3 & 4 Will. 4, c. 27, s. 3. in case of future estates: in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person, claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument (n); and when the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession (0); in case of for- and when the person claiming such land or rent, or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred, or such condition was broken (p). feiture or breach of condition. (1) Dispossession and discontinuance of possession of land. There must be actual (7) The first branch of sect. 3 deals with cases of dispossession and discontinuance of possession of land and discontinuance of receipt of rent. Dispossession is where a person comes in and drives out the others from possession: discontinuance of possession is where the person in possession goes out and is followed into possession by other persons (Per Fry, J., Rains v. Buxton, 14 Ch. D. 339). To dispossess a former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it (Per Bramwell, L. J., Leigh v. Jack, 5 Ex. Div. 264, 273). In cases of discontinuance regard must be had to the nature of the property (Ib.) There must be both absence of possession by the person who has the right and actual possession by another, possession by whether adverse or not, to be protected, to bring the case within the another. statute (Smith v. Lloyd, 9 Exch. 562; M'Donnell v. M'Kinty, 10 Ir. L. R. 514; see Rimington v. Cannon, 12 C. B. 1, post). And if, before the statutory period has expired, the intruder abandons possession, the rightful owner is in the same position in all respects as before the intrusion (Trustees' Co. v. Short, 13 App. Cas. 793). To bring a case within the statute, possession must be by the person wishing to assert the statute, and not by third persons, or by the custody of the law (Howlin v. Sheppard, 19 W. R. 253). As to the party upon whom the onus lies of proving the commencement of the wrongful possession, see Poole v. Griffith, 15 Ir. C. L. R. 239, 277. What is sion. A road, the soil of which was vested in A., ran from a highway to a well, actual posses the land upon each side belonging to B. B. built a wall across the mouth of the road, leaving a stile for foot passengers, and levelled the fences on each side of the road; it was held that if B.'s acts were done more than the statutory period before the action was brought, A.'s title was barred by the statute (Tottenham v. Byrne, 12 Ir. C. L. R. 376). As to possession by the erection of a fence, see Worssam v. Vandenbrande, 17 W. R. 53. As to what acts constitute possession of a ditch, see Searby v. Tottenham R. Co., 5 Eq. 409; Norton v. L. & N. W. R. Co., 13 Ch. Div. 268; of a boundary wall, Phillipson v. Gibbon, 6 Ch. 428; Waddington v. Naylor, 60 L. T. 480; of a gravel pit and road, Smith v. Stocks, 17 W. R. 1135. Acts done upon part of a piece of land may be evidence of possession of the whole, where there is a common character of locality (Jones v. Williams, 2 M. & W. 326; Bristow v. Cormican, 3 App. Cas. 641; Clark v. Elphinstone, 6 App. Cas. 164). A title to an underground cellar may be acquired by possession, of which the owner of the surface is ignorant (Rains v. Buxton, 14 Ch. D. 537) Where a rector built on a piece of land a school, which was placed under a committee of which he was a member, the possession was not nel was ac or of title to a funne c. 27, s. 3. such as to give the rector a statutory title to the land as glebe (Gibson v. 3 & 4 Will. 4, Wise, 35 W. R. 409; see Churcher v. Martin, 42 Ch. D. 312). A stranger may acquire by possession a title to land of a railway company, whether superfluous (Norton v. L. & N. W. R. Co., 13 Ch. Div. 268) or not superfluous (Bobbett v. S. E. R., 9 Q. B. D. 424). And a possessory title may be acquired, even though the true owner is under a statutory prohibition against letting or selling (Brighton v. Brighton Guardians, 5 Č.P. D. 368). See further the cases quoted ante, pp. 117, 118. In order to prove possession in an ejectment for mines, it is not suffi- Mines and cient to show that the plaintiff was lord of the manor: an actual posses- minerals. sion of them within twenty years must be proved (Rich v. Johnson, Str. 1142). A verdict for the plaintiff in trover for lead dug out of a mine will not prove possession of the mine; for trover may be brought on property without possession (Bull. N. P. 102; Adams on Ejectment, 263, 4th ed.) A man who had entered and worked two seams of coal was held under Possession of the circumstances to have taken possession of seven seams lying under the minerals. same lands (Low Moor Co. v. Stanley Coal Co., 34 L. T. 186); in which case, however, it was said, that where a man has entered upon and taken possession of one seam, and by lapse of time has acquired some title to it, the law will not assume that his possession extends to all other seams lying under that one. As to when working one part of a mine is evidence of possession of the whole, see Taylor v. Parry, 1 M. & Gr. 604; Wild v. Holt, 9 M. & W. 672. Where a mine owner in working his own coal went on working into the vein, and for more than twenty years worked coal lying under his neighbour's land, it was held under the circumstances that he had not acquired any title to the adjoining mine by possession (Ashton v. Stock, 6 Ch. D. 719). Acts of trespass by working coal, of which the then owner of the coal mine was ignorant, were held not to constitute adverse possession of the mine within this statute (Dartmouth v. Spittle, 19 W. R. 444; see as to ignorance, Rains v. Buxton, 14 Ch. D. 537). When the defendant, being entitled to a mere right of way over land Effect of belonging to a stranger which adjoined his farm, used for more than possession of twenty years such adjoining land as part of his farm, he was held to have surface. acquired by possession of the surface a good title to the minerals underlying such adjoining land (Seddon v. Smith, 36 L. T. 168). A lessee, Where title under a lease in which mines were not reserved, who was in possession of to surface and the surface, was held to be in possession of the mines (Keyse v. Powell, 2 minerals is Ell. & Bl. 132). But where the owner in fee of land with minerals under not severed; it conveyed the surface to A., excepting the minerals to himself, his heirs is severed. and assigns, and reserving liberty to enter and work, and such right of entering had not been exercised for more than forty years, but no other person had worked the mines, it was held that the owner was not barred (Smith v. Lloyd, 9 Exch. 562; see M'Donnell v. M'Kinty, 10 Ir. L. R. 514; Seaman v. Vaudrey, 16 Ves. 390). Lord St. Leonards was of opinion that the expression "in receipt of the Receipt of profits of any land," is used in the act, in conjunction with the words "in profits of possession of the land," to denote not the receipt of rent from a tenant, but land. the receipt of the actual proceeds of the land (R. P. Stat. 47). By sect. 35 (p. 169, post), the receipt of the rent payable by any tenant from year to year, or other lessee, is, against such lessee or any person claiming under him (but subject to the lease), the receipt of the profits of the land for the purposes of this act. As to receipt of rents by agent, see note, ante, p. 118. The provisions of this section as to discontinuance of the receipt of rent Discontinuonly apply when the party entitled to the rent does not apply for payment, ance of or omits to enforce his remedies with knowledge that the payment has not receipt of been made (Adnam v. Sandwich, 2 Q. B. D. 485). rent. Where a party has been in receipt of rent and afterwards discontinues Point from such receipt, the statute fixes the point from which time is to run at the which time day on which the last payment of rent was made, and the party claim- runs. ing has not the option of calculating from the time when he discontinued the receipt of rent (Owen v. De Beauvoir, 16 M. & W. 547; 5 Exch. 166; see Irish Land Commission v. Grant, 10 App. Cas. 27; and the note to 3 & 4 Will. 4, c. 27, s. 3. Seizure quousque. (2) Wrongful possession commencing on death. (3) Wrongful possession commencing on alienation by rightful owner. sect. 34, post). Under 3 & 4 Will. 4, c. 27, a person dispossessed of land is allowed twenty years from the time of his being dispossessed to bring ejectment. But a person disseised of rent has only twenty years from the last payment; and so, if an annual rent has been paid on the day on which it became due, and afterwards unjustly withheld, the party aggrieved has only nineteen years during which he can bring his action or distrain; for during the first year he has no right of distress or action at all (16 M. & W. 565). The Act 37 & 38 Vict. c. 57 (post, p. 194), has fixed the period of limitation at twelve, instead of twenty, years. Where an old rent-charge had always been received from the occupier of one part of the premises charged, and another part for more than the statutory period had been in a separate ownership, and the owner had never paid the rent, the right to distrain on the latter portion was not barred (Woodcock v. Titterton, 12 W. R. 865; cf. Dublin v. Trimleston, 12 Ir. Eq. R. 251). Where the rents of mines are reserved by means of payment of produce in specie, time will run under the statute from the receipt and not from the sale of such produce by the lessor (Denys v. Shuckburgh, 4 Y. & Coll. 42; see M'Donnell v. M'Kinty, 10 Ir. L. R. 514). Where a copyhold tenant had not paid his fine, and the lord seized quousque, and thirty-seven years expired, and the heir of the tenant offered the fine, and then filed a bill to compel admittance; it was held that time ran from the date of the seizure, on the ground that it was the duty of the copyhold tenant to pay the fine (Walters v. Webb, 5 Ch. 531). (m) The second branch of sect. 3 deals with cases where wrongful possession commenced on the death of a rightful owner. "Thus where A., seised in fee in possession dies either intestate, leaving B. his heir, or having devised to B. in fee or for a less estate (sed qu., James v. Salter, 3 Bing. N. C. 544), and C., a stranger, first obtains possession after the death of A., the time runs against B. from A.'s death, and not from C.'s entry" (1 Hayes, Conv. 248). Lord St. Leonards seems to be of opinion that a rent newly created by will (as in James v. Salter, 3 Bing. N. C. 544), would fall within this second branch of sect. 3 (R. P. Stat. 22). But this opinion is questioned (Darb. & Bos. Stat. Lim. 228). A. let land to B. by parol from year to year, reserving rent payable in March and November. The last payment of rent was in March, 1846: A. died in December, 1846; time ran, under sect. 8, from the last payment of rent, and not from A.'s death, under sect. 3 (Baines v. Lumley, 16 W. R. 674). (n) The third branch of sect. 3 deals with cases where wrongful possession commenced on alienation by a rightful owner. On the construction of the words "other than a will" in this branch, see James v. Salter, 3 Bing. N. C. 544. It was held by the Court of Common Pleas (differing from the Queen's Bench, Doe v. Phillips, 10 Q. B. 130) that the case of a cestui que trust Cestui que trust holding land under a trustee does not fall within this clause (Garrard v. in possession. Tuck, 8 C. B. 231). (4) Future interests. (0) The fourth branch of sect. 3, together with sect. 20, and sect. 2 of 37 & 38 Vict. c. 57 (post, p. 194), which has been substituted for sect. 5 of 3 & 4 Will. 4, c. 27, deal with future interests. The words in this branch of sect. 3, "or other future estate or interest," were said to be large enough to comprehend, and would comprehend, all executory devises (James v. Salter, 3 Bing. N. C. 554, ante, p. 113; see Doe v. Liversedge, 11 M. & W. 517, post, sect. 20, n., for a case of a future estate within these words). Where a tenant for life aliens in fee, time does not run against the remainderman until the death of the tenant for life (Doe v. Rolfe, 8 Ad. & Ell. 650; see Scott v. Scott, 4 H. L. C. 1084). In 1788 estates were settled to the use of the wife for life, with remainder to her issue in tail, with remainder to the settlor (whose heiressat-law she was) in fee. In 1818, by deeds to which the husband and wife and their only son, R. G., were parties, and by a recovery suffered in pursuance thereof, the estates were limited to the use of the husband for life, remainder to the wife for life, remainder to R. G., the son, for life, remainder to his issue in tail, remainder to J. F., his sister, for life, with other remainders over. The husband died in 1819, the wife in 1822, and R. G. in 1828: it was held, that, inasmuch as the estate of J. F. was carved out of the estate by R. G., she had the same period for bringing an ejectment in respect of any estates comprised in the above deeds as he would have had if he had continued alive, viz., twenty years from the year 1822, when his remainder came into possession. The effect of the deed of 1818 and of recovery was to bar all remainders over, and to create new estates out of his estate tail (Doe v. Edmonds, 6 M. & W. 295). 3 & 4 Will. 4, c. 27, s. 3. When a landlord merely omits to compel his lessee, during the con- Landlord and tinuance of a lease, to pay rent, and there has been no payment to any tenant. other person, time runs from the determination of the lease (Doe v. Oxen ham, 7 M. & W. 131, 133, 134; see Grant v. Ellis, 9 M. & W. 113; Doe v. Godsill, 4 Q. B. 603, n.) Upon the renewal of a lease the landlord's estate became an estate in possession, and his right of action accrued (Eccl. Commissioners v. Rowe, 5 App. Cas. 741). reference to feel. Commissioners & Freemer For the case of leases containing a clause of ré-entry for non-payment Husband and of rent, see note to sect. 4, post. wife. If husband and wife, being seised in fee in right of the wife, convey to a purchaser by a conveyance not operative to bind her, the wife, if she survives, and if not, her heir, may, on the husband's death, recover the land, notwithstanding the purchaser may have been in possession for forty years. It was held that the right of the wife came within the fourth branch of sect. 3, as being a future estate or interest (Jumpsen v. Pitchers, 13 Sim. 327). The case would be different if the husband and wife simply discontinued possession (Sugden, R. P. Stat. 83; see also Cannon v. Rimington, 12 C. B. 1). See further as to future interests, the notes to sect. 20, and 37 & 38 Vict. c. 57, sect. 2 (post, p. 194). (p) The fifth branch of sect. 3 and sect. 4 deal with rights arising on forfeitures and breaches of conditions, as to which see note to sect. 4. (5) Rights breach of 18931 Forfeiture. forfeiture is have a new 4. Provided always, that when any right to make an entry When ador distress, or to bring an action to recover any land or rent by vantage of reason of any forfeiture or breach of condition, shall have first not taken by accrued in respect of any estate or interest, in reversion or re- remaindermainder, and the land or rent shall not have been recovered by man, virtue of such right, the right to make an entry or distress, or right when bring an action to recover such land or rent shall be deemed to his estate have first accrued, in respect of such estate or interest, at the comes into time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened (1). (1) The above section must be read in connection with, and forms a proviso upon, the last branch of section 3. The words "forfeiture" and "breach of condition" are to be read in their largest sense, including forfeitures which give a right to an estate under a conditional limitation, as well as forfeitures which can only be taken advantage of by the heir (Astley v. Essex, 18 Eq. 290). See also as to this section the remarks of Thesiger, L. J., Magdalen Hospital v. Knotts, 8 Ch. Div. 727. The proviso contained in sect. 4 in fact preserves the previous law (See 1 Ves. sen. 278; Doe v. Blakeway, 5 C. & P. 563; Doe v. Danvers, 7 East, 299). The lord of a manor is barred by the statute from entering for a forfeiture of copyholds after the expiration of the statutory period (Witton v. possession. Entry for 3 & 4 Will. 4, c. 27, s. 4. of rent. Peacock, 3 M. & K. 325). Where the lord died before entry or seizure for forfeiture, the reversioner or remainderman could never take advantage of the forfeiture done or committed before their time (Montagu's case, Cro. Jac. 301; Co. Cop. s. 60; Doe v. Hellier, 3 T. R. 162; see Doe v. Trueman, 1 B. & Ad. 744; Doe v. Bousfield, 6 Q. B. 492); unless the act of forfeiture destroys the estate (3 T. R. 173). As to the forfeiture of copyholds, see Shelford on Copyholds, pp. 148-172; Scriven, 178 et seq., 6th ed.; Chamberlain v. Drake, 2 Sid. 8; and for waste, Eastcourt v. Weeks, Salk. 186; Lutw. 799; Bird v. Kirkby, 1 Mod. 199; Carter, 237; Gilb. Ten. 249. Clause of With regard to express clauses of re-entry for non-payment of rent, it re-entry for is settled that in Ireland a landlord is not barred from recovering_rent non-payment by non-payment for the statutory period (Cosbie v. Sugrue, 9 Ir. L. R. 17; Parke v. McLoughlin, 1 Ir. C. L. R. 186; Spratt v. Sherlock, 3 Ir. C. L. R. 69; overruling Doe v. Bingham, 3 Ir. L. R. 456). In the case of an English lease containing such a clause, it has been suggested that a fresh right to re-enter accrues every time a fresh default in payment of rent is made (Darb. & Bos. Stat. Lim. 251; see Doe v. Bliss, 4 Taunt. 725; Macher v. Foundling Hospital, 1 Ves. & B. 191). In the case of certain covenants and conditions, sect. 14 of the Conv. Act, 1881, now requires notice to be given before a lessor's right of re-entry or forfeiture can be enforced by action. See the section at length, post. Notice of condition. Old law as to conditions of re-entry; in leases for lives; in leases for years. Present state of the law. Where a party is really ignorant of the existence of an instrument in which the condition is contained, and where he would have a good title if there were no such instrument, a neglect of the terms of the condition will not subject him to a loss of the estate; and the party entitled to avail himself of the condition must take care to make it known to the person who was to comply with it (France's case, 8 Rep. 89 b; Shep. T. 148; Mallon v. Fitzgerald, 3 Mod. 28; Skinn. 125; Doe v. Beauclerk, 11 East, 657). But a person who takes by gift under a will cannot plead want of knowledge of the contents of the will as an excuse for not complying with its provisions (Astley v. Essex, 18 Eq. 297); unless he is the testator's heir and could, but for the will, have taken as such (Ib.; see Doe v. Crisp, 8 Ad. & Ell. 779; Porter v. Fry, 1 Vent. 199). In cases of conditions of re-entry there was a difference between leases for lives and leases for years. As to leases for lives, if the tenant was guilty of any breach of the condition of re-entry the lease was only voidable, and not determined until the lessor re-entered, though the clause of the condition should be that the lease should be void. For it was a rule that where an estate commences by livery it could not be determined before entry (Browning v. Beston, Plowd. 135, 136). But a lease for years, with a condition that, for non-payment of the rent or the like, the lease should be null and void if the lessee was guilty of any breach of the condition, was absolutely determined (Goodright v. Davids, Cowp. 804). But if in such a lease the clause was that for non-payment of the rent it should be lawful for the lessor to re-enter, the lease was only voidable, and might be affirmed by acceptance of rent accrued due after, or other act (Browning and Beston's case, Plowd. 133; Pennant's case, 3 Rep. 64 a, b; 65 a, b; Co. Litt. 215, a; Goodright v. Davids, Cowp. 804; see 1 Wms. Saund. 441, ed. 1871). Since the statutes 7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106, s. 2, estates for life may commence without livery; and the distinction taken above between leases for lives and leases for years (in those cases where the clause is, that the lease shall be void on breach of the condition) seems therefore to be now inapplicable (1 Smith's L. C. 54, 9th ed.) But even in the case of a lease for years which contains a proviso that it shall be void for non-payment of rent or other breach of covenant, the modern authorities seem to establish that such a lease in case of a breach shall be regarded as voidable only, so that the landlord, by the acceptance of rent or the like, with notice of the breach, will waive the forfeiture (Roberts v. |