The right to the land is not barred by being out of possession unless some other is in possession (Ketchum v. Ingleton, 14 Q. B. 99; Lloyd v. Henderson, 25 C. P. 253); but an owner out of possession for twenty years may be barred, though no one of the occupants may have obtained a statutory title (Kipp v. Incorporated Synod of Diocese of Toronto, 33 Q. B. 220); though a person seeking to invoke the aid of the Statute against a claim in respect of lands must shew that he, and those under whom he claims, have been in possession of the land, or what in law is equivalent to possession. Arner v. McKenna, 9 Chy. 226.

The question of possession seems to have been decided according to the particular case, and according to the evidence in each case. The line of decisions is not well marked, and the decisions themselves are so inconsistent that it leaves a wide field for dispute.

Is the payment of taxes good evidence of possession? In Doe d. McDonell v. Rattray, 7 Q. B. 321: "Semble: the payment of taxes in itself signifies nothing in making good a title by possession ;" while Davis v. Henderson, 29 Q. B. 344, Doe d. Perry v. Henderson, 3 Q. B. 486, appear to be almost exactly opposite. See also with regard to possession, McQueen v. McQueen, 10 Q. B. 193; Doe d. Shepherd v. Bayley, 10 Q. B. 310; Allison v. Rednor, 14 Q. B. 459; Young v. Elliot, 23 Q. B. 420.

POSSESSION AMONG RELATIVES.

Probably one of the latest cases on this point is that of Stephens v. Simpson, 12 Chy. 493, affirmed on appeal, A. Wilson, J., dissenting, 15 Chy. 594.

In this case John Simpson, the testator, left the property to his wife in fee by will, and died in 1831. Will was not registered; the eldest son and heir at law went to live on the homestead at that time with his mother, and paid taxes and exercised acts of ownership. The mother died in 1855. Eight years after the death of the mother, the eldest son

(who had been on the land since 1831) mortgaged the farm, and this suit was brought by the mortgagee to foreclose the mortgage. Held, the will void as against a duly registered mortgage. The possession must be treated as that of the heir at law; that his brothers and sisters could not, as against a bona fide purchaser or mortgagee, allege the possession to have been that of the widow, and thereby set up a title under the Statute; and that, as against such purchaser or mortgagee, the will, under the registry laws, must be treated as fraudulent and void. Vide White v. Haight, 11 Chy. 420; Holmes v. Holmes, 17 Chy. 610; Fraser v. Fraser, 14 C. P. 70.

In the case of Orr v. Orr, 31 Q. B. 13, it was held that defendant had no possession as against the mother during her life. See also Canada Co. v. Douglass, 27 C. P. 339.

Stephens v. Simpson appears to have been decided more on the peculiar equities of the case. Equity is a very good thing, but when courts of law follow not the decisions it is difficult for lawyers to give an opinion as to what is law. The system of deciding cases on their own merits, without regard to decisions, has been carried so far in our sister Province of Quebec, that the best of lawyers give an equally strong opinion in favour of the merits of both sides of almost any case.

Doe d. Silverthorne v. Teal, 7 Q. B. 370, makes manifest a state of circumstances in which, with all possible care under the old Statute, yet the right to the land was lost. In 1822, A. a maniac, conveyed land to B., who then entered into possession. A. died in 1826. C., his eldest son and heir, became of age in 1829, and died the same year. His brother and heir at law, D., the lessor of the plaintiff, became of age in 1831, and brought his ejectment against B. on the ground that his father was non compos at the time of his executing the deed in 1822. D. brought his action more than ten years after the lunatic died, and after he himself came of age, and more than five years after

4 Wm. IV. cap. 1. Held, that D. under these facts was barred; held, also, that B. could not be considered in possession as the servant or bailiff of the lunatic.

The case of McArthur et al. v. McArthur, 14 Q. B. 544, seems to be almost in exact opposition to Stevens v. Simpson. If anything, in the former case the equity of the younger brother, who worked the land, seems to be stronger than the latter case of the elder brother. Vide also Rumrell et al. v. Henderson, 22 C. P. 180.

Two rather opposite decisions with regard to possession may be noticed in Foster v. Emerson, 5 Chy. 135; and Keffer v. Keffer, 27 C. P. 257.

Defendant's father had been in possession of land to which he had no title, legal or equitable, and the legal owner then conveyed it to defendant, a youth about twelve years old, who was living on the lot with his father, and continued to do so for eleven years thereafter, when the property was sold on an execution against the father. Held, that the possession after the execution of the deed was the possession of the son; that the father acquired no title thereby against the son; and that the sheriff's deed was void against the son, and should be set aside as a cloud on his title. McKinnon v. McDonald, 11 Chy. 432.

Two brothers, tenants in common in fee, maintained their father with them on the property. One of the brothers died intestate, leaving his father his heir. The father continued to live with the surviving brother on the property, and to be maintained by him; the father did not affect to be the owner of the property. Held, that this living on the property was sufficient to prevent the Statute from running against the father as respected his undivided moiety. Holmes v. Holmes, 17 Chy. 610.

POSSESSION OF SERVANT OR CARETAKER.

If defendant can be shewn to have been occupying the land as the servant of the owner during the twenty years,

and not for his own use or benefit, the Statute will not run. Doe d. Perry et al. v. Henderson, 3 Q. B. 486; see also Doe d. Quincy v. Canniff, 5 Q. B. 602; Doe d. Silverthorne v. Teal, 7 Q. B. 370.

Cases decided on possession before 4 Wm. IV. cap. 1: Doe d. McKay v. Purdy, 6 O. S. 144. The Statute 4 Wm. IV. cap. 1, has a retrospective operation. Also Doe d. Kingsley v. Stewart, 5 Q. B. 108.

ACTUAL AND CONSTRUCTIVE POSSESSION.

Seisin in fee cannot be presumed from a mere constructive possession, but from an actual, visible possession only. Doe d. Morgan v. Simpson, 5 O. S. 335; but see Burns' Justice, in Pringle v. Allan et al., 18 Q. B. 575: "Discontinuance may be of a constructive as well as of an actual possession; and in this case there was evidence to go to the jury to find whether the plaintiff had not discontinued the constructive possession which he acquired by descent on the death of the patentee." See Moffatt v. Walker, 15 Chy. 155.

The difference between a mortgagor and trespasser is clearly laid down in Doe d. Dunlop v. McNab, 5 Q. B. 289. Where several lots of land are mortgaged, and the mortgagor and his heir remain in possession of one of them for more than twenty years, so as to bar, under our Statute 4 Wm. IV., the mortgagee's title, held, that the mortgagor's title by possession is not like that of a mere trespasser, but covers the whole land included in the mortgage, as well the lot upon which the mortgagor lived as the other unoccupied lots.

(2). Where the person claiming such land or rent claims the estate or interest of some deceased person who continued in such possession or receipt, in respect of the same estate or interest, until the time of his death, and was the last person entitled to such estate or interest who was in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death. C. S. U. C. cap. 88, s. 2.

(3). Where the person claiming such land or rent claims 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 receipt of the rent, and no person entitled under such instrument has been in 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. C. S. U. C. cap. 88, s. 2.

(4). In the case of lands granted by the Crown of which the grantee, his heirs or assigns, by themselves, their servants or agents, have not taken actual possession by residing upon or cultivating some portion thereof, and in case some other person not claiming to hold under such grantee has been in possession of such land, such possession having been taken while the land was in a state of nature, then unless it can be shewn that such grantee or such person claiming under him while entitled to the lands had knowledge of the same being in the actual possession of such other person, the lapse of TEN years shall not bar the right of such grantee or any person claiming under him to bring an action for the recovery of such land, but the right to bring an action shall be deemed to have accrued from the time that such knowledge was obtained; but no such action shall be brought or entry made after TWENTY years from the time such possession was taken as aforesaid. 27 & 28 Vic. cap. 29, s. 1; 38 Vic. cap. 16, s. 15.

POSSESSION WITH REGARD TO WILD LANDS.

The earlier cases seem to hold that the title can only be acquired by possession of the part actually occupied. Vide Doe d. McDonnell v. Rattray, 7 Q. B. 321.

"It must depend upon the circumstances of each case whether the jury may not, as against the legal title, properly infer possession of the whole land covered by such title, though the occupation by open acts of ownership, such as clearing, fencing and cultivating, has been limited to a portion;" and held, that in this case there was evidence legally sufficient to warrant such inference. Dundas v. Johnson, 24 Q. B. 547.

Vide also, limiting the quantity of land to the part actually occupied by the squatter as against the true owner: Young v. Elliot, 25 Q. B. 330; Wishart v. Cook, 15 Chy. 237; Love v. Morrison, 14 Chy. 192.