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CH. X.

reversion in fee, so that the rent reserved on the under Part V. lease is due from him to the mesne lessee and the head rent is due from the mesne lessee to him, then, if such purchaser neither makes any payment of the rent due in respect of the under lease, nor applies to the mesne lessee for the head rent, the statute will not, in these circumstances, run against the title of the latter to the original lease (1).

According to the wording of this section it is not necessary, in order to bar the rightful claimant, that the rent reserved should be received by another for a period of twelve years; it is sufficient to bar the title of the rightful owner that the rent should have been once received by a wrongful claimant, and never paid for the next twelve years to the person rightfully entitled. But if a wrongful claimant receives rent for a period less than twelve years and then ceases to receive the rent and makes no claim to receive it, the case is very similar to that in which a person without title has had possession of land for less than the statutory period and has then abandoned possession and left the house unoccupied ; in which case it has been held that the title of the owner revives as if he had not been out of possession (2). On the words, “and no payment shall afterwards have been made to the person rightfully entitled,” the following question may at some time arise :- Where a wrongful claimant has received rent for more than twelve years, and rent has been subsequently paid to the person rightfully entitled, will the case be excepted from the operation of the statute? It is submitted that it would not, because the title of the person formerly rightfully entitled would have been extinguished by the operation of the 34th section, and a subsequent payment of rent to that person could not revive the title (3)

(1) Hayes v. Woodley, ubi supra.
(2) Agency Co. v. Short, 13 App. Cas. 793. See ante, pp. 289,310.
(3) But see Bunting v. Sargent, 13 Ch. D. 330, ante, p. 362.

CHAPTER XI.

ENTRY AND CONTINUAL CLAIM (3 & 4 wm. IV. c. 27,

ss. 10 & 11).

CH. XI,

Sect. 10

Sect. 11.

L'art V. The 10th and 11th sections of 3 & 4 Wm. IV. c. 27 pre

vent the right of a claimant to land being kept alive by a formal entry or claim made on or near the property.

These sections are as follows:

“No person shall be deemed to have been in possession of any land within the meaning of this Act merely by reason of having made an entry thereon.”

“No continual or other claim upon or near any land shall preserve any right of making an entry or distress

or of bringing an action.” Law before Before the passing of the statute 3 & 4 Wm. IV. c. 27, the statute.

when another person who had no right had taken possession of lands or tenements, the party entitled might make a formal entry thereon, declaring that he thereby took possession, which notorious act of ownership was equivalent to a feudal investiture by the lord. If the claimant were deterred from entering by menaces or bodily fear, he might make claim as near to the land as he could with the like forms and solemnities, which claim was in force for only a year and a day. And this claim, if it were repeated once in every period of a year and a day (which was called a continual claim), had the same effect as a legal entry. Such an entry gave a man seisin or put into possession the person who had the right of entry on the estate, and thereby made him complete owner and

CH. XI.

capable of transmitting it either by descent or by PART V. purchase (1).

The owner of the estate could only recover seisin by entry, where the original entry of the wrong-doer was unlawful. In other cases, where the original entry was lawful, as upon a discontinuance or deforcement, or where the wrongful occupant came into the estate of the original disseisor by act of law, as upon a descent cast, since the person who had the possession had also an apparent right of possession, the owner of the estate could not enter, but was driven to his action, that is, his real action in which the inheritance or, at least, the freehold, was the thing immediately in demand, and which, therefore, must in all cases have been brought against the actual tenant of the freehold. The action of ejectment, on the contrary, was a remedy open to any one entitled to the mere possession of land and was brought simply to recover such possession; therefore the right to bring such an action was involved in the right of entry (2). However, by the old Statute of Limitations (21 Jac. I. c. 16) it was enacted that no entry should be made by any man upon lands unless within twenty years after his right should accrue.

And again, by the statute 4 & 5 Anne, c. 16, it was enacted that no entry should be of force to satisfy the said Statute of Limitations, or to avoid a fine levied of lands, unless an action thereon were commenced within one year after and prosecuted with effect. Since the statute of Anne, therefore, an owner of land who had been disseised could keep up his right of entry only by continually repeating his entry or claim at intervals not greater than a year.

The 10th and 11th sections of the Act 3 & 4 Wm. IV. Entry anil c. 27 have taken away all effect from such entry or claim, claim now so far as the Statute of Limitations is concerned, and the of no effect. rightful owner of land will now be barred at the end of twelve years from the time when his right to recover

(1) 3 Blackstone Com. III. 10; 1st ed. vol. III. p. 175.
(2) See Burton's Compend. 8th ed. ss. 402, 103, pp. 140, 141,

continual

CH, XI.

Part V. possession of the land first accrued, notwithstanding he

may from time to time during the twelve years have made entry on the land in assertion of his title; and it seems clear that no entry on a trespasser is sufficient to revest the property in the owner and give him a new right, unless such entry amounts to a resumption of possession by the owner, though it is immaterial how short that possession may be (1).

(1) Doe d. Baker v. Coombes, 9 C. B. 714 ; 19 L. J. C. P. 306; Randall v. Stevens, 2 E. & B. 641; 23 L. J. Q. B. 68; Brassington v. Llewellyn, 27 L. J. Exch. 297, at N. P.1 F. & F. 27; Allen v. England, 3 F. & F. 49; Thorp v. Facey, 35 L. J. C. P. 319; Worssam v. Van deabranılr, 17 W. R. 53.

CHAPTER XII.

POSSESSION BY ONE JOINT TENANT OR TENANT IN

COMMON AND POSSESSIO FRATRIS (3 & 4 wm. IV.
c. 27, ss. 12 & 13).

CH. XII.

BEFORE the passing of the statute 3 & 4 Wm. IV. c. 27, PART 1: if a person having an undivided share in an estate had possession of the entirety, or if a younger brother entered on and held land to which his elder brother entitled as heir, difficult questions might arise as to whether this possession was such as the old Statute of Limitations

was

would protect.

The occurrence of such questions for the future was prevented by the 12th and 13th sections of the Act 3 & 4 Wm. IV. c. 27, which are as follows:

“When any one or more of several persons entitled to Sect. 12. any land or rent as coparceners, joint tenants or tenants in common shall have been in possession or receipt of the entirety or more than his or their undivided share or shares of such land, or of the profits thereof, or of such rent for his or their own benefit or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such lastmentioned person or persons or any of them.”

“When a younger brother or other relation of the Sect. 13. person entitled as heir to the possession or receipt of the profits of any land or to the receipt of any rent shall enter into the possession or receipt thereof, such possession

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