c. 27, s. 2.

Willoughby of Paiham, Lords' Journ. vol. 31, p. 350; see 3 Cru. Dig. 202). 3 & 4 Will. 4, But offices with fees and profits are within them (Lords' Journ. vol. 36, p. 295). An annuity was not within the stat. 32 Hen. 8, c. 2, for the plaintiff did not declare upon a seisin, but upon his grant (Bro. St. Lim. 26; see ante, p. 108). So that statute did not extend to a corporation aggregate, as mayor and commonalty, nor to a dean and chapter. But it was otherwise as to a corporation sole; for if a bishop or other sole corporation sued upon a seisin of his predecessor, he was barred if the seisin was not within sixty years (Bro. St. Lim. 33; Bac. Abr. Limitation of Actions, (B) ).

The stat. 21 Jac. 1, c. 16, sects. 1 and 2 (repealed by 26 & 27 Vict. Limitation of c. 125), limited the period for all writs of formedon to twenty years, and right of entry. enacted that no persons should at any time thereafter make any entry 21 Jac. 1, into any lands, tenements or hereditaments, but within twenty years c. 16. next after his title should first descend or accrue to the same, and, in default thereof, such persons so not entering, and their heirs, should be disabled from such entry after to be made. [The provisions of the statutes 32 Hen. 8, c. 2, and the 21 Jac. 1, c. 16, were extended to Ireland by the Irish stat. 10 Car. 1, sess. 2, c. 6.]

By the stat. 21 Jac. 1, c. 16, s. 1, no entry could be made, and therefore no ejectment maintained, but within twenty years after the title of entry first accrued, with the exception of persons under disabilities. There were two periods from which the term of twenty years limited by that statute was to be computed, one with respect to the rights of persons entitled in possession, and the other with respect to the rights of persons entitled to future interests. Less difficulty arose with respect to the latter, because it can easily be proved when such rights would have come into possession by the determination of the preceding estates; but the former period was to be computed from the time when the wrongdoer acquired the possession of the freehold adversely to the title of the owner, whose estate thereby became a mere right; and in many cases it was very difficult to ascertain what would constitute such possession.

As to the rights of issues in tail under the stat. 21 Jac. 1, c. 16, see Tolson v. Kaye, 3 Brod. & B. 217; 3 B. & A. 738; 6 M. & G. 536; Doe v. Woodroffe, 16 M. & W. 769.

c. 24.

By stat. 4 Hen. 7, c. 24, a fine with proclamations was made a bar to Non-claim on all persons if they did not claim within five years after the proclamations fines. made, or after their rights of entry accrued, or after the removal of their 4 Hen. 7, disabilities (See Davies v. Lowndes, Bing. N. C. 177, 178; Runcorn v. Doe, 5 B. & C. 701; Doe v. Perkins, 3 M. & S. 271; Doe v. Gregory, 2 Ad. & Ell. 14). For the case of married women, see Doe v. Pett, 11 Ad. & Ell. 853; Doe v. Plumtre, 3 B. & Ald. 474. It seems that the adverse possession necessary to make a fine with proclamations operate by way of bar, was the same as the adverse possession necessary for the purpose of barring a right of entry (Note to Nepean v. Doe, 2 Smith's L. C. 610, 9th ed.)

To constitute adverse possession, it was formerly considered necessary Adverse that there should be an ouster of the seisin in one of five modes, called possession disseisin, abatement, intrusion, discontinuance, and deforcement. Dis- necessary seisin is where the person in possession of the freehold is evicted. Abate- under above ment is where a wrongdoer enters on the vacant possession, after the statutes. death of the owner, instead of the heir or devisee. Intrusion is where a wrongdoer enters on the vacant possession, after the death of the tenant for life, instead of the remainderman or reversioner. Discontinuance was where a tenant in tail in possession aliened by a tortious conveyance, as feoffment or fine, which did not bar the entail. Deforcement was considered to include the other four terms, and any holding over after the determination of an estate, or other wrongful withholding of the freehold from the right owner (See 1 Real Prop. Rep. 494; 3 Bl. Comm. 167-173). When a party entered by colour of a void grant, he was a disseisor (Buckler's Disseisin, case, 2 Rep. 55 b; Cro. Eliz. 451; Cro. Car. 306, 388; Litt. Rep. 298, 373; Cro. Jac. 660; 1 Jones, 316). But where a grant was according to

3 & 4 Will. 4, c. 27, s. 2.

Question of adverse possession before 3 & 4

Will. 4, c. 27.

Adverse

possession before 3 & 4 Will. 4, c. 27, in the case of encroach

the rules of law, but required to be perfected by a subsequent ceremony, as if a feoffee entered before livery of seisin, he was not a disseisor (2 Rep. 55). Wherever there was a disseisin, the possession of the disseisor was considered adverse, and the party was bound to pursue his remedy within twenty years from the act constituting the disseisin (Butl. Co. Litt. 330 b, n.) There might be an unlawful possession which did not amount to a disseisin (Doe v. Gregory, 2 Ad. & Ell. 14; 4 Nev. & M. 308; see 2 M. & W. 904). As to disseisin, see Taylor v. Horde, 1 Burr. 108; Doe v. Lynes, 3 B. & C. 388; Williams d. Hughes v. Thomas, 12 East, 141; Roscoe on Real Actions, 61-63; 2 Prest. on Abst. 284 et seq.

At the time of the enactment of 3 & 4 Will. 4, c. 27, it seems that the question whether possession was or was not adverse, was to be decided by inquiry whether the circumstances of that possession were sufficient to evince its incompatibility with a freehold in the claimant (Note to Nepean v. Doe, 2 Smith's L. C. 610, 9th ed.; and see the judgment of the Privy Council in Des Barres v. Shey, 22 W. R. 273, an appeal from Nova Scotia).

The possession of a lessee could not be adverse (1 Wils. 176; 3 Wils. 521; 2 Bos. & P. 542; 2 D. & R. 38), until the end of the tenancy (Cowp. 218). So in the case of a husband of a tenant for life holding on after her death (Doe v. Gregory, 4 Nev. & M. 308; see Doe v. Blakeway, 5 C. & P. 563). Joint possession with the real owner was held not adverse (Reading v. Rawsterne, 2 Ld. Raym. 829; 1 Salk. 423).

Possession was not adverse in some cases if there was a possible explanation consistent with the plaintiff's title; as when possession might have been, under a custom, for a husband to hold for life his deceased wife's copyhold (Doe v. Brightwen, 10 East, 583), or might have been in respect of dower (Doe v. Haslewood, 6 Ad. & Ell. 167; see Doe v. Pettet, 5 B. & Ald. 223; Doe v. Harbrow, 1 Ad. & Ell. 67, n.; Doe v. Langfield, 16 M. & W. 497); or might have been under an agreement for partition by deed, which was never executed (Doe v. Millett, 11 Q. B. 1036). Where a person held land which was intended to be, but was not in fact, conveyed to him on certain trusts, his possession was not adverse while it was in accordance with the trusts (Doe v. Hulse, 3 B. & C. 757). But where copyhold lands had been granted to A. for the lives of herself and B., and in reversion to C. for other lives, and A. died, having devised to B., who entered and kept possession for more than twenty years, it was held that C. was barred by the statute after B.'s death from maintaining ejectment, as C.'s right of possession accrued on the death of A., when his interest terminated, inasmuch as there could be no general occupant of copyhold land (Doe v. Scott, 4 B. & C. 706). Possession by a woman was held adverse to her brother, who was entitled as heir (Doe v. Lawley, 13 Q. B. 954). So possession by the mother of the heir was adverse unless it was by his permission (Doe v. Jauncey, 8 C. & P. 99). Where a party was let into possession with the consent of the owner, and did acts importing that he continued in possession only with the owner's permission, such acts prevented the possession being adverse (See Litt. s. 70). So where a person was let into possession under a contract for purchase, and paid interest on a portion of the purchase-money for some years, but never completed the purchase, it was held that his possession was not adverse (Doe v. Edgar, 2 Bing. N. C. 498). A woman, living apart from her husband, obtained a demise of property for a term: it was held that possession, if adverse to the wife, was adverse to the husband, and not otherwise (Roe v. Wilkins, 4 Ad. & Ell. 86). The solitary act of entry and attornment, followed by no assertion of right for upwards of thirty years, was no evidence of a possession not being adverse (Doe v. Edwards, 5 Ad. & Ell. 95).

The stat. 21 Jac. 1, c. 16, ran against the lord of a manor as well as against any other person. Hence it was said if a house, &c., be built upon the waste, the lord shall take care to have some entry made of it in his books, and reserve some rent or service, otherwise he will lose his right. If a cottage is built upon waste in defiance of a lord of a manor, and quiet possession has been had of it for twenty years, it is within the stat. 21 Jac. 1, c. 16;

c. 27, s. 2.

ments from waste.

but if it were built at first by the lord's permission, or any acknowledg- 3 & 4 Will. 4, ment have been since made (though it were 100 years since), that statute would not run against the lord (Bull. N. P. 104, cited 3 B. & C. 414; see Doe v. Wilkinson, 3 B. & C. 413; Doe v. Clarke, 8 B. & C. 717; R. v. Cuddington, 2 New Sess. C. 10; L. J. 1845, M. C. 182; R. v. Woburn, 10 B. & C. 846). A mere licensee is in this respect on the same footing as a tenant (Doe v. Baytup, 3 Ad. & Ell. 188). As to licence for an encroachment on a common given by a commoner, see Harvey v. Reynolds, 1 C. & P. 141. If a person inclose a portion of the lord's waste by the licence of the lord, such person cannot be turned out of the possession of it by the lord without revocation of the licence (Doe v. Williams, 7 C. & P. 332; see Doe v. Wilson, 11 East, 56; Doe v. Heakin, 6 Ad. & Ell. 495).

Before 3 & 4 Will. 4, c. 27, if no other title appeared, possession for Possessory twenty years was strong presumptive evidence of a fee (Doe v. Barnard, title before Cowp. 595); and though gained by manifest wrong, and though liable to 3 & 4 Will. 4, be defeated by the entry of the rightful owner, was a title as against c. 27. strangers (Doe v. Webber, 1 Ad. & Ell. 119; Doe v. Parke, 4 Ad. & Ell. 816); and conferred on the possessor, on ouster or trespass by a stranger, the ordinary remedies for such injuries (See 3 Man. & Ry. 112, n.) Where a plaintiff in ejectment proved twenty years' possession immediately preceding possession for ten years by defendant, the former was entitled to recover, his earlier possession prevailing (Doe v. Cooke, 7 Bing. 346; see Stokes v. Berry, 2 Salk. 421). Possession of land for any term less than twenty years by a feoffee was not presumptive evidence of livery of seisin (Doe v. Cleveland, 9 B. & C. 864; Doe v. Davies, 2 M. & W. 503).

66

Shortly after the passing of 3 & 4 Will. 4, c. 27, Lord St. Leonards thus Effect of 3 & 4 described the effect of the act:-"Under the new act possession gives the Will. 4, c. 27. right, and not only gives the right, but transfers the estate. All former statutes barred the remedy, but did not bar the estate; they did not create an estate, although they enable the party to hold against all the world. But the new statute in point of fact gives the estate, to recover which the remedy is barred, for it bars the remedy and binds the estate" (Incorporated Society v. Richards, 1 D. & War. 289; and see Sugd. R. P. Stats. 77, 2nd ed.); and the same judge subsequently said: It is perfectly settled that adverse possession is no longer necessary in the sense in which it was formerly used, but that mere possession may be and is sufficient under many circumstances to give a title adversely; and although perhaps now no better expression than adverse possession can be used, yet it is not adverse in the sense in which that phrase was used before this act was passed" (Ely v. Bliss, 2 D. M. & G. 476, 477; see Culley v. Doe, 11 Ad. & Ell. 1008; Nepean v. Doe, 2 M. & W. 911; Doe v. Barton, 3 P. & Dav. 198; Jack v. Walsh, 4 Ir. L. R. 254).

Some of the principles, however, laid down in the old cases on adverse Adverse possession have been acted on in recent cases (See Scott v. Scott, 4 H. L. possession C. 1085). Thus, in Thomas v. Thomas (2 K. & J. 83), where a father, since 3 & 4 entering on the estate of his infant children, was held to have been in Will. 4, c. 27. possession as a bailiff for them, Wood, V.-C., applied and acted on the principle (Doe v. Brightwen, 10 East, 583) that possession is never considered adverse if it can be referred to a lawful title (See Wall v. Stanwick, 34 Ch. D. 763; Hobbs v. Wade, 36 Ch. D. 553; Bolling v. Hobday, 31 W. R. 9). Where a purchaser entered into possession of land, an undivided share in which was vested in a trustee for an infant, who did not join in the conveyance, the purchaser, having notice of the infant's rights, was treated as a bailiff for the infant, and was not allowed to plead the statute (Young v. Harris, 65 L. T. 45; see Quinton v. Firth, 2 Ir. Eq. 396; Allen v. Sayer, 2 Vernon, 368). In Pelly v. Bascombe (4 Giff. 394), Stuart, V.-C., said: 66 One effect of the statute 3 & 4 Will. 4, c. 27, is materially to alter the law as to what is called adverse possession. The present state of the law is as follows:-The fact of a person receiving the rents of a property raises a presumption that he receives them in the character of owner; but this presumption may be rebutted by express evidence to the contrary; by evidence affecting the person who has entered into possession, or by

evidence of the mode in which he has dealt with the rents." Accordingly, where a father seised of land made a will invalid as to real estate whereby he appointed his brother, to whom he was indebted, executor, and died leaving two infant daughters, and the uncle entered upon the real estate and kept down the interest on a mortgage, and laid out sums on improvements, his possession was not adverse to his nieces (Ib.; affirmed on appeal, 13 W. R. 306). As to a person entering on an infant's estate being a bailiff for him, see also Crowther v. Crowther, 23 Beav. 305; Howard v. Shrewsbury, 17 Eq. 398. As to a trustee's possession being set up as adverse to the cestui que trust's, see Stone v. Godfrey, 5 D. M. & G. 76. Before the Act 3 & 4 Will. 4, c. 27, the possession of a cestui que trust was not at law adverse to the title of the trustee (Smith v. King, 16 East, 283), and the same has been held since the act (Drummond v. Sant, L. R. 6 Q. B. 763). It was said that in the case of a mortgagee the doctrine of adverse possession had been revived by 7 Will. 4 & 1 Vict. c. 28 (Doe v. Eyre, 17 Q. B. 366). The occupation of a school by a schoolmaster for more than the statutory period did not give him an adverse right against the landlord; for his occupation was the occupation of the landlord, he being in the situation of a servant (Moore v. Doherty, 5 Ir. L. R. 449; see Ellis v. Crawford, 5 Ir. L. R. 404; Montmorency v. Walsh, 4 Ir. L. R. 254; Gibson v. Wise, 35 W. R. 409). Charitable trustees, however, acquired title by possession under a void grant, although one of their number was the person entitled to dispute the grant (Churcher v. Martin, 42 Ch. D. 312). See note as to possession, p. 120, post.

Where a solicitor received the rents of a mortgaged property, his possession was that of the client, and time did not run against the client (Ward v. Carttar, 1 Eq. 29). A principal may acquire a possessory title to real estate by receiving the rents through an agent, although that agent is the person really entitled to the estate (Williams v. Pott, 12 Eq. 149). And see as to receipt of rents by an agent, Smith v. Bennett, 30 L. T. 100. An owner in fee who had received rents through an agent died intestate. The agent, who continued to receive the rents, was held to act on behalf of the heir (Lyell v. Kennedy, 14 App. Cas. 437).

According to the law both before and since 3 & 4 Will. 4, c. 27, it is settled that if a tenant makes an encroachment adjoining to the land he rents, this encroachment will be for the benefit of his landlord, unless it appear clearly, from some act done at the time, that the tenant intended to make the encroachment for his own benefit (Doe v. Rees, 6 C. & P. 610; Doe v. Davies, 1 Esp. 461; Brian v. Winwood, 1 Taunt. 208; Doe v. Morris, 2 Bing. N. C. 189; see ante, pp. 39, 40; Doe v. Williams, 7 C. & P. 332; Doe v. Murrell, 8 C. & P. 134; Whitmore v. Humphries, L. R. 7 C. P. 1). As to when encroachments by the tenant on the waste do not belong to the landlord, see Doe v. Mulliner, 1 Esp. 460.

The landlord of A. and B., adjacent closes, demised A. The tenant of A. built upon B. without leave of the landlord, who, on permission being asked, refused it. The tenant having occupied both A. and B. for twenty years, paying rent to the landlord under the demise of A., but not expressly in respect of B., was held entitled to insist, as against the landlord, on a twenty years' occupation of B. within the 3 & 4 Will. 4, c. 27, ss. 2 and 3 (Doe v. Massey, 17 Q. B. 373). One who occupies as his own land belonging to another, and afterwards becomes tenant to the latter of land adjacent to the land so occupied, does not thereby change the character of his possession, but can, whilst he remains tenant, acquire as against his landlord a possessory title to the land first occupied (Dixon v. Baty, L. R. 1 Ex. 259).

Where a man in possession of land with a defective title devises it to A. for life with remainder over, and A. enters under the will, he is estopped from denying the title of the remainderman claiming under the same will (Re Stringer, 6 Ch. D. 10; Board v. Board, 9 Q. B. 48; see also Hawksbee v. Hawksbee, 11 Hare, 230; Asher v. Whitlock, L. R. 1 Q. B. 1; Yem v. Edwards, 1 De G. & J. 598).

But the same rule did not apply to the case where the testator had a

good title, but the devise to the tenant for life and remainderman was 3 & 4 Will. 4, held void (Re Stringer, 6 Ch. D. 1); nor where the particular land was c. 27, s. 2. not comprised in the devise to the tenant for life and remainderman (Paine v. Jones, 18 Eq. 320). See, however, the judgment of Martin, B., in Anstee v. Nelms, 1 H. & N. 225; 26 L. J. Ex. 5.

As to what acts amount to possession, see the note to sect. 3, post; as to the effect of certain acts in creating or determining a tenancy at will, see the note to sect. 7, post; and as to possessory titles under 3 & 4 Will. 4, c. 27, see the note to sect. 34, post.

under invalid devise.

Every claimant who has such a right of possession as would entitle him Rights of to maintain ejectment against a wrongdoer is still competent to take claimant to possession, of his own authority, if he can do so without committing a take possesbreach of the peace (Taylor v. Cole, 3 T. R. 292; Taunton v. Costar, 7 sion. T. R. 431; R. v. Wilson, 8 T. R. 357; Rogers v. Pitcher, 6 Taunt. 202; Turner v. Meymott, 1 Bing. 158; Co. Litt. 245 b; 1 M. & R. 221, n. (c); 5 Nev. & M. 164; R. v. Newlands, 4 Jurist, 322; Perry v. Fitzhowe, 8 Q. B. 757); but he cannot turn out the wrongdoer with violence (Edwick v. Hawkes, 18 Ch. D. 199). As to damages in case of a forcible entry by the rightful owner, see Beddall v. Maitland, 17 Ch. D. 174.

A landlord cannot lawfully acquire possession by a forcible entry after the expiration of the term (Newton v. Harland, 1 M. & G. 644; Jones v. Foley, 1891, 1 Q. B. 732); even under a licence from the tenant to that effect (Edwick v. Hawkes, 18 Ch. D. 199).

When right shall be deemed to have first accrued.

deemed to

3. In the construction of this act, the right to make an entry When the or distress, or bring an action to recover any land or rent, shall right shall be be deemed to have first accrued at such time as hereinafter is have first mentioned; (that is to say,) when the person claiming such accrued: land or rent, or some person through whom he claims, shall, in in case of an respect of the estate or interest claimed, have been in possession estate in or in receipt of the profits of such land, or in receipt of such rent, and shall, while entitled thereto, have been dispossessed, on dispossesor have discontinued such possession or receipt, then such right sion, shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at

possession,

which any such profits or rent were or was so received (7); and on abatement when the person claiming such land or rent shall claim the or death, estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death (m); and on alienation: when the person claiming such land or rent shall claim in respect of an estate or interest in possession granted, appointed or otherwise assured by any instrument (other than a will) to him, or some person through whom he claims, by a person being, in respect of the same estate or interest, in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument shall have been