the occupation of the soil: the person who is in the receipt of them can 3 & 4 Will. 4, c. 27, s. 9. In Doe v. Angell (9 Q. B. 328), there was an adverse receipt of rent Cases under which would have barred an action under this section. In that case sect. 9. Lord Denman discussed the meaning of the word rent in the act, pointing Doe v. Angell. out that it meant rent-charge, in sections 2, 3, 4, 5, 7, 8, and 9 (See Baines v. Lumley, 16 W. R. 675). The right to recover land subject to a lease is to be considered as having When time accrued not from the time when any person dealing with the leases, or begins to run. dealing with those entitled to the leases, gets possession, and claims to be entitled to the fee, but from the time when the person claiming under a lease pays rent to a party claiming wrongfully in reversion immediately expectant on such lease (Chadwick v. Broadwood, 3 Beav. 316; see Arch bold v. Scully, 9 H. L. C. 360; Twiss v. Noblett, I. R. 4 Eq. 60). A person Wrongful claiming without any real title to be entitled to land is a person "wrong- receipt of fully" claiming within the meaning of this section, although the claim rent within may be put forward under a mistake, and without any improper intention this section. to deprive others of their property (Williams v. Pott, 12 Eq. 149). For the bearing of this section on the case where there is a lease and a sublease, and the parties claiming under the sub-lease pay their rent directly to the head landlord, see Drew v. Lord Norbury (3 J. & Lat. 306). See further, as to wrongful receipt of rent within this section, Sloane v. Flood (5 Ir. C. L. 75); Shaw v. Keighron (I. R. 3 Eq. 574). A disclaimer imports a renunciation by the party of his character of Disclaimer of tenant, either by setting up a title in another, or by claiming title in him- landlord's self (1 M. & G. 139). And if a tenant disavowed his landlord's title by title. attorning to another, and the landlord was apprised of it and acquiesced, the possession of his tenant became adverse, and the statute would have run against the landlord (Hovenden v. Annesley, 2 Sch. & Lef. 624). But where there is no disavowal of the tenure, the mere nonpayment of rent by the tenant for a number of years did not bar the remedies of the landlord at the expiration of the term (2 Sch. & Lef. 625, 626). Payment of rent to another party without the consent or knowledge of the landlord, after an adverse possession of twenty-three years, did not amount to an attornment; and the fraudulent act of a tenant in betraying the possession of his landlord by disclaiming tenure under him, and admitting a title in a third person, would not affect the landlord's title, so long as he had a right to consider the person as holding possession as tenant (Meredith v. Gilpin, 6 Price, 146). Payment of rent by a lessee to a lessor, after the lessor's title has expired, and after the lessee has notice of an adverse claim, does not amount to an acknowledgment of title in the lessor, or to a virtual attornment, unless at the time of payment the lessee knew the precise nature of the adverse claim, or the manner in which the lessor's title had expired, and such knowledge is a fact to be decided by the jury (Fenner v. Duplock, 2 Bing. 10). A tenant, though not permitted to deny the right of demising, may rely upon his landlord's title having expired (Downs v. Cooper, 2 Q. B. 256). The act of a tenant in setting up a title adverse to that of his landlord, in order to obtain the freehold, operates as a forfeiture of his term, and it is the same whether he does it himself, or assists another to do it (Doe v. Flynn, 1 C. M. & R. 137). But a tenant for a definite term of years does not forfeit his term by orally refusing, upon demand of the rent made by his landlord, to pay the rent, and claiming the fee as his own (Doe v. Wells, 10 Ad. & Ell. 427). In order to make a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation 3 & 4 Will. 4, c. 27, s. 9. of landlord and tenant; or to a distinct claim to hold possession of the estate, upon a ground wholly inconsistent with the existence of that relation, which by necessary implication is a repudiation of it (Doe v. Pasquali, Peake, N. P. C. 196; Doe v. Stanion, 1 M. & W. 703; see Doe v. Cooper, 1 M. & G. 135; Rees v. King, Forrest, 19). An assertion by a yearly tenant that he has a right to hold at a customary rent amounts to a disclaimer (Vivian v. Moat, 16 Ch. D. 730). On disclaimer, see Woodfall's L. & T. 376 et seq., 14th ed. A mere entry not to be deemed possession. Acts sufficient to interrupt adverse possession. Entry. 10. No person shall be deemed to have been in possession of any land within the meaning of this act merely by reason of having made an entry thereon (y). (y) By stat. 21 Jac. 1, c. 16, it was enacted, that no entry should be made by any man upon lands, unless within twenty years after his right should accrue. By the stat. 4 & 5 Ann. c. 16, s. 14, it was enacted, that no entry upon lands should be of force to satisfy the Statute of Limitations (21 Jac. 1, c. 16), or to avoid a fine levied of lands, unless an action were thereupon commenced within one year after, and prosecuted with effect (See 1 Wms. Saund. 319, n. (1); 10 B. & C. 848). The defendant being in adverse possession of a hut and piece of land, the lord of the manor entered in the absence of the defendant, but in the presence of his family said he took possession in his own right, and he caused a stone to be taken from the hut, and a portion of the fence to be removed. It was held that these acts were not sufficient to disturb the defendant's possession under this section (Doe v. Combes, 9 C. B. 714). But where the only adverse possession taken by the defendant consisted in the erection of a fence, and the plaintiff entered and wholly destroyed the fence, it was held that the defendant's possession was disturbed (Worssam v. Vandenbrande, 17 W. R. 53). No right to be preserved Continual Claim. 11. No continual or other claim upon or near any land shall by continual preserve any right of making an entry or distress or of bringing an action (z). claim. (z) Previously to the enactment in this and the preceding section an actual entry made by one who had a legal right to enter on an estate, or by his agent duly authorized by power of attorney, if made peaceably and repeated once in the space of every year and a day (which was called continual claim), was deemed sufficient to prevent the right of entry from being tolled by a descent cast or discontinuance, or barred by the Statute of Limitations (Litt. ss. 414, 415; Runn. Eject. 51, 52, 2nd ed.; Ad. Eject. 101, 3rd ed.; Ford v. Grey, 1 Salk. 285). Actual entry was sufficient to keep alive the right of a person disseised, but a mere demand, without process or acknowledgment, was not sufficient against the Statute of Limitations (Hodle v. Healey, 1 Ves. & B. 540). Possession of one coparcener, &c. not Coparceners, &c. 12. When any one or more of several persons entitled to any land or rent as coparceners, joint tenants, or tenants in common, the others. shall have been in possession or receipt of the entirety, or more 3 & 4 Will. 4, than his or their undivided share or shares of such land, or of c. 27, s. 12. the profits thereof, or of such rent, for his or their own benefit, to be the or for the benefit of any person or persons other than the person possession of or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons, or any of them (a). of limitation. (a) Coparceners, joint tenants, and tenants in common, having a joint How coparpossession and occupation of the whole estate, it was a settled rule of law ceners, &c. that the possession of any one of them was the possession of the others or were affected other of them, so as to prevent the statutes of limitation from affecting by old statutes 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; Burton's Compendium, 395 et seq.; see Doe v. Keen, 7 T. R. 386; Doe v. Pearson, 6 East, 173; O'Sullivan v. M‘Swiney, 1 Long. & T. 111). 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). This section makes the possession of one coparcener, joint tenant, or Effect of tenant in common, who has been in possession of the entirety, separate sect. 12. from the time of his coming into possession (Culley v. Doe, 11 Ad. & Ell. 1008; O'Sullivan v. M'Swiney, 1 Long. & T. 118, 119; Doe v. Horrocks, 1 Car. & K. 566). Consequently, the entry of one coparcener cannot have the effect of vesting the possession in the other (Woodroffe v. Doe, 15 M. & W. 792). 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, 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 having, in any manner, interfered in the trust. It was held, that the title of the fifth tenant in common was barred; the case not being within the saving of the 25th section, for the defendants had not received the rents under, but in opposition to, the trustees (Burroughs v. M‘Creight, 1 J. & Lat. 290; Bolling v. Hobday, 31 W. R. 9). And where a father was in receipt of the whole rents of a property one undivided share of which belonged to an infant child, and another share to an adult child, the title of the adult was held barred after the statutory period, although, as regards the infant's share, the father was considered as the infant's bailiff (Hobbs v. Wade, 36 Ch. D. 553). A presumption that one tenant in common had accounted to his co-tenant for a share of the rents was raised in Sanders v. Sanders (19 Ch. Div. 373). This section applies, not only to the case where one of several joint tenants has been in possession of the entirety of the whole of the lands held jointly, but also to the case where such tenant has been in possession of the entirety of any portion of such lands (Murphy v. Murphy, 11 Ir. C. L. R. 205, where Tidball v. James, 29 L. J. Ex. 91, is explained). Where two persons were in lawful possession of a copyhold, and the title under which they held came to an end, but they continued in possession for twenty-one years, it was decided that they held on as joint tenants; and inasmuch as they had done nothing to sever their tenancy, the interest of the one who died first determined on his death (Ward v. Ward, 6 Ch. 789; Bolling v. Hobday, 31 W. R. 9; see Williams v. Williams, 2 Ch. 294). Where one tenant in common as tenant at sufferance occupies the whole property after the expiration of a lease granted to him by his co-tenant, he will be liable for rent to his co-tenant in an action for use and occupation (Leigh v. Dickeson, 15 Q. B. Div. 60). In partition actions tenants in common have been charged with an occupation rent (Pascoe v. Swan, 3 & 4 Will. 4, c. 27, s. 12. 27 Beav. 508; Teasdale v. Sanderson, 33 Beav. 534). In general, however, independently of a lease, mere occupation by one of several tenants in common, if unaccompanied by exclusion, does not make him liable for rent (M'Mahon v. Burchell, 2 Phil. 127; 1 Coop. 457). Nor can an action for money had and received be maintained, the remedy being an action of account under 4 Anne, c. 16, s. 27 (Thomas v. Thomas, 19 L. J. Exch. 175); nor in the absence of ouster can trespass be maintained (Jacobs v. Seward, L. R. 5 H. L. 464). Where one tenant in common of a wall excludes the other by means of an obstruction, the remedy is to remove the obstruction (Watson v. Gray, 14 Ch. D. 192). With regard to the statute 4 Anne, c. 16, s. 27, it was held before the Jud. Acts that as the only remedy mentioned was an action, there was no relief in equity unless the case was one in which such action would lie. An executor, who had been co-tenant 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 Phil. 308; 17 Q. B. 701; and see further, as to actions under the statute, Shirton v. Richardson, 13 M. & W. 17; Gorley v. Gorley, 1 H. & N. 144; Murray v. Hall, 7 C. B. 441). One tenant in common of a house who spends money in ordinary repairs has no right of action against his co-tenant for contribution (Leigh v. Dickeson, 15 Q. B. Div. 60; see Johnson v. Wild, 44 Ch. D. 146). Possession of a younger brother not to Possession of Younger Brother, &c. 13. When a younger brother or other relation of the person entitled as heir to the possession or receipt of the profits of any be the posses land, or to the receipt of any rent, shall enter into the possession or receipt thereof, such possession or receipt shall not be deemed to be the possession or receipt of or by the person entitled as heir (b). sion of the heir. Prior state of the law. (b) The effect of this section is illustrated in the judgment of the court in Jones v. Jones, 16 M. & W. 712. If a man, seised of certain lands in fee, had issue two sons, and died 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 (Litt. s. 396; Sharington v. Shrotton, Plowd. 306). So where a sister entered (Page v. Selby, Bull. N. P. 102; 2 Stark. on Ev. 220, 2nd ed.; Co. Litt. 242; Plowd. 298, 306; see Dowdall v. Bryne, Batty's Ir. R. 373). A. was possessed of lands for more than twenty years, and died in 1817. His widow had possession from that time until her death in 1838. B. was the eldest son of A. and his wife. It was held, that although B. could not recover in ejectment as the heir of his father, because more than twenty years had elapsed from the death of his father, yet that the jury might infer that the property belonged to B.'s mother, and survived to her on the death of his father, and descended to B. as heir on her death in 1838 (Doe v. Long, 9 C. & P. 773; see Doe v. Lawley, 13 Q. B. 954). Acknowledg ment in Written Acknowledgment of Title. 14. Provided always, and be it further enacted, that when writing given 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 to the person entitled, or c. 27, s. 14. to possession profits of such land, or in receipt of such rent, then such pos- 3 & 4 Will. 4, session or receipt, of or by the person by whom such acknowledgment shall have been given, shall be deemed, according to his agent, to the meaning of this act, to have been the possession or receipt be equivalent of or by the person to whom, or to whose agent such acknow- or receipt of ledgment shall have been given at the time of giving the same, rent. 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). statutes of (c) The requiring an acknowledgment in writing to take a case out of Different the statute 3 & 4 Will. 4, c. 27, was by analogy to the statute 9 Geo. 4, sections as to c. 14, adopted in this section, in the 42nd section of this act, in the 5th acknowledgsection of the 3 & 4 Will. 4, c. 42, and in sects. 7 and 8 of 37 & 38 Vict. ments in the c. 57. A difference occurs in the language of these sections. Thus, limitation. under the 14th section, the acknowledgment is to be given to the party entitled to land or rent, or his agent, signed by the person in possession. By sect. 7 of 37 & 38 Vict. c. 57, twelve years' possession by a mortgagee will bar the right of redemption, unless an acknowledgment in writing 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 sect. 8 of 37 & 38 Vict. c. 57, money charged upon land and legacies cannot be recovered after the end of twelve years, unless in the meantime 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 whom the same was payable, or his agent. In the 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 sect. 7 of 37 & 38 Vict. c. 57, 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 above-mentioned sections, 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. Sect. 14 of 3 & 4 Will. 4, c. 27, provides that the acknowledgment must By whom be signed by the person in possession: therefore, an acknowledgment acknowledgsigned by an agent will be insufficient (Ley v. Peter, 3 H. & N. 101). An ment must be unaccepted proposal for a lease made by A., who was unable from illness made under to write, was evidence of an acknowledgment by A. (Dublin v. Judge, 11 sect. 14. Ir. L. R. 9). The acknowledgment must be given to the person entitled or his agent To whom. (See Fursden v. Clegg, 10 M. & W. 572; Goode v. Job, 28 L. J. Q. B. 1). Whether a writing amounts to an acknowledgment of title within this What is an section is a question for the judge, and not for the jury to decide (Doe v. acknowledgEdmonds, 6 M. & W. 295; Morrell v. Frith, 3 M. & W. 402; but see ment. |