CH. VIII. premises in question, and from that time lived on the PART V. premises, first with his mother and afterwards with her and her second husband, the defendant, till 1805; William Hart then left, but his mother and the defendant continued to reside on the premises, and between 1805 and 1841 William Hart occasionally resided two or three weeks at a time on the premises as a member of the family, and he so resided at the death of his mother in 1841, and for three weeks afterwards. In 1842, at the request of the defendant, William Hart executed a mortgage of the premises to the plaintiff, the plaintiff's solicitor saying that the mortgage was not good without his concurrence, and the money advanced on the mortgage was paid to the defendant with William Hart's assent. The defendant remained in possession; and on ejectment being brought by the mortgagee in 1846, Coltman, J., directed the jury to find a verdict for the plaintiff, and, on an application by the defendant for leave to enter a nonsuit, the Court of Queen's Bench, who had power to draw inferences of fact, held that the mortgagee's title was good. Denman, C.J., and Patteson, J., with the concurrence of Coleridge, J., based their decision on the ground that the defendant's acts amounted to an admission of tenancy. Erle, J., said: "The lessor of the plaintiff was clearly entitled and his title recognized in the plainest manner by the defendant. But the defendant's answer is that he occupied as apparent owner for twenty years. To this the reply is that the real owner came now and then and lived with him. If I had been in the place of the jury, I should have held that this showed that the defendant was in reality tenant at will." The mere fact that the defendant's occupation. was a tenancy at will would not have prevented the statute running in his favour, but the facts of the case fully warranted the inference either that every time the son came there to live he actually resumed possession, which was quite consistent with the defendant and his CH. VIII. PART V. wife remaining in the house with him, or at any rate that he determined the existing tenancy at will, and by allowing the defendant and his wife to remain in as before when he left, he created a fresh tenancy every time he left. Allen v. In Allen v. England (1), which was an action of trespass for an entry upon land of which the defendant claimed to be owner, there was evidence that the occupation of the plaintiff began by the permission of the defendant, and also that the defendant came from time to time to see the plaintiff and went on the land with him, and told him what trees to lop and what repairs were required. Erle, C.J., told the jury that if they believed that evidence, they should find for the defendant. His Lordship observed that it might be taken that the plaintiff had the beneficial occupation for more than twenty years, but that in his judgment, every time the defendant set foot on the land, it was so far in his possession that the statute would begin to run from the last time he set foot on it. The jury found for the defendant, and the plaintiff had leave to move. This he did, but without effect, but the case at that stage does not seem to be reported. Where a tenancy at will has been determined by the owner resuming occupation, but the person who was tenant at will continues in possession, it may be important to consider whether such person is in possession as a trespasser or under a new tenancy at will; for if a new tenancy at will is created, time will not begin to run against the owner till one year has elapsed from the commencement of the new tenancy, whereas if the possession is that of a mere trespasser, time will run from the commencement of such possession. Acts of ownership, however, which would be sufficient to show a determination of an existing tenancy at will and the creation of a new one, where the occupation was (1) 3 F. & F. 49. CH. VIII. permissive, might be no evidence against the occupier PART V. that his holding was permissive. In such a case, if there is no proof aliunde that a tenancy at will was in existence at the time of such acts, they would have no effect in preventing the operation of the statute, but would amount. to mere entries provided for by the 10th section (1). Lord St. Leonards, in his work on the Property Adverse Statutes (2), appears to approve of the judgment in possession. Doe d. Groves v. Groves, and quotes it as an authority for the proposition that, although a man has been in possession for twenty years as apparent owner, yet the rightful owner may show that the possession was not such as the statute will give effect to. But this is not quite accurate, for the possession of the rightful owner at intervals, whatever its effect otherwise may be, cannot change the nature of the possession of the actual occupier between such intervals. The doctrine of adverse possession is, as before observed (3), done away with by the Act 3 & 4 Wm. IV. c. 27. The effect of the 2nd section of 3 & 4 Wm. IV. c. 27 (now the 1st section of 37 & 38 Vict. c. 57) is to put an end to all questions and discussions whether the possession in favour of which the statute is to operate be adverse or not (4). The question is, whether the prescribed period has elapsed since the right accrued, whatever be the nature of the possession. And the 7th section of 3 & 4 Wm. IV. c. 27 seems especially framed to prevent the principle being infringed by the incidents of a tenancy at will, and therefore makes it, for the purposes of the Act, totally immaterial whether an occupation is permissive or not, except for the period of one year after its commencement, and it seems clear that, subject to that and to exceptions as between landlord (1) Brassington v. Llewellyn, 27 L. J. Exch. 297; at Nisi Prius, 1 F. & F. 27. (4) Nepean v. Doe d. Knight, 2 M. & W. 894, 911; Culley v. Doe d. Taylerson, 11 A. & E. 1008, 1015. CH. VIII. PART V. and tenant, whenever and so long as the owner is out of possession and another person in possession, the statute must always be running in some way or other against the owner (1). Encroachment by tenant. Occupation by a servant. Where a person who held land under a lease for ninetynine years encroached with the consent of his landlord given by word of mouth on the landlord's land and it was orally agreed that the encroachment should be treated as if comprised in the lease, and no rent other than the rent reserved by the lease was ever paid, it was held that such assent did not create a tenancy at will within the 7th section, and did not prevent the operation of the ordinary rule of law that an encroachment made by a tenant must be taken to be made for the benefit of the landlord and treated as part of the demised premises (2). There are cases in which the possession of the actual occupier is not an independent possession, but the possession of the owner himself, so that the owner is in fact in virtual possession through the occupier. This is analogous to the rightful owner being in receipt of the profits through a bailiff (3), and happens where the occupier is a servant of the owner and occupies in his capacity of and for the purpose of performing his duties as such servant, as, for example, a gatekeeper at a lodge or a gardener occupying as such a gardener's cottage. This has been explained in some Irish cases (4). In the case of Lessee of Moore v. Doherty the facts were rather peculiar, and it might perhaps be thought to carry the idea of virtual possession through the actual occupation of another farther than can be fairly done; but whether the facts in that case did or did not warrant the conclusion that the owner was in virtual possession, it would seem clear that, if the judges (1) See Mayor of Brighton v. Guardians of Brighton, 5 C. P. D. 368. (2) Whitmore v. Humphries, L. R. 7 C. P. 1. (3) Part V. Ch. III. p. 301. (4) Per Pennefather, B., in Lessee of Ellis v. Crawford, 5 Ir. L. R. 404; Lessee of Moore v. Doherty, 5 Ir. L. R. 449; Lessee of Montmorency Walsh, 4 Ir. L. R. 254. V. had not thought the facts justified such a conclusion, PART V. they would have held the owner barred. CH. VIII. qe trust. by cestui A cestui que trust in possession of property is at law Possession considered to hold as tenant at will to his trustee, and in some cases a mortgagor is deemed to hold the same relation towards a mortgagee (1). In such cases, if the first part of the 7th section of 3 & 4 Wm. IV. c. 27 had stood alone, its effect might have been to extinguish the title of the mortgagee twenty-one (now thirteen) years after the date of the mortgage, and to bar the title of a trustee at the end of the same period after the cestui que trust first went into possession. To prevent this effect the proviso is inserted "that no mortgagor or cestui que trust shall be deemed to be a tenant at will within the meaning of this clause to his mortgagee or trustee." As regards mortgagees, this proviso is seldom of importance, for, where interest has been paid, their right is now by 7 Wm. IV.and 1 Vict. c. 28 deemed to accrue at the date of the last payment of interest. It has been said that, where the mortgage debt has been paid off, but no reconveyance executed, a mortgagor in possession thereupon becomes a tenant at will to the mortgagee, and the legal estate of the mortgagee is extinguished at the end of thirteen years from the time of payment (2). The effect of the proviso in the 7th section on the title of trustees is unaffected by 7 Wm. IV. and 1 Vict. c. 28. By the terms of the proviso a cestui que trust is for the purposes of the 7th section of 3 & 4 Wm. IV. c. 27 not to be deemed tenant at will to his trustee; the proviso leaves the cestui que trust tenant at will to his trustee for all other purposes in all cases in which, before the passing of the Act, he would have been considered to hold as such tenant. The meaning of the proviso is that "the right of entry of a trustee against his cestui que trust shall not be deemed to (1) See Watkins on Conveyancing, by Morley & Coote, 8th ed. et seq. (2) Sands to Thompson, 22 Ch. D. 614. p. 13, |