there had been actual wrongful possession for the statutory PART V. period. This point may have considerable importance with regard to mines, for, if an owner in possession grants the minerals to another, retaining possession of the surface, and neither the grantee nor any one else works them, the question arises whose would the mines be at the end of twelve years. Mere non-user of mines, we have seen (1), is no evidence of abandonment of possession, but in those cases the persons of whose abandonment of possession there was held to be no evidence had been originally in actual possession of the mines by having been in possession of the surface before the mines were severed, and such possession was held to have continued notwithstanding non-user. But the cases do not go so far as to say that any one can be considered in possession of mines. as a distinct inheritance from the surface, unless the possession was either actual or had been commenced by possession of the surface before the severance. However, it would seem that the grantor could not be held to be in possession of the minerals by virtue of his possession of the surface after he had by his own act severed the minerals from the surface and so made each a distinct hereditament. The case may be compared to that of a man who, being owner of a whole close of land, aliens a part of it. So long as he is owner of the whole, the actual occupation of a part may be considered an act of ownership over the entirety, but, when he has by his conveyance bounded himself off from a certain portion, he cannot surely be said to be in possession of that portion by remaining in occupation of the rest, if after the time of conveyance he never sets foot on the portion granted away. It would follow, therefore, on the principle laid down above that, as there was no possession to be protected, time would not run against the grantee who has the right to the possession. (1) Part V. Chap. III. p. 296. CH. IV. Mines. PART V. Receipt of rents by agent. In the case of Keyse v. Powell (1) it seems to have been considered that, if a lessee of mines did not enter and work them for the statutory period of limitation, his right would be barred at the end of the period, even though the lessor had not worked the mines in the meantime, the reason being that in such a case the lessee would only have an interesse termini, and that no estate would be transferred to him, the whole estate in the mines remaining vested in the grantor. It is submitted, however, that even in such a case the statute would not be a bar to the right of the lessee, as the lessor, though having in law the estate vested in him, would not have actual possession of the mines such as the statute is intended to protect. Where a person commences to receive the rent of property as agent for the owner, his subsequent receipt of the rent is in law receipt by the owner until it is proved that the character in which he has received the rent is changed (2). In the case of Lyell v. Kennedy (3), B., the owner in fee of certain property, died intestate in 1867. A., who had during the life of B. received the rents as her agent and paid them into a separate account at his own bank, continued to receive the rents as before, and stated that he received them as the agent and receiver for the true heir, whoever he might be; in 1880, A., having continued all along to receive the rents, claimed to be in receipt of the rents for himself. It was held by the House of Lords, in an action of ejectment which was brought in 1881 against A. by C. who claimed through the heir of B. that the acts of A. in receiving the rents after the death of B. could not dispossess the heir of B. either under the 2nd or 3rd or 8th section of 3 & 4 Wm. IV. c. 27, that A. was (1) 2 E. & B. 132; 22 L. J. Q. B. 305. (2) Smith v. Bennett, 30 L. T. N. S. 100. Lyell v. Kennedy, 14 App. Cas. 437. (3) 14 App. Cas. 437. never in actual possession for himself till 1880, that no action could have been brought against him till 1880, when he claimed the property for himself, that the heir of A. had been in possession from 1867 to 1880, and that the right of C. was not barred. The principle governing the decision in Lyell v. Kennedy was applied in Ireland in the case of McAuliffe v. Fitzsimons (1). In that case lands held by the defendant on a yearly tenancy were devised by the lessor to A. for life with remainder to the issue of A. as A. should appoint. A. died in 1872, having appointed the lands in question to B., and having devised other lands to C. on trust. After A.'s death the defendant paid rent to C. for the lands which were the subject of the action, and C.'s agents gave receipts for the rent as due to the "representatives" of A.; B. died in 1879, having devised the lands to D.; after 1879 the defendant paid no more rent to any one. In an action for arrears of rent brought in 1888 by C. and D., the defendant did not require any question to be left to the jury, and a verdict was directed for both plaintiffs for six years' rent; on motion to enter the verdict for the defendant, the Court entered judgment for D. alone, and held that there was evidence from which the jury might find that the defendant, to the knowledge of C.'s agents, paid rent to them in the belief that they were acting for the true owner, and that D. within a reasonable time adopted and ratified their acts and that there had been no dispossession of B. or D. (1) 26 L. R. Ir. 29. PART V. CH. IV. STATUTES OF LIMITATIONS. CH. V. CHAPTER V. FUTURE ESTATES. (Fourth Branch of 3 & 4 Wm. IV. c. 27, s. 3; 5th section of 3 & 4 Wm. IV. c. 27; 2nd section of 37 & 38 Vict. c. 57; 20th section of 3 & 4 Wm. IV. c. 27.) PART V. THE fourth branch of the 3rd section of 3 & 4 Wm. IV. c. 27 deals with future estates, whether created by deed or will. The 2nd section of 37 & 38 Vict. c. 57 (which is substituted for and is an enlargement of the 5th section of 3 & 4 Wm. IV. c. 27), and the 20th section of 3 & 4 Wm. IV. c. 27, bear so much on the construction of this branch that it will be well to consider them together. 4th branch The fourth branch of the 3rd section of 3 & 4 Wm. of 3rd sec- IV. c. 27 is as follows: tion of 3 & 4 Wm. IV. c. 27. 2nd section of 37 & 38 "When the estate or interest claimed shall have been an estate or interest in reversion or remainder or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession." The 2nd section of 37 & 38 Vict. c. 57, which has taken Vict. c. 57. the place of 3 & 4 Wm. IV. c. 27, s. 5, is as follows:"A right to make an entry or distress or to bring an action or suit to recover any land or rent shall be deemed to have first accrued, in respect of an estate or interest in reversion or remainder or other future estate or CH. V. interest, at the time at which the same shall have become PART V. an estate or interest in possession, by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof or such rent shall have been received, notwithstanding the person claiming such land or rent, or some person through whom he claims, shall, at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such land or in receipt of such rent; "But if the person last entitled to any particular estate on which any future estate or interest was expectant shall not have been in the possession or receipt of the profits of such land, or in receipt of such rent, at the time when his interest determined, no such entry or distress shall be made, and no such action or suit shall be brought, by any person becoming entitled in possession to a future estate or interest, but within twelve years next after the time when the right to make an entry or distress or to bring an action or suit for the recovery of such land or rent shall have first accrued to the person whose interest shall have so determined, or within six years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of those two periods shall be the longer; and if the right of any such person to make such entry or distress, or to bring any such action or suit, shall have been barred under this Act, no person afterwards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will or settlement, executed or taking effect after the time when a right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent shall have first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress or bring any such action or suit to recover such land or rent." |