no disseisin; there must be a tortious ouster; and it is not to be presumed a country fellow should build in opposition to the lord, unless it be shown, or conveyances are produced: The lord,(a) on the death of a copyholder of inheritance, after three proclamations for the heir to come in and be admitted, seized the estate into his own hands, and afterwards granted it in fee to another: the court considered this absolute seizure as irregular, there being no custom to warrant it, and that it could not afterwards be set up as a seizure quousque. In the case stated it appeared that a fine was levied in the court of common pleas, in the thirty-first year of his late majesty's reign, by which it was argued an absolute forfeiture was incurred; and which could not be done away by any subsequent act. *Lord Kenyon, Ch. J. in giving his opinion on the [*27] case, which was decided on other grounds, observed, with respect to the supposed forfeiture, I do not see why the statute of limitations, which operates as a bar to other rights of entry after twenty years, should not bar the lord in this case. It seems to me, that he should have availed himself of his right of entry within twenty years. However, on this ground, I give no positive opinion. By Ashhurst, J. with respect to the forfeiture by the fine which was levied in the late reign, it should have been presented at his court as a forfeiture; for the lord was not bound to take advantage of the forfeiture; and here there does appear sufficient on the rolls of the court to show that the lord had waived it. Buller, J. Besides, there is great weight in my lord's last objection, that at the distance of more than twenty years he could not enter for a forfeiture. (a) 3 T. R. 172. Where one holds lands, &c. as lessee, his possession, in contemplation of law, is the possession of the lessor. (a) [1] (a) 2 Brown, 298. 1 Wils. 176. 3 Wils. 521. [1] Jackson ex dem. Van Schaick & Al. vs. Davis, 5 Cow. Rep. 129, 130. Lessee of Galloway vs. Ogle, 2 Binney's Rep. 472. Graham & Al. vs. Moore & Al. 4 Serg. & R. Rep. 467. Brandter ex dem: Fitch vs. Marshall, 1 Caines' Rep 401. Jackson ex dem. Webber & Al. vs. Harsen & Al. 7 Cow. Rep. 323. Jackson ex dem. Low & Al. vs. Reynolds, 1 Caines' Rep. 444. & Vide Jackson ex dem. Bleecker vs. Whitford, 2 Caines' Rep. 215. Jackson ex dem- Klein vs. Graham, 3 Caines' Rep. 188. Barr vs. Gratz's heirs, 4 Wheat. Rep. 222, 223. A tenant, who endeavours to deprive his landlord of the benefit of possession, under a fraudulent pretence of giving it up, is still to be considered a tenant, and cannot defend himself as a stranger, nor prevent by any pretence under such circumstances, his landlord from regaining possession. A person who comes into possession under a tenant, is in no better condition than the tenant himself; and cannot defend his possesion against the landlord. Graham & Al. vs. Moore & Al. 4. Serg. & R. Rep: 467. 470. Where A.'s tenant from year to year, takes a lease from B., the act is void; and cannot work an adverse possession against A. Jackson ex dem. Williams & Al. vs. Miller, 6 Cow. Rep. 751. The rule of law, that the tenant cannot contest his landlord's title, is not applicable, where the title of such landlord is a Connecticut title, existing in violation of the laws of Pennsylvania. Therefore, such tenant, afterwards purchasing a Pennsylvania title, and continuing to hold under it, may set it up against bis original landlord, who claimed under a Connecticut title, though subsequently to such purchase, the landlord also took out another Pennsylvania title. Satterlee & Al. vs. Matthewson, 13 Serg. & R. Rep. 133. In the case of Miller vs. McBrier, in Error, (14 Serg & R. Rep. 384, 385.) GIBSON, J. delivering the Opinion of the Court, said, "That a tenant cannot deny his landlord's title is certain; and by "an application of this rule to the circumstances of the case, the "Court excluded the evidence with which the defendant offered "to impeach an original title, with which also the landlord set "out. Where a landlord shows no title, but asks to be restored "to the possession with which be parted, good faith requires it "should be redelivered to him, it being no answer to say he is not "the owner of the land. But where, as in this case, he claims on "the separate grounds of original title, and as having parted with "the possession pursuant to a lease, the defendant will be per So the possession of one tenant in common, joint tenant, or parcener, is the possession of his cotenant or coparcener, therefore he in possession must do some act amounting to a denial of the right of his fellow, or omit some duty from which a jury would infer such denial, before his possession can be adverse, and within the statute. [2] But Holt, Ch. J. in The "mitted to meet him separately on each." & Vide Camp vs. Camp, 5 Gonn. Rep. 300, 301. Payment of rent by a lessee to a lessor after the lessor's title has expired, and after the lessee has notice of an adverse claim, does not amount to an acknowledgment of title in the lessor, or to a virtual attornment, unless at the time of payment the lessee knows the precise nature of the adverse claim, or the manner in which the lessor's title has expired. Fenner vs. Duplock & Another, 2 Bing. Rep. 10. A possession of land taken under ån executory contract for the purchase thereof, is in no sense adverse to the person with whom the contract is made. Jackson ex dem. Swartwout & Ux. vs. Johnson, 5 Cow. Rep. 74. Jackson ex dem. Young & Al. vs. Camp, 1 Cow. Rep. 610. Botts & Al. vs. Shields' heirs, 3 Litt. Rep. 34. Morris vs. Thomas, 5 Binn. Rep. 77. The Proprietors of Township Number Six, vs. McFarland, 12 Mass. Rep. Higginbotham & Al. vs. Fishback, 1 Marsh. Rep. 506. Richardson & Al. Jackson ex dem. Wilkinson &c. vs. Nichols, Monr. Rep. 36. [2] Vide Page 25, note [2] "The Statute does not run in favor of one, against another ten"ant in common. If, however, there has been an actual ouster and adverse holding, the Statute of Limitations will run from "the time of such Ouster and adverse possession." Coleman vs. Hutchenson, 3 Bibb's Rep. 212 (per LOGAN J. delivering the Opinion of the Court.) & vide Brackett vs. Norcross, 1 Greenl. Rep. 91.Russell's Lessee vs. Baker. 1 Har. & Johns. Rep. 71. Doolittle & Ux. vs. Blakesley, 4 Day's Rep. 273. "The possession of one tenant in common recognizing the ti"tle of his co-tenants, is, in legal consideration, the possession of "all" Barrett & Ux. vs. French, 1 Conn. Rep.364. (per SwIFT, Ch. J., delivering the Opinion of the Court.) & vide Bryans vs. Atwater, 5 Day's Rep. 1883 Where one takes by descent as a co-heir and tenant in common, he cannot shew, (in ejectment by his co-heir, or one claiming under him,) that the ancestor had no title. Jackson ex dem. Hill vs. Streeter, 5 Cow. Rep. 529. Earl of Sussex v. Temple, (a) is reported to have [28] said, that as to the possession of one *tenant in common being the possession of the other, that does not (a) Ld. Raym. 312. "The law is, that nothing but an actual ouster, by one tenant "in common, shall give him the exclusive possession. Fairclaim ex dem. Empson vs. Shackleton (5 Burr. 2604."), Carothers & Al. vs. The Lessee of Dunning & Al. 3 Serg. & R. Rep. 385. (Per GIBSON, J.) One tenant in common cannot maintain ejectment against his co-tenant without actual ouster. Barnitz's Lessee vs. Casey, 7 Cranch's Rep. 457. & vide Higbee & Al.. vs. Rice, 5 Mass. Rep. 351. Doe ex dem. Gigner vs. Roe, 2 Taunt. Rep. 397. "It is true that the mere pernancy of all the profits by one tenant in common, is not an ouster of another tenant in common." Higbee & Al. vs. Rice, 5 Mass. Rep. 351. (per PARSONS, Ch. J. delivering the opinion of the Court.) "A bare perception of profits will not oust a tenant in common; "and for the Statute of Limitations to operate as a bar, the possession must be adverse." Morris' Lessee vs. Van Deren, 1 Dall. Rep. 67. (per MCKEAN, Ch. J.) & vide Lloyd vs. Gordon & Wife, 2 Har. & McMen. Rep. 260. McClung vs. Ross, 5 Wheat. Rep 124. After nul disseizin pleaded in a writ of entry, by a tenant in common, proof of actual ouster is unnecessary. Stevens & Ux. vs. Winship & Ux. 1 Picker. Rep. 318. The Statute of Limitations will not run in favour of a purchaser for a valuable consideration, who had knowledge of the rights of parties, nor where he held as tenant in common, and during the minority of the other party. Saxon & Ur. vs. Barksdale & Al 4 Eq. Rep. (Dessaus,) 522. A person who has entered by the permission of one tenant in common, cannot, a partition having been made, set up an adverse possession in bar of an action of ejectment, by the tenant in common, to whose share the premises had fallen. Jackson ex dem. Fisher vs. Creal & Al. 13 Johns. Rep. 116. ་་ "It must be conceded that an action for Partition, speaking of "it in general terms, can be prescribed against only by a lapse of "thirty years, and not even by this or any other much greater length of time when the partners or co-heirs possess in common "an inheritance or property." Gravier & Al. vs. Livingston & Al. 6 Mart. Rep. 410. (per MATTHEWS, J. delivering the Opinion of the Court. hold place against the statute of limitations. And besides, that if one of them only takes the profits, it is an ousting of the other. It is to be observed, however, that the same judge Purchasers under the same title, without partition, cannot prescribe against each other, by the lapse of ten years. Broussard vs. Duhamel, 3 Mart. Rep. (N. S.) 11. "When property is held by husband and wife, to which one "has a right, the legal possession follows the title." Clark's heirs vs. Barkham's heirs, 4 Mart. Rep. (N. S.) 415, (per PORTER, J. delivering the Opinion of the Court.) A testator (after directing his debts and some legacies to be paid,) bequeath the residue of his estate to his children, equally to be divided among them; with a proviso, that, if either of his daughters should die without lawful heir, her part should be equally divided among the survivors of his children. One of the daughters took possession of certain slaves in her share, and having married, died, without any child. For more than five years after her death, her husband continued to hold and use the slaves as his own, without any demand being made by the surviving children of the testator. His possession was considered adverse to their title; and a purchaser from him was protected by the act of Limitations. Garland vs. Enos, 4 Munf. Rep. 504. "The possession of tenants in common is one and undivided, "neither can one alone support an action of trespass. The pos"session of one, therefore, is the possession of all, and if one en"ters generally, without saying for whom, it will be implied, that "he entered according to law; that is to say, for himself and the "others. I find a case, in which it was expressly decided, that the "entry of one tenant in common, shall enure to the benefit of another, as regards strangers. (Small vs. Dale, Hob. 120. "Moor, 868. 14 Vin. 512. P. a. pl 1.)" Carothers & Al. vs. The Lessee of Dunning & Al. 3 Serg. & R's. Rep 381, (per TILGHMAN, Ch. J.) Same case, pages 385, 386, the like opinion by GIBSON, J. 66 But in the case of Doolittle & Ux. vs. Blakesley, (4 Day's Rep. 273.) BRAINERD, J. who delivered the Opinion of the Court, said, "In case of tenants in common, as before observed, the posses"sion of one is the possession of the other as it respects themselves. But as it respects strangers it is totally different. One tenant "in common, as it respects his fellow tenant, is always safe in the "possession of his fellow tenant, unless ousted. But when dis"seised, either by a fellow tenant, or a stranger, he has his rem"edy in his own right upon his own independent title; and if he "will not exercise this right within the 15 years, he must suffer the “consequences of an adverse possession, and lose his estate." |