held differently in the case of Reading v. Rawsterne, (a) which was decided many years after; for he there said it was true, that one tenant in common might disseise the other ;[1] but that must be an actual disseisin, which he explains to be the hindering him from coming upon the land, &c. and not by a bare perception of the profits.

Indeed, the case of The Earl of Susser against Temple has been doubted.(b) And, by Lord Hardwicke, Ch. (c) it has

(a) Ld. Raym. 830. (b) Run. Eject. 191. (c) 2 Atk. 649.

[1] One tenant in common hindering the entry of the other is an ouster. Gordon vs. Pearson, 1 Mass. Rep. 323..

If one tenant in common sells the whole tract, and possession be held adversely, for twenty-one years, the sale and possession amount to an ouster of the co-tenant, who is barred by the Act of Limitations. Culler & Al. vs. Motzer, 13 Serg. & R. Rep. 356. (In error.) This was an action of debt on bond, brought in the Court of Common Pleas of Perry county, by Motzer the defendant in errror and plaintiff below, against Culler and others, plaintiffs in error and defendants below, and issue was on the plea of payment. The bond was given for the purchase money of a tract of land, conveyed by Motzer to Culler, with covenants of warranty. The defence was, a defect of title, and an oustanding claim of Dower.

The title originated in an improvememet made by John Brown, who in 1775 devised one half of it to Mary Brown, and the other half to James Brown. Mary Brown died intestate, leaving two children William Brown and Nancy Brown, (now Maxwell.) William Brown thus became entitled to one fourth, and Nancy to one fourth, and in 1799, William Brown, and one George · Brown, conveyed to Martin Motzer. In 1800, William Brown obtained a patent in his own name for the whole tract. In the deed from George and William to Motzer, it was recited, that on the day of 1797, Nancy Brown or Maxwell, conveyed by deed her interest in the premises to them as tenants in common. George and William came into the possession of the land before 1799, and it had since continued in their possession, and the possession of those claiming under them. The widow of George Brown was still living. On these facts, the plaintiff below contended that the right of James, and the claim of George's wife to dower, were barred by the Statute of Limitations. The Supreme Court Held, That the right of James was barred, but that the claim of George's wife to dower was not barred.

been said, that the statute of limitations will not run against one joint tenant or tenant in common, unless an actual ouster is made. And to be sure there ought to be some ouster: but if after such ouster a tenant in common, or joint tenant continue in possession of the whole for twenty years, it is a bar.

On the 17th August, 1721,(a) at a court held for the Forest of Knaresborough, (where lands pass by surrender and admittance,) Jane Shackleton and Patience Readshaw were respectively admitted tenants in fee-simple, each to one undivided moiety of certain lands in the occupation of William Lawson.

17th July, 1723, Emanuel Simpson and Patience his wife, late Readshaw, were admitted on their own sur*render, to her moiety; to hold to said Emanuel and [*29] Patience, their heirs and assigns: 1724 said Patience

died; and 20th April, 1728, said Emanuel died; both without issue. 29th May, 1728, Benjamin Empson was admitted to said moiety, in fee-simple, as brother and heir to the said Emanuel.

Hil. 2 Geo. II. (1728-9,) Benjamin Empson obtained judgment by default in ejectment, against William Lawson, in the common pleas; and said Lawson, 10th April, 1729, attorned tenant to Benjamin Empson, and paid him afterwards one year's rent of said moiety.

5th June, 1734, Benjamin Empson died; and 24th July, 1734, Benjamin Empson (an infant of nine years) was admitted to said moiety in fee simple, as nephew and heir to the other Benjamin.

9th August, 1754, this Benjamin Empson died, leaving James the lessor of the plaintiff, his son and heir; an infant of ten years, who, on the 15th of. October, 1766, was admitted tenant in fee-simple.

(a) Bl. 690,

Jane Shackleton died in 1729, leaving the defendant her son and heir; who, being an infant, was admitted to her moiety in fee-simple, 13th August, 1729.

In 1744, William Lawson, by leave of Mr. Shackleton, gave up the farm to his son Christopher, who paid Mr. Shackleton the whole rent then due for the premises, and has paid Mr. Shackleton the whole rent ever since. And no other payment appears than is above stated. A verdict #was found for the plaintiff, subject to the opinion of the court on the question

[*30]

Whether the plaintiff was barred from recovering by the statute of limitations?

It was argued, that he never was out of possession, that the statute therefore did not bar him; that parceners, joint tenants, and tenants in common, have a joint possession, a joint occupation, joint management of the whole; the possesion of one is the possession of both therefore, the possession of William Shackleton was the possession of James Empson,and he was never actually ousted. Perception of profits does not amount to an expulsion. That one tenant in common may indeed disseise another; but then it must be by actual disseisin, and not by bare perception of profits only; and the statute of limitations never runs against a man, but where he is, actually ousted or disseised; and the cases cited were, Reading against Rawsterne, 2 Salk. 423. and 2 Lord Raymond, 829. and the case of Ford against Lord Grey, 6 Mod. 44. 1 Salk. 285. where the first resolution is express, "that the possession of one joint tenant is the possession of the other, so far as to prevent the statute of limitations.

On the other side, it was contended, (a) that there was a difference between joint tenants, and tenants in common. But if

(a) 5 Burr. 2604.

there were not, yet the case of The Earl of Sussex against Temple, 1 Ld. Raymond, 310. is contrary to 2 Ld. Raymond, 829. for Holt there says, that as to the possession of one

tenant in common being the possession of the other, [*31] that does not hold place against the statute of limitations; and besides, that if one of them only take the profits, it is an ousting of the other and it was said, that the case of Storey against Lord Windsor and others, 2 Atkyns, 632. was in point, since the statute of Queen Anne: that the court could not now attend to an old observation, "that the possession of one is the possession of the other." The possession of one tenant in common is now as adverse as the possession of any other person. And it is a bar after twenty years. Lord Mansfield stopped the reply, and laid it down, that there must be an adverse possession, in order to enable the statute of limitations to run. There must be a disseisin, and a disseisin strictly proved. [1] And he referred to the case of Taylor, ex dem. Atkins, v. Horde, Burr. 60. and to Fermor's case. But here is no disseisin. The sole title of the defendant is his admittance, in 1799, to an undivided moiety of the premises. He is so far from a disseisor, that he allows the title of the others.

If there had been a question about ouster, it might have been a fact to be left to a jury. But I am clear that the defendant never meant to disseise the plaintiff, nor thought of it. The tenant was never desired to attorn for the whole; he only attorned for an undivided moiety, and once paid rent for the same. And Shackleton once received rent alone for the whole, without paying any of it over to the other; but this is no actual ouster.[2]

[1 Vide Page 20, note [2.] Page 21, Note [1.] Page 25, Note [2.] & Page 27, Note [2.]

[2] "A bare perception of profits will not oust a tenant in t common." Morris Lessee vs. Vanderen, 1 Dall. Rep. 67. (per MCKEAN, Ch. J.) & Vide Lloyd vs. Gordon & Wife, 2 Harr. & Mc

Mr. Justice Willes and Mr. Justice Blackstone concurred. (Mr. Justice Aston was absent in chancery.) Here is no adverse possession; no keeping the plaintiff out of possession. One tenant in common has received *the rent, and not accounted for it to the other; but here is no expulsion, no ouster.

[ *32]

On motion for a new trial, in the case(a) Doe, ex dem. Fisher and Wife, and Taylor and Wife versus Prosser, Lord Mansfield reported the case to be an ejectment brought by the plaintiff for an undivided moiety of certain lands in Enfield, in the county of Middlesex. The lessors of the plaintiff claimed title under Mary Taylor, who was tenant in tail in common of the lands in question, with the sister, under the will of one Perkins. The sister was married to Stevens, after which, in the year 1705, there was a deed of partition, between Mary Taylor and Stevens, for the life of Stevens; by which deed all the lands in Enfield were alloted to him, and under which he enjoyed them till the year 1734, when he died: Mary Taylor died some years before. From the year 1734 one tenant in common, namely, the wife of Stevens, had been in the sole possession of these lands, without any claim or demand by any person or persons claiming under Mary Taylor, deceased, the other tenant in common. No actual ouster was proved; but that Lord Ch. J. Mansfield left it to the jury to say, whether there was not sufficient evidence before them, to presume an actual ouster. And supposing there was an actual ouster, in that case the lessors of the plaintiff were barred by the statute of limitations. The jury found, there was sufficient evidence to presumed an actual ouster.

(a) Cowp. 217.

Hen. Rep. 260. Higbee & Al. vs. Rice, 5 Mass. Rep. 351. McClung vs. Ross. 5 Wheat. Rep. 124. Cuyler & Al. vs. Bradt & l. 2 Caines' Cas. Err. 335.