CH. VIII. PART V. the Act. In Hodgson v. Hooper (1), which is believed to be the only case where any question as to the operation of the statute on tenancies at will reserving rent has directly arisen, the plaintiffs, who had formerly been in possession of a piece of waste, as they contended, under a grant of the freehold from the lord of the manor, brought ejectment against the defendants, who claimed. under a subsequent lord of the manor, to whom the plaintiffs had given up possession. It was held that in the circumstances there was no grant of the freehold, but that the plaintiffs had been in possession as tenants at will at a yearly rent of five shillings, which appeared to have been regularly paid. It seems to have been assumed that this tenancy was within the 7th section, and judgment was given for the defendant on grounds which would have been equally valid, had there been no rent; it was not, therefore, absolutely necessary to give a decision on the effect of the payment of rent; but Cockburn, C.J., treated it as strong evidence that the occupation continued permissive, and not of the nature contended for by the plaintiffs, and after other remarks on this point, he said: "We cannot but draw the inference that each successive payment of five shillings was a fresh acknowledgment that the land was held by the permission of the lord of the manor." This may be considered as a judicial opinion that each payment was an acknowledgment which, as such, set the time running afresh; but, as the remark was directed against the contention that the plaintiffs had been in possession as grantees of the freehold, it did not necessarily imply such a proposition, nor was that view necessary to support the decision, and, notwithstanding this remark, it is submitted that the more correct view of the operation of such payments is the one suggested above. Pecuniary acknowledgments of title. Where a person without apparent title has had posses (1) 3 E. & E. 149; 29 L. J. Q. B. 222. CH. VIII. sion of land for more than thirteen years, and then gives PART V. an acknowledgment by payment to the owner, the owner's right of action will have been barred, and, therefore, his title extinguished before the acknowledgment, and it seems clear that such payment cannot alone have the effect of restoring the title. However, such a payment, if made before the thirteen years have expired, might set the statute running afresh in one of two ways, either by showing that the land was held under a tenancy at will reserving rent, of which this rent was a payment, or as evidence that the previous occupation had been a tenancy at will, and that this tenancy at will was determined and a new tenancy created at the time when the payment was made. If a person enters on land under a lease which is invalid by the Statute of Frauds, a tenancy at will is created (1). But if a person enters on land under a lease which is void ab initio, and pays no rent, such a person is not a tenant at will, but is in possession without any title at all, and the statute will run in his favour from the date of his entry; but if any rent, however small, is reserved by the lease and paid by such a person, such payment creates a tenancy from year to year, and, as long as such. payment is made, the statute will not run (2). Entry under a void lease. at will determined It was at one time considered doubtful whether the Tenancies 7th section did not apply to tenancies at will which had actually determined before the passing of the Act 3 & 4 Wm. IV. c. 27 (3); the cases of Doe d. Bennett v. Turner (4), and Turner v. Doe d. Bennett (5), were considered (1) 29 Car. II. c. 3, s. 1. See Goodtitle d. Gallaway v. Herbert, 1 T. R. 680. (2) Per Lord Selborne, President and Governors of Magdalen Hospital v. Knotts, 4 App. Cas. 324, 335; Bunting v. Sargent, 13 Ch. D. 330. (3) Doe d. Stanway v. Rock, 4 M. & G. 30; Doe d. Goody v. Carter, 9 Q. B. 863; 2 Sm. L. C. 9th. ed. 763; and see Doe d. Angell v. Angell, 9 Q. B. 328, 359. (4) 7 M. & W. 226. (5) 9 M. & W. 643. before Act Wm. IV. 3&4 27 passed. CH. VIII. PART V. authorities that the section did so apply, because otherwise in those cases it would not have been necessary to discuss whether a new tenancy was or was not created. The point, however, was not taken in those cases by counsel or by the judges. It was ultimately settled that the section had no operation whatever on tenancies at will which had actually determined before the Act passed, and that in such a case time began to run from the determination of the tenancy (1). Where tenancy at will is If at the time when the Act 3 & 4 Wm. IV. c. 27 was passed, a tenancy at will was in existence which had lasted more than twenty-one years, or the twenty-one years expired in less than five years after the passing of the Act, the lessor was by the operation of the 15th section not barred till the end of the five years (2). Where a tenancy at will is actually determined before the thirteen years are expired, and a new tenancy at will determined is created, the 7th section does not apply to the first one created. tenancy, and its effect must be considered with reference only to the last tenancy at will created before the question of title is raised (3). and new Where no new will is created. It was decided in Randall v. Stevens (4) that, where a tenancy at tenancy at will was actually determined within twentyone years (while sect. 2 of 3 & 4 Wm. IV. c. 27 was in force), and the lessor actually took possession, even if only for a moment, and the tenant resumed possession, the case was unaffected by the 7th section. In such a case time runs not from the end of the first year of the tenancy, but from the subsequent dispossession, the title of the owner being revested by his taking possession, (1) Doe v. Bold, 11 Q. B. 127; and see Doe v. Page, 5 Q. B. 767; Doe v. Thompson, 6 A. & E. 721. (2) Doe d. Dayman v. Moore, 9 Q. B. 555. (3) Doe d. Bennett v. Turner, 7 M. & W. 226; 9 M. & W. 643; Doe d. Goody v. Carter, 9 Q. B. 863; Doe d. Stanway v. Rock, 4 M. & G. 30; Hodgson v. Hooper, 3 E. & E. 149; 29 L. J. Q. B. 222; Randall v. Stevens, 2 E. & B. 641; 23 L. J. Q. B. 68; Locke v. Matthews, 13 C. B. N. S. 753; 32 L. J. C. P. 98. (4) 2 E. & B. 641; 23 L. J. Q. B. 68. and the person who was tenant being from that moment in as a mere trespasser. It may also be considered as settled that, where a tenancy at will is actually determined more than a year after its commencement, and the tenant remains in possession without a fresh tenancy at will being created, time does not run from the actual determination of the tenancy, but from one year after the commencement of the tenancy at will; it runs, in fact, as if the actual determination had never taken place. This was clearly the opinion of the judges in Doe d. Bennett v. Turner (1), and Turner v. Doe d. Bennett (2), and of Erle, C.J., in Locke v. Matthews (3), and it was expressly so decided by the Court of Queen's Bench in Doe d. Goody v. Carter (4), and by the Judicial Committee of the Privy Council in Day v. Day (5); the doubts expressed on this point by the Court of Queen's Bench in Randall v. Stevens (6), and by Willes, J. (7), may now be disregarded. The words of the section mean that one of two alternatives, either the actual determination of the tenancy at will within a year of its commencement or the expiration of one year from its commencement, is enough to set the statute running, and it is in accordance with the general principles of the statute that, when once time has begun to run, the bar will not be postponed, and time set running afresh merely by the happening of an event which, if time had not been then running, would in itself have set it running; so that, if the year has expired before the actual determination of the tenancy, the actual determination of the tenancy has no effect whatever for the purposes of the statute. It will (4) 9 Q. B. 863. (5) L. R. 3 P. C. 751. (6) 2 E. & B. 650, 652. (7) Locke v. Matthews, 13 C. B. N. S. at p. 763; 32 L. J. C. P. 101. PART V. CH. VIII. CH. VIII. PART V. be seen, too, that if time began to run afresh from the actual determination of the tenancy at any time before the expiration of the thirteen years, it would follow that the bar would be postponed for twelve years merely by the lessor at will giving notice to determine the tenancy at any time during the period running against him, though such notice was in no way acknowledged or was even repudiated by the lessee at will, or by the lessee at will dying, or even by his alienating and so purporting to treat the property as his own, results which could not have been intended. What amounts to taking possession or creating a new tenancy-at will. Doe v. It has been held that where an owner went into a house in the possession of a trespasser, and took a stone out of the wall, saying that he thereby took possession of the whole house, but the owner did not actually turn out the trespasser, who continued in possession, the owner did not, by this transaction, set time running afresh in his favour, because, as he never turned out the trespasser, he never actually obtained possession himself, and his title therefore was not revested (1). If the occupier had been tenant at will, the decision that the title was not revested would still be applicable, but the owner would clearly have determined the tenancy; and, as there was nothing whatever done to create a new tenancy, the owner would have been equally barred. Where the owner has done some act determining the tenancy at will, the statute will not thereby be set running afresh unless the owner has at the same time resumed the possession of the property, or a new tenancy has been created. In Doe d. Groves v. Groves (2) the facts, so far as is material for the present discussion, were these. One William Hart became, on the death of his father in 1798, entitled as heir at law to a house and lands, the (1) Doe d. Baker v. Coombes, 9 C. B. 714; 19 L. J. C. P. 306. See Worssam v. Vandenbrande, 17 W. R. 53. (2) 10 Q. B. 486. |