of, such person so not entering, and his heir, shall be ut "terly disabled from such entry." 66 66 But by s. 2." If any person having right or title of entry, "shall be at the time of the said right or title first de"scended, accrued, come, or fallen, within the age of "twenty-one years, feme covert, non compos mentis, imprisoned, or beyond seas, then such person and his heir "may, notwithstanding the said twenty years be expired, bring his action or make his entry, as he might have done "before this act: so as such person or his heir shall, within "ten years next after his and their full age, discoverture, "coming of sound mind, enlargement out of prison, or coming into this realm, or death (37), take benefit of "and sue forth the same, and at no time after the said ten years (38)." 66 The plaintiff must prove either actual possession or a right of entry within twenty years, or account for the want of it; for by virtue of this statute, an uninterrupted adverse" possession for twenty years (except in cases which fall within the clause of exception) operates as a descent or a discontinuance which tolls entry. Hence, the defendant may take advantage of this statute on the general issue. Where the defendant has the legal title and is in posses u Salk. 421. (37) It appears probable enough, upon looking into the case of Stowell v. Lord Zouch, Plowd. 355. b. that the word death was introduced here to obviate the difficulty, which had arisen in that case, upon the construction of the statute of fines, 4 H. 7. c. 24. for want of that word." Per Lawrence J. in Doe v. Jesson, 6 East's R. 85. 1 (38) This clause gives to the party, to whom a right of entry accrues, and who is under a disability at the time, ten years after the disability removed, notwithstanding the twenty years should have elapsed after his title first accrued; and to the heir, the statute gives ten years from the death of his ancestor, to whom the right first accrued during the period of disability, and who died under such disability; for the word death refers to the death of the person to whom the right first accrued, and whose heir the claimant is*; hence, where the ancestor died seised, leaving a son and daughter, infants, stranger entered, the son died within age; it was holden, that the daughter was entitled only to ten years from the death of her brother, to make her entry. Doe v. Jesson, 6 East, 80. sion, he may defend himself upon his title, although 20 years have run against him before he took possession, such 20 years possession not being the possession of the lessor of the plaintiff. This statute runs against the lord of a manor as well as against any other person'. Hence if a house, &c. be built on the waste, the lord should take care to have some entry made of it in his books and reserve some rent or service; otherwise he will lose his right. In like manner, if a common has been inclosed 20 years, the commoners' right of entry is gone. It is to be observed, that the right or title of entry within this statute, must be such as is accompanied by a right of possession: A., seised in fee of an estate, made a lease for years, containing a clause of re-entry, in default of payment of the rent reserved, and afterwards devised the estate to B. in fee, and died. From the death of A., until the expiration of the lease, (a period of more than twenty years) C., the heir at law of A., received the rent from the lessee; during all which time B., the devisee, did not take any steps to recover the possession; but within twenty years after · the expiration of the lease, B. brought an ejectment; whereupon it was objected that B.'s right of entry was barred by this statute: 1st, By the non-receipt of rent by B. under the lease granted by the devisor for more than twenty years, and an adverse enjoyment by C. of such rent during all that time; and, 2dly, By B. not having availed himself, for more than twenty years, of his right of entry under the proviso in the lease for non-payment of the rent. But the court overruled the objection, and held that B. was entitled to recover, observing, that during the lease, B. could not have entered and supported the ejectment; and although a forfeiture were committed, yet B. was not obliged to enter. This statute does not run in any case, except where there is an actual ouster or disseisin. Hence, it is proper to consider what acts amount to an ouster or disseisin: Taking the whole profits by one tenant in commion is not any ejectment of the other. x Doe d. Burrough v. Reade, 8 East, 353. y Greeby v. Preston, Norfolk Summ. Ass. 1798. Ld. Raymond C.J. Serjt Leeds's MS. z Creach v. Wilmot, Derby Sunum. Ass. 1752. per Lee C. J. Cited by Lawrence J. in Hawke v. Bacon, 2 a Doe d. Cook v. Danvers, 7 East, b Per Cur. in Reading v. Royston, Salk 423. c 1 lust, 199. b. Where one tenant in common had received rent for the whole of the premises2, and had not accounted for it to his companion for above twenty years, this was holden by the court not to be such an adverse possession as would bar the tenant in common, who had been kept out of the rents, from maintaining an ejectment for an undivided moiety (39). It is to be observed, that in the preceding case it was not left to the jury to presume an actual ouster; consequently no ouster was found, but merely the facts as above stated. But in a case where it appeared, that there had been for nearly 40 years sole and uninterrupted possession by one tenant in common, without any claim by his companion to a share of the rents and profits, and without any acknowledgment of his right by the other tenant in common, it was holden to be a sufficient ground for a jury to presume an actual ouster of the co-tenant, and consequently that the statute operated as a bar to a recovery in ejectment (40). So parceners and joint tenants cannot be disseised by their companions, except by an actual ousterf. If there be tenant at sufferances, and a stranger, not having any right to the land, make a lease to him by indenture, rendering rent without putting the tenant by sufferance out of possession, and the tenant pay the rent to the stranger, that is not any disseisin to him who has the right. If a stranger receive of my tenant by voluntary payment, d Fairclaim v. Shackleton, 5 Burr. 2604. Bi. R. 690. e Doe d. Fisher v. Prosser, Cowp. 217. f Hob. 120. g Per Cur. in Prenson v. Sone, 1 Roll. Abr. 659. (C) pl. 11. h 1 Roll. Abr. 659. (C) pl. 8. (39) Where one tenant in common enters generally without his companion, it shall work an entry to the companion. Smales v. Dale, Hob. 120. Where one parcener enters generally, and takes the profits, this shall be accounted in law the entry of them both, and not a divestment of the moiety of her sister. 1 Inst. 243. b. See Doe v. Keen, 7 T. R. 386. (40) ، There have been frequent disputes, as to how far the possession of one tenant in common shall be said to be the possession of the other, and what acts of the one shall amount to an actual ouster of his companion. I think the only case in which the possession of one tenant in common can be said to be the possession of the other is, where one holds possession as such, and receives the rents and profits on account of both. With respect to what acts will amount to an actual ouster, if no actual ouster is proved, yet it may be inferred from circumstances, which circumstances are matter of evidence to be left to a jury.” Per Aston J. S. C. without coercion of distress, the rent due to me, that is a disseisin to me at my election. The possession of one joint tenant is the possession of the other, so as to prevent the operation of the statute'. Where two persons are in possession, the possession is judged in him who hath right. A claim or entry, to prevent the operation of the statute must be on the land, unless there be some special reason to the contrary'. And by stat. 4 Ann. c. 16. s. 16. An action must be commenced within one year next after the making of the claim or entry and prosecuted with effect; otherwise the claim or entry will be of no avail. The stat. 21 Jac. c. 16. shall not be taken by construction, to bar a man of his action, unless it be expressly found how the possession has been. If a mortgage is made for a collateral security, although the mortgagee is not in possession for twenty years and more, yet if interest be paid on the bond, the statute shall not bar". XI. Evidence. Evidence on the Part of the Lessor of the Plaintiff.-THE evidence required to support an ejectment will vary according to the title of the lessor of the plaintiff. Devisee of a Term.-Where the lessor of the plaintiff is devisee of a term, he must produce in evidence the probate of the will, and prove the assent of the executor to the devise; for where a person devises, either specially or generally, goods or chattels, real or personal, and dies, the devisee caunot take them without the assent of the executors. Lessee for years devised the term to his executor for life, paying 50l. to J. S., remainder to the lessor of the plaintiff. i Ford v. Grey, Salk. 295. 2 Tannt. 441. k Hob. 322. I Salk. 285. But see Per Holt C. J. delivering the opinion of the court, Ld. Raym. 239. n Per Holt C. J. Ld. Raym. 750. p Young v. Holmes, Str. 70. Middle- The executor dying, his executrix entered upon the residue of the lease and possessed herself of the term. An ejectment having been brought, it was hoiden, that the executor took as executor, and not as legatee; and then the remainder over was not executed, and that it was incumbent on the remainder man to prove a special assent thereto, as to a legacy; whereupon plaintiff proved payment of the 501.; and that was holden to be a sufficient assent, and the plaintiff recovered. Administrator.-Where the lessor of the plaintiff claims title as administrator, in strictness he ought to produce the letters of administration under the seal of the ecclesiastical court. But the entry, or an examined copy of the entry in the book, wherein the orders of the court for granting letters of administration are entered; or an exemplification of. the letters of administration will also be evidence. If the lessor of the plaintiff make title as assignee of a term from an administrator', cum testamento annexo, an exemplification, though not in hac verba, yet agreeably to the form of the ecclesiastical court, will be good evidence (41). Copyhold. If the plaintiff make title in the lessor as lord of a manor, who has right by forfeiture of a copyhold, he ought to prove that his lessor is lord, and the defendant a copyholder; and that he committed a forfeiture: but the presentment of the forfeiture need not be proved, nor the entry or seizure of the lord for the forfeiture. Tenant by Elegit.-Tenant by elegit must produce in evidence an examined copy of the judgment, of the writ of elegit taken out upon it, and the inquisition and return thereupon. Landlord.-In ejectment by a landlord against his tenant, it will not be necessary for the landlord to give any evidence of his title anterior to the lease; for the tenant will not be permitted to impeach the title of the person under whom he came into possession. q Garrett v. Lister, 1 Lev. 25. Peaselie's case. 1 Lev. 101. Elden v. Keddell, 8 East. 187. r Ray v. Clerk, London Sittings, after H. T. 1775. Ld. Mansfield C. J. 13 East, 239. • Per Lord Hardwicke C. J. in Kemp t Kempton v. Cross, Ca T. H. 108. (41) For the evidence necessary to establish a title by the heir, see Peake's Evid. part II. chap. xiv. where this subject is treated with great perspicuity. For evidence on ejectment brought by devisee of land, see post tit. Statute of Frauds, $3, |