PART V.
CH. XU.

Law before

the statute.

or receipt shall not be deemed to be the possession or receipt of or by the person entitled as heir."

Under the old law the fact of a joint tenant or tenant in common or coparcener taking all the profits of the land without accounting to his companion, did not of itself constitute such an adverse possession as would by lapse of time make the claims of the latter unavailable. For the possession of a joint tenant, tenant in common, or coparcener eo nomine as such was not adverse to the right of his co-tenant, but was in support of the common title (1).

To make such possession adverse to the right of a partner in title, there must have been a disseisin or ouster of the latter from the enjoyment of the property or some dealings from which an exclusion could be presumed (2).

It would seem that a feoffment of the whole land to the use of a stranger by one tenant in common or coparcener was through the violent operation attributed to that mode of conveyance sufficient to work a disseisin (3); but generally, whether an ouster was established or not, was a question to be left to the jury on the circumstances of each case; and on the one hand the mere fact of long enjoyment of the whole property by one tenant in common was held sufficient to justify a jury in presuming an ouster, while on the other hand, where A., a tenant in common, was in possession of land and B., another tenant. in common, brought ejectment against him, the fact of A.'s appearing as defendant to the action and entering into a consent rule according to the old practice (4) was held not to be conclusive proof of A.'s possession being adverse to the right of B. (5).

(1) Burton, Compend. s. 395, 8th ed. p. 138; Doe d. Fishar v. Prosser, 1 Cowp. 217; Doe d. Hellings v. Bird, 11 East, 49.

lb.

(3) Burton, Compend. s. 398, 8th ed. p. 139. Co. Lit. 174a.
(4) See Cole on Ejectment, Part I. Ch. I.

(5) O'Sullivan, Lessee of, v. McSwiney, Longfield & T. 111.

CH. XII.

The state of the law on this subject before the passing PART V. of the statute 3 & 4 Wm. IV. c. 27 and the alteration therein effected by it will be found explained in the judgment of the Court of Error in Culley v. Doe d. Taylerson (1).

In that case the defendant in the court below and the lessor of the plaintiff were entitled as tenants in common; the ejectment was brought about three years after the passing of the Act, and the defendant in the action (the plaintiff in error) had had the entire enjoyment of the property claimed for thirty years. The jury were not asked and did not find whether his possession had been adverse to the lessor of the plaintiff. It was held that apart from the statute the possession of the one tenant in common was primâ facie the possession of the other, so that the one who had been out of actual possession could not maintain ejectment against the other, nor could he who had enjoyed the property for thirty years claim the whole under the old Statute of Limitations; that the jury might, from long independent enjoyment by one tenant in common or from other circumstances, infer an ouster of the other, but unless they found such ouster it could not be assumed by the Court; that the 12th section of 3 & 4 Wm. IV. c. 27 had a retrospective effect so far as related to the object of the Act, and had the effect of making the possession of coparceners, joint tenants, or tenants in common, separate from the time when they first became such; so that without an actual ouster the one tenant in common could bring his ejectment and the other could defend his possession under the statute; that in the circumstances the possession of the defendant was not adverse to his co-tenant at the time of the passing of the Act, and therefore by the 15th section the lessor of the plaintiff had five years after the passing of the Act to bring his ejectment (2).

(1) 11 A. & E. 1008.

(2) See Doe d. Holt v. Horrocks, 1 C. & K, 566,

Change 3 & 4

made by

Wm. IV.

c. 27. Culley v.

Doe d.

Taylerson.

PART V.

CH. XII.

Exclusive possession of part of land

Receipt of

rents.

Possessio fratris.

The provision in this section protecting the possession by one of two or more persons entitled in undivided shares to any land applies whether such person is in exclusive possession of the whole of such land or of any part of such land (1), whatever proportion such part may bear to the whole, whether more or less than the proportion which his undivided share bears to the entirety, so that by the possession of such person the title of his companions to their undivided shares in such part will be extinguished. This was decided in England by the Court of Exchequer in Tidball v. James (2) and again in Ireland in Murphy v. Murphy (3). In the latter case Monahan, C.J., explains from a communication from Martin, B., the case of Tidball v. James, which is inaccurately reported, and as reported is difficult to understand.

If one joint tenant or tenant in common receives the entirety of the rents of the property without accounting to his partner in title, the statute will run in favour of the person so receiving the rents, such rents being possession or receipt of profits within the meaning of the 12th section of 3 & 4 Wm. IV. c. 27 (4).

After the statutory period has run out during which one joint tenant or tenant in common has had exclusive possession or receipt of rents of the entirety, a subsequent payment of rent by the partner in possession to the other joint tenant or tenant in common cannot defeat the title which has been acquired (5).

Before the statute 3 & 4 Wm. IV. c. 27, where a person died seised in fee, leaving two sons, and the younger son entered, it was considered that he did not enter to

(1) In re Dane's Estate, 5 Ir. R. Eq. 498.

(2) 29 L. J. Exch. 91.

(3) 15 Ir. C. L. R. 205.

(4) Sanders v. Sanders, 19 Ch. D. 373; Burroughs v. McCreight, 1 J. & Lat. 290. In re Hobbs.

Bolling v. Hobday, 31 W. R. 9.

Hobbs v. Wade, 36 Ch. D. 553. See

(5) In re Hobbs. Hobbs v. Wade, 36 Ch. D. 553.

་

n

CH. XII.

get a possession distinct from that of the elder brother, PART V.
but to preserve the possession of the father in the family
that nobody else might abate. For this was the most
charitable interpretation that could be put upon such an
action, and, as by such an interpretation it was just and
rightful, the law would not intend it to be a wrongful
act or disseisin, and in consequence the possession of the
younger brother became that of the elder. No laches
could be imputed to the elder brother in not enforcing
his rights, since the younger brother entered and
possessed for him. But if the younger brother had made
a feoffment in fee, or if the elder brother had entered
and then the younger brother had entered upon him, this
would have been a destruction of the elder brother's right
of possession and the creation of a possession distinct
therefrom (1).

So if a sister entered and occupied land to which her
brother was entitled as heir, her possession was construed
to be by courtesy and licence to preserve the possession
of her brother, and therefore not within the intent of the
statute 21 Jac. I. c. 16. But, if the brother had ever
been in actual possession and had been ousted by his
sister, this presumption ceased (2).

The 13th section obviously does away with the whole of these doctrines.

The effect of the entry of a father upon the land of an
infant child is governed by entirely different principles,
and is discussed hereafter (3).

(1) Gilbert's Tenures, 28, 29; Co. Lit. 242a.
(2) See Page v. Selfby, Bull. N. P. 1026.
(3) Part V. Ch. XV.

CHAPTER XIII.

ACKNOWLEDGMENT OF

TITLE (3 & 4 WM. IV. c. 27, s. 14).

PART V.
CH. XIII.

3 & 4

Wm. IV.

By sect. 14 of 3 & 4 Wm. IV. c. 27, it is enacted as follows:

"Provided always that when any acknowledgment of c. 27, s. 14. the title of the person entitled to any land or rent shall have been given to him or his agent, in writing, signed by the person in possession or in receipt of the profits of such land, or in receipt of such rent, then such possession or receipt of or by the person by whom such acknowledgment shall have been given shall be deemed, according to the meaning of this Act, to have been the possession or receipt of or by the person to whom or to whose agent such acknowledgment shall have been given at the time of giving the same, and the right of such last-mentioned person or any person claiming through him to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued at and not before the time at which such acknowledgment or the last of such acknowledg ment, if more than one, was given."

Effect of

acknow

The operation of this section is, in effect, to make an ledgment. acknowledgment in writing tantamount to possession or receipt of rent, at the moment when the acknowledgment is given, by the person to whom or to whose agent the acknowledgment is given, such person being supposed for the purposes of this Act to be simultaneously dispossessed or to have discontinued the receipt. And it