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 acknow ledges the title of the his posses sion is not adverse. Where the possessor acknowledges the title of the claimant, When the there can be no adverse possession; as where J. S. demised possessor lands to the rector of D. for forty years at a certain rent; in the lease, the rector, after covenanting for payment of the rent, further granted to J. S. the tithe of oats of the parish of D.; the lease also contained a proviso for re-entry, in case the rent should be in arrear, or J. S., his heirs, &c., should be disturbed by the rector or his assigns in the receipt of the tithe, and concluded with a covenant on the part of J. S., that the rector should quietly enjoy the lands under the covenants, grants, and agreements contained in the lease; after the expiration of the lease, the rector continued to hold the land, but withheld the rent for more than twenty years; the heirs of J. S. at the same time continuing to take the tithe of oats, and some confusion existing as to the respective rights of the rector and the heirs of J. S., the latter being portionists of the tithes of the parish; held, that the possession of the land by the lessee, was not adverse so as to let in the operation of the statute of limitations ". When the mortgagee may bring ejectment. 8. Personal representatives.. 845 HAVING thus treated of the nature of the title which will sustain an action of ejectment, it is proposed to consider next, the persons who by reason of their estate and interest in the lands, are entitled to bring this action; always bearing in mind, that a right of entry or possession must accompany their legal title. A tenant for years, for life, in tail, or in fee, may maintain ejectment a. 1.-A mortgagee.] A mortgagee may maintain this action against the mortgagor, if in possession after the mortgage has been forfeited, without giving notice to quit b; or against any person claiming under a lease granted by the mortgagor, subsequent to the mortgage, and without the privity of the mortgagee; or against a yearly tenant of the mortgagord; but he cannot eject a tenant in possession under a lease granted previous to the mortgagee. Where the attorney of the mortgagee applied to the tenant in possession for rent to pay the interest of the mortgage, and threatened to distrain, it was held that the mortgagee thereby recognized the possession as legal, and that he could not maintain ejectment on a demise made previous to such application; yet the mere fact of the mortgagee having received interest down to a day later than the day of the demise, has been held not to amount to a recognition that the mortgagor was in lawful possession till the time when such interest was paid, and consequently was no defence; it was distinguishable from the preceding case, inasmuch as receiving the interest did not recognize the defendant as a person in lawful possession; whereas in the former case the plaintiff by his agent recognized the defendant being in lawful possession b. The assignee of the mortgagee may maintain ejectment. So a second mortgagee, who takes an assignment of a term to attend the inheritance, and has all the title-deeds, may recover in ejectment against the first mortgagee, not having had notice of such prior mortgage d. of the manor may ment. 2.-The lord of the manor.] The lord of the manor may The lord maintain ejectment when the tenant commits a forfeiture e; and his right to maintain ejectment against his copyholder, for a bring ejectforfeiture by committing waste, will not be taken away by an intermediate estate in remainder between the life estate of the copyholder and the lord's reversion; for if it were, the tenant for life, and remainder-man, by combining together, might strip the estate of all the timber f. But to entitle the lord to maintain ejectment for forfeiture by committing waste, there must be damage done to the estate; therefore, where in ejectment by the lord against the copyholder for pulling down a barn without any intention of rebuilding it, the jury found that the premises were not thereby damaged; it was held that the When a Where an inclosure wa plaintiff was not entitled to recover a 3.-A copyholder.] A copyholder may maintain ejectment copyholder may bring to recover possession if wrongfully ejected by the lord, or he ejectment. may bring this action against his lessee . If he claims by descent, as heir, he may maintain ejectment without admittance as his title is complete against all the world except the lord, immediately upon the death of the ancestor d. But if the lord seize the land upon the death of the ancestor, the heir, to support an ejectment, must shew that he has tendered himself to be admitted, or that the lord has done some act dispensing with such tendere. Where the lord of a manor, by copy of court roll, granted to A. the reversion of certain premises then in his tenure, to have and to hold to B. for his life, immediately after the death of A.; held, that B. might, on the death of A. maintain an ejectment, although he had never been admitted, he having acquired a perfect legal title by the grant, without admittance f. Surrenderee. The surrenderee of a copyholder cannot bring ejectment until after admittance, for the legal estate does not vest in him before that event 8. But when once admitted, the title relates A. 453. ancients of the society, made with their assent, to the intent that they may grant the said chambers to a purchaser, passes the estate to such purchaser, before admission; for admission in this case is not necessary as in the case of copyholds to complete the grantee's estate, but it is only for the purpose of Roe d. Cosh v. Lovelass, 2 B. & signifying the assent of the society that the grantee should become a member of the Inn. Doe d. Warry v. Miller, 1 T. R. 393. Roe d. Jeffereys v. Hicks, 2 Wils. 13. A surrender of chambers in New Inn, to the treasurer and back from the time of the admittance to the surrender, as against all persons but the lord; therefore a surrenderee may maintain ejectment against the surrenderor on a demise laid between the times of surrender and admittance, provided the admittance be made before the day of the trial a. The devisee of a copyhold or customary estate, which had been surrendered to the use of the will, having died before admittance, it was held that her devisee, though afterwards admitted, could not recover in ejectment, for his admittance had no relation to the last legal surrender, but the legal title remained in the heir of the surrenderor ». Devisee of a copyhold. entitled to free bench 4.-A widow for her "free bench."] A widow may main- Widows tain ejectment for her "free bench," without admittance; for it is an excrescence which by the custom and the law grows out of or dower. the estate. But not for her dower before assignment . e 5.-A guardian.] Guardian in socage or testamentary Guardians. guardian appointed under 12 Car. II. c. 24. s. 8, may main tain ejectment. But a guardian for nurture cannot, for he has the care of the infant only, and has nothing to do with the land 8. An infant may maintain this action, but he must name a good Infant. plaintiff, who will be answerable for the costs h. 6. An assignee.] The assignee of a bankrupt may maintain ejectment. So may the assignee of an insolvent debtor; for all the estate of the debtor is vested in the assignee by the as The assignee of a bankrupt or insol. a Holdfast d. Woollhams v. Claphan, 1 T. R. 600. Doe d. Bennington r. Hall, 16 East, 208. Doe d. Vernon v. Vernon, 7 East, 8. 3 Smith, 6. Doe d. Burrough v. Reade, 8 East, 353. C Adams, 66. Godwin v. Longhurst, Cro. Eliz. 535. Doe d. Nutt v. Nutt, 2 C. & P. 430. 130. f Id. Bedell v. Constable, Vaugh. 177. Doe d. Parry v. Hodges, 2 Wils. 129. & Ratcliff's Case, 3 Co. 37. h Zouch . Parsons, 3 Burr. 1794. Noke v. Windham, Stra. 694. Madden d. Baker v. White, 2 T. R. 159. i See ante, 282. and title " Bank Wade r. Cole, 1 Ld. Raym. ruptcy." |