of the tenant being shown, it then puts the demandant upon the proof of his title, in which if he failed, or if the tenant had' shown a better, the demandant and his heirs were perpetually barred of their claim; but if he could' make it appear that his 'was' superior to the tenant's, he recovered the land against the tenant and his heirs forever.

It will be observed how, having abolished the fictitious proceedings in eject

'It will thus have appeared, that according to various circumstances, a person entitled had to assert his rights in various ways; either by entry, or by real action, mixed, possessory, or droiturel, as the case might be, and though he failed in an inferior remedy, he might yet resort, as a general rule, to one superior; as before mentioned, however, statutes in early times imposed a limitation to the time within which rights should be asserted, and remedies applied, which time varied according to the circumstances of the case. Sixty years was the utmost period allowed even on the final remedy by writ of right, and this causes Blackstone to say, that "the possession of land in fee uninterruptedly for sixty "years is a sufficient title against all the world, and cannot Sixty or more" be impeached by any dormant claim whatever;" an obseryears' possesvation now admitted to be incorrect, for as said, as to the old law, by Lord St. Leonards: (a) "It was possible that an estate might be enjoyed adversely for hundreds of years, and yet at last be recovered by a remainder-man; for in

sion may not

confer a title.

ment in the names of John Doe and Richard Doe, we have reverted to a more simple practice, bearing more analogy to the ancient proceedings on the writ of right; the mode of trial, however, varies considerably; for on the writ of right, wager of battel and trial by battel were allowed; on which trial "the Judges of the "Court of Common Pleas attended in their scarlet robes, at sunrise, and a bar was also prepared for the learned sergeants at law;" the combat was had by champions for the litigants, and in the civil and criminal courts they were clad in a species of armour and armed with batons and buckers, though in the courts military they fought with sword and lance; and in those courts as also in appeals of felony, the parties fought in person.' The battel being begun, the combatants were bound to fight till the stars appeared in the evening; and, if the champion of the tenant could defend himself till the stars appeared, the tenant prevailed in his cause; for it is sufficient for him to maintain his ground, and make it a drawn battel, he being already in possession; but if victory declared for either party, for him was judgment finally given.

Wager of battel was abolished by Imp. St. 59 Geo. III. c. 46. The last case known in which it was allowed, on a writ of right, was in 1812, in a suit as to the Angell property, and in a case of appeal of felony in 1818, 1 B. & Ald. 405 -wagers of battel and trial by battel were only allowed in the courts martial, in appeals of felony, and on the writ of right in real actions. In other cases, as if proceedings were taken against a debtor in a civil suit, it was never competent for him on denying the plaintiff's claim, to tender to the plaintiff the mode of trial by battel. (a) Sugden Stats. p. 4.

stance, suppose an estate to have been limited to one in tail, with remainder over to another in fee, and the tenant in tail to have been barred of his remedy by the Statutes of Limitation; it is evident that as his estate subsisted, the remainder-man's right of entry could not take place till failure of issue of tenant in tail, which might not happen for an immense number of years." Other instances might be put, in which sixty years' possession, pending the continuance of the life of the tenant in tail might not then, or now, confer a title even against the issue in tail, as hereafter mentioned in treating of ss. 26, 27, 28, if the possession has been under some conveyance of the tenant in tail, and so not strictly adverse (a).'

mixed actions

cept in dower

by R. S. O. c.

'Under the Stat. 4 Wm. IV., Rev. Stat. O. c. 51, s. 75, all Real and real and mixed actions are abolished, except the writ of dower, abolished exof dower unde nihil habet, and ejectment. A reference to and ejectment this section will shew the extraordinary actions applicable 51, c. 75. to the various positions in which the demandant and tenant might stand in regard to the property. As real and mixed actions were thus abolished, with the exceptions of the actions of dower and ejectment, and as ejectment could not be brought except where there exists a right of entry, the necessity arose for providing against the right being tolled or taken away by descent cast, discontinuance, or warranty (b); it was therefore provided that no right of entry or action should be $. 10 prevents right of entry thereby tolled, R. S. O. c. 108, s. 10. Had the statute not being tolled by thus provided when it left ejectment as the only remedy, the discontinuparty entitled might have been wholly defeated by the common law effect of a descent cast, discontinuance or warranty, as before explained. For instance, quiet possession by a disseisor and a descent cast would have conferred a title, for the disseised was thereby deprived of his right of entry (c), and without such right ejectment will not lie. So again, if (b) Ante, s. 176, p. 419.

(a) See also ante, s. 191, p. 422, note a.

(c) Ante, p. 422, note a.

descent cast,

ance or war

ranty.

tenants in tail in possession discontinued by feoffment in fee (the tortious effect of which was not abolished till Stat. 14 & 15 Vic. c. 7), this would also have taken away the right of entry, and would have been a virtual bar to those in remainder and reversion leaving them without a remedy (a).'

'A further object in the statute was to limit actions to 10 years from the right accruing, and extinguish the right itself afterwards, except in certain cases of disability, and wild lands; and therefore not only were real actions abolished, under which, as before explained, under certain circumstances, only sixty years would bar the action, but it was enacted that no person should be deemed to be in possession, merely by reason of having made an entry, and that no continual or other claim should preserve any rights of making an entry, R. S. O. c. 108, or distress, or of bringing an action, R. S. O. c. 108, ss. 8 & to mere entry 9. The effect theretofore of such entry or claim was, among other things, to give a new right, and prevent the Statutes of Limitations from running (ante, s. 175).'

88. 8 & 9. As

and continual claim.

Doctrine of non-adverse possession.

'Under the former Statutes of Limitations, the time limited, did not begin to run except from adverse possession, and great difficulties occurred in determining whether the possession of the party claiming under the statutes, was or was not adverse to the party otherwise entitled. This doctrine of non-adverse possession is yet important in cases of written leases under four dollars excepted out of s. 5, cl. 5; and moreover, the present statute cannot be understood without adverting to it. As a general rule it may be laid down, that possession was not adverse when the parties claimed under the same title; when the possession of one was consistent with the title of the other; or when the party claining title had never in contemplation of law heen out of possession: the mere fact of a tenant remaining in possession after the tenancy had expired was not deemed an adverse possession,

(a) Ante, p. 422, Hayes' Con. 238.

neither was the possession of a person let in under a contract to purchase, though default were made: the possession of one joint tenant, parcener, or tenant in common was deemed the possession of the co-tenants or co-parceners, so that even the receipt by one of all the profits was not sufficient to cause the possession to be deemed adverse: a tortious actual ouster in deed, or what was tantamount thereto (a), was requisite to make the possession adverse, or such a state of facts as that an actual ouster would be presumed to have taken place; thus, if the co-tenant not only received the whole rents, but on being asked for payment of his co-tenant's share, refused payment and denied the right, it was held to be evidence of an ouster: so also sole possession for forty years by one tenant in common being unexplained, was held sufficient for a jury to presume actual ouster. The possession of a relative of the heir was not always deemed adverse to the heir; as when a man seised in fee died leaving two sons, and the younger entered by abatement, the statute did not run against the heir at law; for the law presumed the younger son entered, claiming to uphold and preserve the title of the ancestor which was that by which the elder son claimed: but had the elder son entered, and then been disseised by the younger, the possession of the latter would have been adverse.'

stat. to do

questions of

possession.

'The object of the statute was to do away with the doctrine Object of the of non-adverse possession, as above explained, and the diffi- away with culties attending it; and the general purport of the Act is to non-adverse make the statute run from the time of the right first accruing, whether the possession were or were not adverse according to the old laws. It provided, therefore (s. 4), that no person S. 4. Limits remedy 10 shall make an entry, or distress, or bring an action to recover years from right first acany land or rent, but within 10 years next after the first ac- cruing. S. 11. cruing of such person's own right, or if he claims through an- one co-tenant other from the first accruing of the right of such other, (clauses sion of the

(a) 2 Smith Lg. cases, p. 561, note, 5th ed., and P. 583.

Possession of

not the posses

other.