So the possession of a lessee is that of the lessor, as long as the lease subsists, and that although no rent be paid; but when the rent is not a merely nominal one, the omission to pay it, or to make any other acknowledgment of a tenancy for a greater number of years might be evidence of an adverse possession (1 Lom. Dig. 801). And even after the end of the term the lessee's possession is still not adverse, unless he does some act amounting to a disseisin, as by conveying to another. (Wiseley v. Findlay, 3 Rand. 367.)

4". Where the Possessor has acknowledged a Title in the Claimant.

When the possessor has acknowledged a title in the claimant, the possession is not deemed adverse, the acknowledgment negativing such an idea. (1 Lom. Dig. 801.)

6. Effect of the Acquisition of a New Right.

Where a claimant acquires a new right, he is allowed a new period to pursue his remedy, though he has neglected the first. Thus, a remainderman expectant on an estate for life or years, to whom a right to enter or bring an ejectment is given, by a forfeiture incurred by the tenant for life or years, is not bound to do so; so that if he comes with his action within fifteen years after the remainder attached, it will be in time, although more than fifteen years have elapsed since his title by means of the forfeiture accrued. (1 Lom. Dig. 862; Kemp v. Westbrook, 1 Ves. Sen'r, 278-9.) And so a reversioner may enter at any time within fifteen years after the termination of the particular estate, notwithstanding there may have been a disseisin of the particular tenant, and an adverse possession for more than fifteen years; for the proper title of the reversion does not accrue until the particular estate is at an end. (1 Lom. Dig. 802.)

7. The Entry which is required in order to preserve a Right of Possession.

The entry must, of course, appear to have been upon the land claimed, and it must also appear that it was not a mere casual entry, but made animo clamandi, and was followed by a possession, continuous and actual, by means of residence, improvement, cultivation, or other open, notorious, and habitual acts of ownership. (1 Lom. Dig. 802; Ewing v. Burnet, 11 Pet. 53; Barclay & als. v. Howell's Lessee, 6 Pet. 513; Dawson v. Watkins, 2 Rob. 269-'70;

Overton's Heirs v. Davisson, 1 Grat. 217, 225; Taylor's Devisees v. Burnsides, 1 Grat. 208, 210.)

It is admitted that an entry into one of several parcels of land in the same county may avail as an entry into all, provided the entry is made in the name of all, and the several parcels are, as to the freehold, in the hands of the same person. But if the freehold is in different parties, or the entry is not made in the name of all the parcels, it is good for no more than the parcel actually entered upon. Hence, if there be three several disseisors of different parcels, as each is a several tenant of the freehold of his parcel, there must be a separate entry upon every one, and not upon one in the name of all. So also, there must be a separate entry, if a disseisor of an entire parcel let the land for life, say in three parcels, to three several tenants. But if in the latter case, he should let it for years to three several tenants, an entry into any one of the parcels, in the name of all, will serve for the whole. (3 Th. Co. Lit. 15 to 17.) And it should be observed that the entry of the equitable owner (e. g. the cestui que trust), is as effective to repel the bar of the statute of limitations as that of the possessor of the legal title. (1 Lom. Dig. 803; Gree v. Rolle, 1 Ld. Raym. 716.)

8. Application of the Statute of Limitations to Suits in Equity.

The statute of limitations in Virginia interposes an express bar to suits in equity in only two classes of cases, namely: 1st, In case of gifts, conveyances, assignments, transfers, or charges which are not on consideration deemed valuable in law, where the suit of any creditor to vacate it is limited to five years after such gifts, &c., are made; and 2ndly, In case of grants of land by the Commonwealth, in order to repeal the same in whole or in part, in which case the suit must be brought within ten years next after date of the grant. (V. C. 1873, c. 146, § 16, 17; Snoddy v. Haskins & als, 12 Grat. 368.) The limitations to suits prescribed in all other instances relate to actions or proceedings in the courts of law; and by the earlier statutes fixing the periods within which proceedings must be had, as well with us as in England, no cases at all in chancery are included. Limitations to suits, however, being recognized as a wholesome policy, and having, indeed, prevailed in the courts of chancery, although with no definite periods, from the origin of their

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extraordinary jurisdiction, in consequence of their reasonable wish to discountenance laches and neglect, when the legislature prescribed certain fixed periods within which actions at law must be set on foot, equity had no difficulty in adopting by analogy similar periods in corresponding cases, especially as to do so was in accord with one of its favorite maxims that equity follows the law. Thus, in cases of equitable titles to lands, equity requires relief to be sought within the same period in which an ejectment would lie at law; and in cases of equitable personal claims, it also requires relief to be sought within the period prescribed for legal demands of a like nature. (1 Lom. Dig. 809-'10; 1 Stor. Eq. § 55 a; Id. § 529.) Indeed, when the demand is strictly of a legal nature, but it is more convenient for some particular reason, under the circumstances, to invoke the aid of chancery, the court of equity governs itself absolutely by the same limitations as are prescribed by the statute for such cases, not so much upon the ground of analogy, as positively in obedience to the statute. (1) Stor. Eq. § 529.)

But there are some cases where equity, not being bound by the terms of the statute of limitations, has not deemed it politic and wise to be ruled by its provisions. The most noted instances of this are cases of trust, and of fraud;

W. C.

1. Cases of Trust, not within the Statute of Limitations. The proposition that a trust is not within the statute of limitations, applies, of course, only as between cestui que trust and trustee, and not as between those parties on the one side, and a stranger on the other. In this latter case the statute is as much applicable as if no trust were concerned. (1 Lom. Dig. 810; Harmood v. Oglander, 6 Ves. 415.) As between cestui que trust and trustee (if the trust be constituted by the act of the parties), the possession of the trustee can never be adverse to the cestui que trust, and therefore no length of possession can bar the latter's title. Where the trust is forced by the doctrines of equity upon the conscience of the trustee (that is in case of constructive trusts), in consequence of his fraudulent conduct, &c., this proposition requires to be somewhat qualified. In that case, when the party beneficially concerned becomes cognizant of the fraud, &c., the possession of the quasi trustee is adverse from the

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time the fraud, &c., is discovered, and from that time the statue runs. (1 Lom. Dig. 810-'11; Beckford v. Wade, 17 Ves. 97; Kane v. Bloodgood, 7 Johns, C. R. 123; Sheppards v. Turpin, &c., 3 Grat. 395.)

As to legacies, see 1 Lom. Dig. 813-'14. 21. Cases of Fraud, not within the Statute of Limitations. When fraud is charged, the defendant cannot plead the statute of limitations to the discovery of his title (at least he cannot do it except from the time that the claimant became cognizant of the fraud), but he must answer to the fraud. (1 Lom. Dig. 813; Cresap v. McLean, 5 Leigh, 389.)

We have seen that the Virginia statute of limitations restricts the proceeding in equity or otherwise, to set aside a conveyance alleged to be fraudulent as to creditors, &c., because not for valuable consideration, to five years from its date (V. C. 1873, c. 114, § 2); but this provision does not apply where there is an actual fraud. Cases of actual fraud are governed by the principles applicable to constructive trusts, already stated, that is, the statute begins to run from the time the fraudulent intent came to the knowledge of the parties concerned, or from the time when the creditor's execution or judgment was delayed, hindered, or defrauded by the operation of the fraudulent conveyance. (Snoddy v. Haskins, 12 Grat. 363; Wilson v. Buchanan, 7 Grat. 334.)

But although this right may remain unasserted for a period long enough to raise a bar to its assertion, even in equity; yet the forbearance may be satisfactorily accounted for, not only by the savings in the statute, of infancy, insanity, and coverture, but sometimes by other circumstances also, as by the fact that the adverse claimant was amused and diverted from the purpose to sue, by proposals of compromise or adjustment, &c. (1 Lom. Dig. 814; Eustace v. Gaskins, 1 Wash. 185.)

CHAPTER XVIII.

IV. OF TITLE BY FORFEITURE.

4. Title by Forfeiture.

Title by forfeiture arises in those cases where forfeiture of lands and tenements is annexed by law as a punishment to some illegal act or negligence in the owner of

the property; whereby he loses all his interest therein, and the property goes either to the party injured, as a recompense for the wrong done him, or to the Crown or Commonwealth. The illegal acts or omissions which induce the forfeiture, for the most part relate to the lands and tenements which are forfeited; but at common law a very notable exception occurs in the case of certain crimes, which occasion the forfeiture of all the offender's lands and tenements, the same being upon his conviction vested in the Crown. Although it will involve some repetition, it will be best to state first, the causes of forfeiture in England, and secondly, the causes of forfeiture in Virginia. (2 Bl. Com. 267.)

W. C.

18. The causes of Forfeiture in England.

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The causes of forfeiture of lands and tenements in England are these: (1), Crimes and misdemeanors; (2), Alienation of lands and tenements contrary to law, and other kindred wrongs; (3), Non-presentation to a churchbenefice, when the forfeiture is denominated a lapse; (4), Simony; (5), Non-performance of conditions; (6), Waste; (7), Breach of copyhold customs; (8), Bankruptcy. (2 Bl. Com. 267; 1 Steph. Com. 421; Id. 277; 4 Do. 447.)

W. C.

1. Forfeiture of lands, &c., for Crimes and Misdemeanors. In England lands and tenements are at common law forfeited to the Crown for treason and for felony; the forfeiture taking effect upon conviction, but then having relation back to the commission of the act, so as to include whatever lands or tenements the party had then or at any time afterwards. For treason, the forfeiture is forever; and for felony (at least for murder), during the felon's life, and a year and a day afterwards (4 Bl. Com. 381, 385); but for any other felony, for the felon's life-time only. (4 Steph. Com. 447, 450-'51). In other cases where forfeiture of lands for offences is exacted, it is by various statutes, and for different terms, as in case of misprision of treason, (4 Steph. Com. 200); of præmunire (Id. 217); and of drawing a weapon on a judge or striking any one in the principal courts of justice. (Id. 251.)

In Virginia, it is enacted (V. C. 1873, c. 195, § 5), that no attainder of felony shall work any forfeiture of estate. And the constitution of the United States (Art. III, § iii, 2) provides that no attainder of treason shall work a forfeiture except during the life of the person attainted. If by this provision, it was intended.