3 & 4 Will. 4, or rent, such possession or receipt shall not be deemed to have c. 27, s. 12. been the possession or receipt of or by such last-mentioned person or persons, or any of them (a).

Construction of this section.

(a) This section has relation back as far as relates to the period of the act, and makes the possession of one coparcener, joint-tenant, or tenant in common, who has been in possession of the entirety, separate from the time of his coming into possession. Therefore where one tenant in common has been out of possession for twenty years prior to the passing of the statute, he is barred by sections 2 and 12 from bringing his action, but might have maintained it under section 15 within five years of the passing of the act, if the other tenant in common had not been in possession adversely to him at the time of the passing of the act. In 1799, D., M. and A., being entitled to a remainder in fee, as tenants in common, of lands then held by a tenant for life, D. and the tenant for life conveyed the third, in which D. had the remainder, to C., who thereupon entered into possession of the whole. In 1800, the tenant for life died, A. having died before. The heir-at-law of A. filed a bill in Chancery in respect of the land against C. In 1835, while the proceedings were going on, the said heir-at-law died, having devised to J. all his lands, &c., whether in his own possession or that of others, as far as he lawfully could, specifying those which he was seeking to recover from C. In 1836, the devisor's heir-at-law brought ejectment against C. for A.'s third part: it was held, that under sections 2 and 12 of this statute the defendant's possession could not be held to have been ever that of the other tenants in common, for that sect. 12 made the possession of tenants in common separate from the commencement of the tenancy in common, and not merely from the time of the act passing. That therefore sect. 2 would have barred the lessor of the plaintiff, but that his right was saved by sect. 15, the ejectment having been brought within five years of the passing of the act, and the possession of C. not being adverse to the other tenants in common, within the meaning of that section. (Culley v. Doe d. Taylerson, 11 Ad. & Ell. 1008; 3 P. & Dav. 538.) This statute is, to a certain degree, retrospective, as to the possession of tenants in common; and though before the act the separate possession of one coparcener, joint-tenant, or tenant in common, of the entirety, or more than his individual share of such land, was not adverse as against the owners of the other shares, yet, by the operation of the act, the possession, which was not adverse prior to that act, became by that act adverse as against tenants in common, who were not in possession. (O'Sullivan v. M'Swiney, 1 Longfield & T. 118, 119; Doe d. Holt v. Horrocks, 1 Car. & K. 566.) Since the passing of the act 3 & 4 Will. 4, c. 27, the possession of land by one coparcener cannot be considered as the possession of his coparcener; nor, consequently, can the entry of one have the effect of vesting the possession in the other. (Woodroffe v. Doe d. Daniell, 15 Mees. & W. 792.) Where a tenant in common had been in the exclusive possession of the rents of S. for more than twenty years, and an ejectment had been brought by another co-tenant in common, to which A. had taken defence, and on which no further proceedings were had, taking such defence is not conclusive evidence of adverse possession against A.'s co-tenant in common. (O'Sullivan v. M'Swiney, 1 Longfield & T. 111.)

By this statute, actual possession by the enjoyment of the profits of lands, though not adverse in the old sense of the law, is, in itself, a bar and a transfer of the estate; and it is not necessary that this possession should be strengthened or corroborated by intermediate conveyances. (Burroughs v. MCreight, 1 Jones & L. 290.) Lands were conveyed to a trustee and his heirs, in trust for five persons, as tenants in common in fee. For more than twenty years prior to the filing of the bill, four of the tenants in common had been, by their agent, in the uninterrupted and exclusive receipt and enjoyment of the rents and profits of all the lands. The trustee never, in any manner, interfered in the trust. It was held, that the title of the fifth tenant in common was barred by this statute, which has altered the rule that the possession of one tenant in common is the possession of the other. The case was not within the saving of the 25th section, for the defend

ants had not received the rents under, but in opposition to, the trustees. 3 & 4 Will. 4, (16.)

Mere occupation by one of several tenants in common of an estate, if unaccompanied by exclusion, does not make him liable for rent to his cotenants. (M'Mahon v. Burchell, 2 Phill. C. C. 127; 1 Coop. 457.) One tenant in common of real property cannot maintain an action for money had and received against his co-tenant, his remedy being an action of account under the stat. 4 Ann. c. 16, s. 27. (Thomas v. Thomas, 19 Law J., Exch. 175; 14 Jur. 180.) As the only remedy given by the stat. 4 Ann. c. 16, s. 27, is an action, there is no right to relief in equity, unless the case be one in which such action would lie. An executor who had been cotenant in common with his testator of a farm which the latter had alone cultivated, claiming to be a creditor of the estate for a moiety of the profits, the court directed an action to be brought to try the right. (Henderson v. Eason, 2 Phill. C. C. 308; 15 Sim. 303. See Murray v. Hall, 7 C. B. 441.)

Coparceners, joint-tenants, and tenants in common, having a joint possession and occupation of the whole estate, it was a settled rule of law that the possession of any one of them was the possession of the ot. rs or other of them, so as to prevent the statutes of limitation from affecting them; nor did the bare receipt of all the rents and profits by one operate as an ouster of the other. (Co. Litt. 243 b, n. (1), 373 b; Ford v. Grey, 1 Salk. 285; 6 Mod. 44; Br. Coparceners; 1 Moore, 868.) The possession of one coparcener was that of the other, so as to create a seisin in the other, and carry her share by descent to her heirs, although the other had never actually entered; (Doe v. Keen, 7 T. R. 386;) and entry by one coparcener, when not adverse to her companions, enured to the benefit of all. (Co. Litt. 243 b; Doe v. Pearson, 6 East, 173; Smith, 295.) But the possession of one heir in gavelkind was held not to be that of the other, where he entered with an adverse intent to oust the other. (Davenport v. Tyrrel, 1 Bl. R. 675.)

c. 27, s. 12.

How tenants in common, &c. were affected by limitation.

old statutes of

POSSESSION OF YOUNGER BROTHER, &C.

younger brother

13. When a younger brother or other relation of the person Possession of a entitled as heir to the possession or receipt of the profits of any not to be the posland, or to the receipt of any rent, shall enter into the posses- session of the sion or receipt thereof, such possession or receipt shall not be heir. deemed to be the possession or receipt of or by the person en

titled as heir (b).

(b) The effect of this section is illustrated in the judgment of the court in Jones v. Jones, 16 Mees. & W. 712, ante, p. 152.

law.

If a man, seised of certain lands in fee, had issue two sons, and died Prior state of the seised of such land, and the younger son entered by abatement into the land, the Statute of Limitations did not operate against the elder son, as the law intended that he entered claiming as heir to his father, being the same title as that by which the elder son claimed. (Litt. s. 396; Sharington v. Shrotton, Plowd. 306.) On proof that the sister of the plaintiff occupied the estate for twenty years, and that the defendant entered as her heir, her possession would be construed to be by curtesy and licence, to preserve the possession of the brother, and therefore not within the intent of the stat. 21 Jac. 1, c. 16. The presumption ceased if it appeared that the brother had been in the actual possession, and that he had been ousted by the sister. (Page v. Selby, Bull. N. P. 102; 2 Stark. on Ev. 220, 2nd ed.; Co. Litt. 212; Plowd. 298, 306.) In a case, it appeared that on the 3rd of April, 1800, L. D. died seised in fee of lands, and immediately on his death his second son entered into possession of them, being the devisee of such lands named in the will of his father, which was only attested by two witOn the 7th of December, 1805, the second son mortgaged those

Lesses.

S.

3 & 4 Will. 4, c. 27, s. 13.

lands, and in the mortgage described himself as executor, heir at law, and devisee of his father. In 1823, the second son died, and on an ejectment by the heir of the eldest son of L. D., it was held that he was not barred by the Statute of Limitations, there being no ground to presume an actual ouster by the second son. For the motive of the younger brother in entering was not a matter of consideration, and the circumstance of there being a will not attested so as to pass real estate could not, as to that question, make any difference; for the entry was still nothing but an entry without title, such a will being in fact no will of land. If the mortgage had been by feoffment, it would have amounted to an ouster or disseisin; not being so, it could only be considered as affording some ground for the presumption of an ouster, a question which it was unnecessary to decide, inasmuch as twenty years had not elapsed since the execution of the mortgage. (Lessee of Dowdall v. Bryne, Batty's Ir. R. 373.)

WRITTEN ACKNOWLEDGMENt of Title.

14. Provided always, and be it further enacted, that when any acknowledgment of 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 acknowledgments, if more than one, was given (c).

(c) Whether a writing amounts to an acknowledgment of title within this section is a question for the judge, and not for the jury to decide. (Doe d. Curzon v. Edmonds, 6 Mees. & W. 295; Morrell v. Frith, 3 M. & W. 402.) Where letters were relied on as an acknowledgment of title, Sir E. Sugden, L. C., said it was a question of fact for a jury, whether the letters in question amounted to an acknowledgment of title within the statute. (Incorporated Society v. Richards, 1 Dru. & War. 290.) A party in possession adversely of land, being applied to by the party claiming title to it to pay rent, and offered a lease of it, wrote as follows:-" Although if matters were contested, I am of opinion that I should establish a legal right to the premises, yet, under all circumstances, I have made up my mind to accede to the proposal you made of paying a moderate rent on an agreement for a term of twenty-one years:" the bargain subsequently went off, and no rent was paid or lease executed. It was held, that this letter was not an acknowledgment of title within this section, because there was no final bargain, Doe d. Curzon v. Edmonds, 6 Mees. & W. 295. See Morrell v. Frith, 3 Mees. & W. 402.)

By an indenture dated 27th October, 1827, between the defendant of the one part, and the plaintiff of the other part, after reciting that certain copyhold premises were surrendered to the plaintiff for securing the repayment of 3007. by him that day lent to the defendant, the plaintiff covenanted on repayment of that sum and interest on the 27th April, 1828, to surrender

the premises to the defendant, and the defendant covenanted to pay the 300% and interest at the time appointed for payment. There was also a stipulation that in default of repayment, the plaintiff might take possession of the premises. The deed was in fact executed on the 23rd of August, 1834. No principal, interest or rent had ever been paid by the defendant. In February, 1854, the plaintiff brought ejectment. It was held, that the deed was a sufficient acknowledgment of the plaintiff's title within this section, as the deed was to be read as speaking from the time of its execution, and consequently there was a sufficient acknowledgment to prevent the right of entry from being barred. (Jayne v. Hughes, 10 Exch. 430; 24 Law J., Exch. 113.)

A correspondence by a party in possession of property with the solicitor of a society, by which he merely professed to hold the estates until an ac count on the foot of charges, to which he was entitled, should be closed, and offered to refer to arbitration all questions touching such account, as the only matter in dispute, was held to amount to a written acknowledgment of the plaintiff's title, and save it from being barred. (Incorporated Society v. Richards, 1 Connor & Lawson, 86; 1 Dru. & War. 258.) Where two parties are dealing with each other, the one claiming a right to the property, and the other an incumbrance on it, the incumbrancer cannot be heard to say that an acknowledgment, contained in a correspondence between them, is not binding on him, because there might be an infirmity in the title acknowledged, in case some third party were to make a claim. (1 Connor & Lawson, 86.) The acknowledgment must be in writing, and it may be doubted whether parol evidence of the acknowledgment will be excluded. (Haydon v. Williams, 7 Bing. 168; 4 M. & P. 811.)

If a person through whom the defendant in an action of ejectment claims has, in an answer sworn by him to a bill filed by the plaintiff in reference to the same property, acknowledged the title of the plaintiff within twenty years of the time of the action being brought, such acknowledgment will be evidence against the defendant, and will operate as a bar to the Statute of Limitations under this section. (Goode v. Job, 28 L. J., Q. B. 1; Ell. & Ell. 6.)

It was held, that the unaccepted proposal for a lease made, by E. F., whose personal representative the defendant was, to the parties from whom the lessors of the plaintiff derived title, such proposal having been signed for a third party for and in the presence of E. F., who was unable from illness to write, was evidence of an acknowledgment of title within the 14th section. (Corporation of Dublin v. Judge, 11 Ir. L. R. 9. See Storey on Agency, 55, 56.) The moment after an acknowledgment of title, within the meaning of the 14th section, is made, the time begins to run against the person to whom it is made. (Burroughs v. M'Creight, 1 Jones & L. 290.)

3 & 4 Will. 4,

e. 27, s. 14.

The requiring an acknowledgment in writing to take a case out of the Acknowledg statute 3 & 4 Will. 4, c. 27, is adopted by analogy to the statute 9 Geo. 4, ments in writing. c. 14, in this section, and in the 28th, 40th, and 42nd sections of this act, and in the 5th section of the 3 & 4 Will. 4, c. 42. It may be proper to remark, that a difference occurs in the language of these sections. Thus, under the 14th section, the acknowledgment is to be given to the party in possession, or his agent, signed by the person in possession. By the 28th section, twenty years' possession by a mortgagee will bar the right of redemption, unless an acknowledgment of such right shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee, or the person claiming through him.

By the 40th section, money charged upon land and legacies are to be deemed satisfied at the end of twenty years, unless some part of the principal, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent. By the 42nd section, no arrears of rent or interest are to be recovered, but within six years after the same shall have become due, or next after an acknowledgment of the same shall have been given to the person entitled thereto, or his agent, signed by the person by

3 & 4 Will. 4, c. 27, s. 14.

Acknowledgment

by agents.

whom the same was payable, or his agent. In four cases above mentioned, therefore, the acknowledgment is binding if given to the party entitled, or his agent; but an acknowledgment of title under the 14th section, or of a right to redeem under the 28th section, cannot be given by an agent, whilst, in the case of money charges, and of arrears of rent or interest, an acknowledgment by an agent will be effectual. The cases as to acknowledgments under the 40th and 42nd sections of this act, and under 9 Geo. 4, c. 14, are collected in the subsequent notes.

By the 5th section of 3 & 4 Will. 4, c. 42, (limiting the time within which actions on specialties are to be brought,) any acknowledgment either by writing signed by the party liable by virtue of a specialty, or his agent, or part payment or part satisfaction on account of any principal or interest due thereon, will take a case out of that act.

It will be seen that the acknowledgment required by Lord Tenterden's Act, 9 Geo. 4, c. 14, s. 1, is to be made or contained by or in some writing to be signed by the party chargeable thereby. Under that statute, a signature by the agent of the party to be charged is not sufficient to take a case out of the Statute of Limitations, 21 Jac. 1, c. 16. (Hyde v. Johnson, 3 Scott, 289; 2 Bing. N. C. 778.) This decision, it is conceived, will be applicable to an acknowledgment under the 14th section of 3 & 4 Will. 4, c. 27, which requires a signature by the person in possession, or in receipt of the profits of land, or of the rent, but not to the cases under the other sections, where a signature is required to be by the party or his agent. (Lord St. John v. Boughton, 9 Sim. 218. See Forsyth v. Bristowe, 8 Exch. 720, 721.) In reference to the provisions of 9 Geo. 4, c. 14, ss. 1, 8, and the 16 & 17 Vict. c. 113, ss. 24, 27, an acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorized to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself. (19 & 20 Vict. c. 97, s. 13.) Sir J. Romilly, M. R., observed, that "since Lord Tenterden's Act the acknowledgment or promise to pay must be made to the creditor. There might have been some question whether an acknowledgment, if made to an agent of the creditor, is not made to him. The stat. 19 & 20 Vict. c. 97, s. 13, removes all difficulty as to promises by the agent of the debtor. However, in equity it would be considered, that if an application were made by the solicitor of the creditor, and the debtor wrote to say that he would pay the debt, it would be the same as if he had made the promise to the creditor himself." (Fuller v. Redman, (No. 2,) 26 Beav. 620.) In an action for the use and occupation of premises alleged to have been held by the defendant as tenant to the plaintiff's testator, who died in 1837, the defendant pleaded the Statute of Limitations. A letter, dated August 30, 1837, after the testator's death, in answer to an application by the attorney for payment of the arrears of rent, was held a sufficient acknowledgment of the testator's title to take the case out of the statute. The property which the defendant had occupied for several years had for a long time been the subject of a chancery suit. The letter stated that the defendant was involved in law from 1805 to 1816 concerning the land, which had given him great trouble and expense, and that with respect to the expenses it was reasonable that the lords of the fee should make him some recompence accordingly; and after detailing certain particulars as to the several claims which had been made to the property, that the plaintiff's testator had been applied to to defend his title as to one fourth, but had objected so to do, and that " it appeared reasonable that the plaintiff shouldvindicate his right to the land," rather than that the expenses should fall upon the tenants; the letter concluded by stating that the writer" begged compassion, mercy and pity, and recompence in a satisfactory manner." (Fursden v. Clegg, 10 Mees. & W. 572.)

In 1818, the plaintiff and the defendant's grandfather became seised as tenants in common of a meadow. The meadow was then in the possession of the defendant's grandfather, who had previously held it under a lease. The plaintiff's father became possessed in 1826, and so continued till his death, in 1836. In 1837, a person, who was proved to be a land-agent, who received the defendant's rents and managed his property, wrote the follow