Posses trust. must have been with the consent of the mortgagee, and con So where an estate was contracted to be sold, and the vendee paid part of the purchase-money, and entered into possession without a conveyance, paying interest on the remainder of the purchase-money from time to time; held, that his possession was not adverse, and that, after twenty years, an ejectment might be brought; for the payment of interest was evidence to show that he remained in possession by the owner's permission.b The cestui que trust is considered as tenant at will to the sion of the trustee; therefore the possession of the former is not adverse cestui que to the title of the latter."(1) Where the rents, issues, and profits of a trust estate were received by the cestui que trust for more than twenty years after the creation of the trust, without any interference of the trustees, such possession, &c, being consistent with, and secured to the cestui que trust by the terms of the trust-deed, the receipt was held not to be adverse to the title of the trustees, so as to bar their ejectment against the grantees of the cestui que trust brought after the twenty years. Indeed it is said that the statute will never operate between trustee and cestui que trust, except in very particular cases; although it seems that if a cestui que trust sell or devise the estate and the vendee or devisee obtain possession of the titledeeds and enter, and do no act recognising the trustee's title, the statute will operate from the time of such entry. Encroach waste lands. It was formerly considered doubtful whether an encroachment upon ment upon the waste adjoining to the demised premises by a lessee, and uninterrupted possession thereof by him for twenty years, should give him a possessory right thereto, or whether he should be deemed to have enclosed the waste, in right of the demised premises for the benefit of the lessor after the expira*836 tion of the term. But it appears from modern decisions, that such an encroachment would 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 Hall v. Doe d. Surtees, 1 D. & R. 340. 5 B. & A. 687. (7 Eng. C. L. 232.) Doe d. Milburn v. Edgar, 1 Hodges, 437. 2 Bing. N. C. 496. (29 Eng. C. L.. 402.) Gree v. Rolle, Lord Raym. 716. 4 Smith d. Dennison v. King, 16 East, 283. Keane d. Lord Byron v. Deardon, 8 East, 248. f Sugden's Vendors & Purchasers, 241. Adams, 51. Doe d. Colclough v. Mulliner, 1 Esp. 460. Creach v. Wilmot, 2 Taunt. 160, (in notis.) Doe d. Challnor v. Davies, 1 Esp. 461. Bryan d. Child v. Winwood, 1 Taunt. 208. (1) (Nor is the possession of the trustee adverse to the cestuy que trust. In general, the statute of limitations has no operation in cases of fraud or trust, as it takes effect only from the discovery of the fraud and the cesser of the trust. Wisner v. Ogden, 4 Wash. C. C. Rep. 631. Walker v. Walker, 16 Serg. & R. 319. Lyon v. Marclay, 1 Watts, 275. Rush v. Burr, 1 Watts, 120. Comegys v. Carley, 3 Watts, 280. Green v. Johnson, 3 Gill & Johns. 389. Payne v. Hathaway, 3 Verm. 212.) session of adverse. benefit, and not to hold it as he held the farm. Prima facie, every inclosure made by a tenant adjoining the demised premises is presumed to be made by him for the benefit of the landlord; but this presumption may be rebutted by evidence. If a lessee inclose land which is near the demised premises, as being part of the premises comprised in his lease, this is not an adverse possession against his landlord; and a twenty years' possession by him will not enable him to retain possession of the inclosed land against his landlord. Such possession, however, will be adverse to the rights of the commoners, and to the lord himself, except as landlord, at the expiration of the lease. Though twenty years' possession will give a good title A permisagainst the lord, if it be taken and held in defiance of him, yet sive posif it be originally taken by his permission, or if at any subse- waste quent period, an acknowledgement had been made (though it lands canwere one hundred years since) that the premises had been oc- not be cupied by his permission, the statute will not run against him, deemed for the possession of a tenant at will, for ever so many years is no disseisin. Therefore, where a cottager occupied a piece of land inclosed from the waste on the side of a turnpike road for more than thirty years, without paying rent, and at the end of that time paid sixpence rent on four several occasions to the owners of the adjoining land; held, that this was conclusive evidence of a permissive occupation only, so as to maintain ejectment. So, where a cottage standing in the corner of a meadow, (belonging to the lord of the manor,) but separated from it and from a high road by a hedge, had been occupied for about twenty years without any payment of rent; the lord *837 then demanded possession, which was reluctantly given, and the occupier was told that if he were allowed to resume possession it would only be during pleasure; he did resume and kept possession for fifteen years more and never paid any rent; held, that the possession was not necessarily adverse, and that the jury were warranted in presuming that it had commenced by the permission of the lord. sion Where an inclosure of waste lands had been made on a Adverse manor belonging to the crown, which was held for twenty- possesthree years without payment of rent or other acknowledge- against ment; the manor was sold in fee by certain commissioners, by the crown. virtue of 57 Geo. III, c. 97, to the lessor of the plaintiff, who brought an ejectment to recover the inclosure; held, that he was not entitled to recover, for after twenty years' adverse possession the defendant was protected even against the crown Doe d. Lewis v. Rees, 6 C. & P. 610. (25 Eng. C. L. 561.) Parke. Doe d. Dunraven v. Williams, 7 C. & P. 332. (32 Eng. C. L.) Coleridge. • Creach v. Wilmot, 2 Taunt. 160, (in notis.) B. N. P. 104. Doe d. Jackson v. Wilkinson, 5 D. & R. 273. 3 B. & C. 413. (10 Eng. C. L. f Doe d. Thompson v. Clark, 8 B. & C. 717. (15 Eng. C. L. 331.) When ad session will be negatived. Actual a co-tenant itself, until a judgment in intrusion; and the lessor of the plaintiff could not be in a better, or in a more favorable condition, than the crown.a Adverse possession will also be negatived whenever the verse pos- party claiming has never in contemplation of law been out of possession. Formerly the possession of one joint tenant, parcener, or tenant in common, was primâ facie the possession of his companion; therefore the possession of one could not be considered as adverse to the title of the other; unless it was attended with circumstances indicative of an adverse intent, or from which an actual ouster might be inferred; thus, thirty-six ouster by years sole and uninterrupted possession by one tenant in common, without any account to, or demand made, or claim set up, by his companion, was held a sufficient ground for a jury to presume an actual ouster of the co-tenant. So where upon demand by the co-tenant of his moiety, the other refused to pay, and denied his title, saying he claimed the whole and *838 would not pay, and continued in possession, such possession was deemed adverse, and ouster enough. And in like manner, where there were two joint tenants of a lease for years, and one bade the other go out of the house, and he went out accordingly, this was held to be an actual ouster.c Upon the same principle, although the entry of one was, generally speaking, the entry of both, yet if he enter claiming the whole to himself, it would be an entry adverse to his companion. But where there was no circumstance to induce a supposition of an actual ouster, but a bare perception of the profits by one tenant in common for twenty-six years, the possession was held not to be adverse. And where a tenant in Levying a common levied a fine of the whole premises, and afterwards took all the rents and profits for four or five years, but it did not appear that he held adversely at the time of levying the fine, it was held that such fine and receipt were not sufficient evidence of an ouster of his companion." But where there were several coparceners, and one who was in actual possesFeoffment sion executed a feoffment to a stranger of the whole premises; it was held to oust the other coparceners. Where an estate descended to parceners, one of whom was under a disability, fine. ⚫ Doe d. Wall (or Watt) v. Morris, 2 Scott, 276. (29 Eng. C. L. 304.) 1 Hodges, 215. Ford v. Grey, Salk 285. Doe d. Barnet v. Keen, 7 T. R. 386. Taylor v. Fisher, Lofft. 766. But see 3 & 4 W. IV, c. 27, s. 12, post. Doe d. Fisher v. Prosser, Cowp. 217. Id. Doe d. Hellings, v. Bird, 11 East, 49. Vin. Abr. 14, 512. Id. Adams, 55. But in the absence of evidence to the contrary, the entry of one coparcener would be presumed to have been a general entry, not for himself alone, but for all who had a right. Doe d. Reed v. Taylor, 5 B. & Ad. 575. (27 Eng. C. L. 126.) Fairclaim d. Fowler v. Shackleton, 5 Burr. 2604. Peaceable d. Hornblower v. Read, 1 East, 568. i Doe d. Reed v. Taylor, 5 B. & Ad. 575. (27 Eng. C. L. 126.) which continued more than twenty years, and the other did not enter within twenty years, the disability of the one did not preserve the title of the other after the twenty years elapsed." cener, pos not to be his com *839 When the possessor But now by 3 & 4 W. IV, c. 27. s. 12, "when any one or The more of several persons entitled to any land or rent as copar- session of ceners, joint tenants, or tenants in common, shall have been in one coparpossession or receipt of the entirety, or more than his or their joint teundivided share or shares of such land, or of the profits thereof, nant, or or of such rent, for his or their own benefit, or for the benefit tenant in of any person or persons, other than the person or persons common, "entitled to the other share or shares of the same land or rent, deemed such possession or receipt shall not be deemed to have been the posthe possession or receipt of or by such last mentioned person session of or persons, or any of them."b Where the possessor acknowledges the title of the claimant, panion. there can be no adverse possession; as where J. S. demised 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 acknowfurther granted to J. S. the tithe of oats of the parish of D.; ledges the the lease also contained a proviso for re-entry, in case the rent title of the should be in arrear, or J. S., his heirs, &c., should be disturbed his posby the rector or his assigns in the receipt of the tithe, and con- session is cluded with a covenant on the part of J. S., that the rector should not adquietly enjoy the lands under the covenants, grants, and agree- verse. ments 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. Roe d. Langdon v. Rowlston, 2 Taunt. 441. 3 & 4 W. IV, c. 27, s. 12. Roe d. Pellatt v. Ferrars, 2 B. & P. 542. claimant, *SECTION VI. WHO MAY BRING EJECTMENT. When the ejectment. 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." 1.-A mortgagee.] A mortgagee may maintain this action mortgagee against the mortgagor, if in possession after the mortgage has may bring been forfeited, without giving notice to quit; 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 mortgagor; but he cannot eject a tenant in possession under a lease granted previous to the mortgage."(1) 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 recognised the possession as legal, and that he could not maintain ejectment on a demise made *841 *previous to such application; yet the mere fact of the mortgagee having received interes: 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 Adams, 59. Good right d. Hare v. Cator, Doug. 477. Doe d Fisher v. Giles, 5 Bing. 421. (15 Eng. C. L. 485.) 2 M. & P. 749. Keech d. Warne v. Hall, Doug. 21. d Thunder d. Weaver v. Belcher, 3 East, 449. • Doe d. Da Costa v. Wharton, 8 T. R. 2. Moss v. Gallimore, 1 Doug. 279. 'Doe d. Whittaker v. Hales, 7 Bing. 322. (20 Eng. C. L. 147.) In Doe v. Cadwallader, infra, Littledale J., doubted the propriety of this decision. (1) (Rogers v. Eagle Fire Co., 9 Wend. 611. Jackson v. Marsh, 5 Wend. 44. Phyfe v. Riley, 15 Wend. 248. Middletown Bank v. Bates, 11 Conn. 519. Lessee of Ely v. M'Guire, 1 Ohio, 372. Reed v. Shepley, 6 Verm. 602. Den v. Stockton, 7 Halst. 322. Knaub v. Esseck, 2 Watts, 282.) |