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It was observed by Lord Mansfield, (a) “that some ambiguity seemed to have arisen from the term actual ouster, as if it meant some act accompanied by real force, and as if turning out by the shoulders were necessary; but that is not so: A man may come in by rightful possession, and yet hold over, adversely without a title. If he does, such holding over, under circumstances, would be equivalent to an actual ouster. For instance, length of possession under a particular estate, as a term of one thousand years, or under a lease for lives, as long as the lives are in being, gives no title; but if tenant par autre vie hold over for twenty years after the death of cestuy que vie, such holding over will, in ejectment, be a complete bar to the remainder-man, or reversioner, because it was adverse to his title.

The plaintiff(b) must show a right of possession as well as of property and therefore the defendant need not [*23] *plead the statute of limitations as in other cases. In Taylor, ex dem. Atkins, v. Horde, the defendant pleaded the general issue; and the jury found a special verdict: the court determined for the plaintiff on the right, but against him on the remedy; for they held that he was barred by the statute of limitations.(c) On which judgment he brought a writ of error in the house of lords; who determined the latter point first and separately; and, holding the plaintiff to be barred of his remedy by ejectment, affirmed the judgment, without entering into the other point upon the right.

But the verdict must show how the possession has been: In the case of Jones v. Morley, (d) there was an uncertainty in that respect, upon the special verdict, so that there might have been a question whether the lessor of the plaintiff were not barred by the statute of limitations. And by the court, if Anne were out of possession in 1667, when her husband Edward Morley died, then the statute of limitations took place from that time, and so the plaintiff might be within the statute; but that is not found

(a) Cowp. 217. (b) 4 Burr. 119. (c) Run. Eject. 59. (d) Ld.Raym. 287..

by the jury expressly, and the statute of limitations shall not be taken by construction to bar a man of his action, unless it be expressly found how the possession hath been.

And an uninterrupted possession for twenty years gives a complete possessory right. If H.(a) has possession of lands for twenty years uninterrupted, and then B. gains possession, upon which H. brings ejectment; though H. is plaintiff, yet his possession for twenty years will be a good title for him, as well as if H. had been *then in possession, because possession for twenty years now by virtue of the statute 21 Jac. I. c. 16. s. 1. is like a descent at common law, which tolls the entry.

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Possession is either in fact, or in contemplation of law, and in either case, while it remains in the owner, the statute does not run; [1] therefore, if a stranger enter upon the true owner, and they divide the profits. for more than twenty years, the true owner may maintain ejectment notwithstanding, for the other moiety, because he was never out of possession.

A. being(b) seised in fee of lands, had issue two daughters B. and C. B. marries, and has issue D., and dies; A. devises the land to D. and his heirs, and dies; D. dies; and the heir of D. of the part of his father, and the heir of D. of the part of his mother, entered into the lands, and took the profits for more than twenty years before this action brought; which action was brought by the plaintiff as devisee of Bernard, who was

heir of D, of the part of the father of D.

A question was, whether the taking of the profits by the heir of the part of the mother of one moiety, should not bar the heir of the part of the father, after quiet enjoyment for twenty years, by the statute of limitations, from bringing an ejectment. And

(a) Ld. Raym. 741.

[1] Vide page 18, note [1.]

(b) Ld. Raym, 829.

the whole court held that it should not. For (by them) the statute of limitations does not bar a man, but where there is an actual disseising. Now here the bare taking of the profits is not an actual disseising. Besides that where two men are in possession of land, &c. the law adjudges it to be the [*25] *possession of him who hath the right, until he be actually disseised.[1] The lessor of the plaintiff and

the defendant were not tenants, for the defendant was a mere stranger; and though he took a moiety of the profits, that would

[1] Vide page 18, note [1] & note (A.) in the appendix.

Where two persons are in possession of land, each claiming an exclusive right, the Law adjudges the rightful possession to be in the one who has the right to the land. Mather vs. The Ministers of Trinity Church, & Al. 3 Serg. & R. Rep. 509. & to the same purport, vide Jackson ex dem. Sparkman vs. Porter, 1 Paine's Rep. 458. Burns vs. Swift & Al. 2 Serg. & R. Rep. 436. Cluggage & Al. vs. Lessee of Duncan, 1 Serg. &. Rep. 11 Davidson's Lessee vs. Beatty. 3 Har. & McHen. Rep 621 Anderson, ads. Darby, 1 Nott & McC's Rep. 369. Brandon ads. Grimke, Ibid: 357. Ridgely's Lessee vs. Ogle & Al., 4 Har. & Me Hen. Rep. 129. Barr. vs. Gratz's Heirs, 4 Wheat. Rep. 223. Green vs. Liter & Al. 8 Cranch's Rep. 229. "Although there may be a concurrent possession, there cannot be a concurrent Seizin of lands and one only being seized the "possession must be adjudged to be in him: because he has the "right." Langdon vs. Potter & Al. 3 Mass. Rep. 219. (Per PARSONS, Ch. J. delivering the Opinion of the Court.)

"According to Lord HOLT, (1 Salk, 246.) a bare entry on anoth"er without an expulsion, makes such a seisin only, that the law "will adjudge him in possession that has the right." Smith ex dem. Teller & Al. vs. Burtis & Al. 6 Johns. Rep. 218. (per KENT, Ch. J. delivering the Opinion of the Court,) & vide Codman & Al vs. Winslow, 10 Mass. Rep. 151. Commonwealth vs. Dudley, Ibid. 408. Doe ex dem. Orbison vs. Morrison, 1 Hawk's Rep. 469.

"There would appear to be no clearer principle of reason and "of justice, than this, that if the rightful owner is in the actual oc"cupancy of a part of his tract, by himself or tenant, he is in the "constructive and legal possession, and seisin of the whole, unless "he is disseised by actual occupation and dispossession. If this "were not the law, the possessor by wrong would be more favour"ed than the rightful possessor. Here are two, each in actual pos"session and occupation of part of a surveyed tract, the owner and "an intruder. Who then is in possession of the part not-occupied "by inclosure by either? The man who has no right but by disseisin of a part, or he, who is in the actual occupancy of a part,

not make him tenant in common; for a man cannot disseise another of an undivided moiety, as he may of such a number of acres. But farther, if they had been tenants in common, it is true, that one tenant in common may disseise the other; but that must be an actual disseisin, as the hindering him from coming upon the land, &c. and not by a bare perception of the profits.[2] As to the objection, that the bringing of the ejectment for a moiety admits him to be out of the possession of it, Holt denied it to be so. For if A. seised of land, makes a lease of

"and the rightful owner of the whole? In this kind of mixed con"structive possession the legal seisin is according to the title. "Title draws possession to the owner. It remains until he is "dispossessed, and then no further than actual dispossession by a "trespasser, who cannot acquire a constructive possession, which "always remains with the title." Hall & Al. vs. Powell, 4 Serg. & R. Rep. 465, (per DUNCAN, J. delivering the Opinion of the Court.)

In the case of Brimmer vs. The Proprietors of Long Wharf, (5 Picker. Rep., 131. 134. PUTNAM, J. delivering the Opinion of the Court,) said; "We are all agreed respecting the general "principles of law applicable to this action.-The instruction given "by the Judge who tried the cause,—that if, in point of fact, the "parties had had a mixed possession, and exercised acts of owner"ship indiscriminately, then there was no such exclusive possession "proved by either party as would of itself give a title, that and "consequently the issue must be determined according to the legal title, is correct."

[2]"That one tenant in common may oust his co-tenant and "hold in severalty, is not to be questioned. But a silent posses"sion, accompanied with no act which can amount to an ouster, or "give notice to his co-tenant that his possession is adverse, ought "not we think to be construed into an adverse possession." Mc Clung vs. Ross, 5 Wheat. Rep. 124, (per MARSHALL, Ch. J. delivering the Opinion of the Court,) & vide Cuyler & Al. vs. Bradt & Al. 2 Caines' Cas. Er. 335.

The fact, that one tenant in common is in possession of the estate, claiming to hold it by a deed covering the whole of it, is sufficient evidence of ouster to support ejectment by a co-tenant. Clark vs. Vaughan, 3 Conn. Rep. 191. & vide Leonard & Al. vs. Leonard, 10 Muss. Rep. 283.

"The questions, whether the entry of a tenant in common is "such as to accrue to the benefit of the others, and whether one has "actually ousted another, are questions of fact, involving some

one undivided moiety, and I. S. ousts the lessee, he must bring his ejectment for a moiety; so if they were both put out of possession, they must have several remedies, as several assises, &c. Judgment was for the plaintiff.

. But the general possession of the lord is not such a possession, either in fact or law, as will avoid the statute of limitations. In (a) ejectment for mines, the plaintiff proved himself lord of the manor, and in possession thereof; but the same witness proving that the defendant had had possession of the mines above twenty years, the court, upon a trial at bar, held this no evidence to avoid the statute of limitations, there being no entry within twenty years upon, the mines, which are a distinct possession, and may be different inheritances; and therefore directed the jury to find for the defendants.

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*So if an ejectment(b) be brought by a lord against a cottager, twenty years' possession is a good title; for if the possession of the manor should be a possession of the cottage, the lord would have a better title to that than to any part of his estate; yet a distinction has been taken and allowed by all the judges, on a case reserved by Lord Chief Baron Pengelly, that if a cottage is built in defiance of a lord, and quiet possession has been had of it for twenty years, it is within the statute: But if it were built at first by the lord's permission, or any acknowledgment has been since made, (though it were one hundred years since,) the statute will not run against the lord; for the possession of a tenant at will for ever so many years is

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"times the intentions and motives of the party in possession; which "it is the province of a jury to determine." Cummings vs. Wyman, 10 Mass. Rep. 468.

If one of two tenants in Common of a reversion levy a fine of the whole, such fine does not require an actual entry by the other tenant in common to avoid it. Roe ex dem. Truscott vs. Elliot, 1 Barn. Ald. Rep. 85.

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