1801. PEACE ABLE against READ eftate, as of Eafter term 1796, which commenced on the 13th of April. It was understood by the plaintiff before the trial that the defendants meant to claim under a deed, or will, or both, of Mrs. Hornblower, executed fubfequent to the deed of appointment before mentioned; in confequence of which the plaintiff's counsel and Others. produced evidence by anticipation, which went decidedly to prove that at the time and long before when the fuppofed inftrument or inftruments bore date, Mrs. Hornblower was infane, and confequently incapable of revoking the former appointment made by her when in her fenfes, and making a new difpofition of her property. Whereupon the defendants' counfel, faying they were not then prepared to meet that cafe, flood upon their title derived from the fine operating upon what, they contended, was an adverse poffeffion by Pearfall and his wife of the whole eftate at the time of the fine levied. As to which it appeared in evidence, that during the life of Mrs. Hornblower the whole rent of the estate was paid to Pearfall in right of his wife, and that he fettled with the other fifters for their fhares; excepting once when Pidduck the tenant in poffeffion paid the rent to Mr. Hornblower in his lifetime 570 in the prefence of Pearfall. And that fince the death of Mrs. Hornblower and till Pearfall's death, which happened afterwards, the latter alone received the whole rent; and after his death the defendants (the Reads) received it; no rent having ever been paid to the leffor of the plaintiff and no entry was proved to have been made by the latter. That in converfation between his attorney and the defendant Pidduck, the tenant in poffeffion, about a fortnight before the trial, the latter faid, that he confidered the Reads as his landlords, to whom, fince Pearfall's death, he had paid his rent, and that he did not hold under the leffor of the plaintiff. And on cross-examination the attorney said, that he had understood from his client, the leffor, that the defendants had faid that they claimed as having an exclufive right; but when this was faid did not appear. For the leffor of the plaintiff it was infifted at the trial, that no entry was neceffary to avoid the fine, he having been tenant in common with Pearfall during his life, and after his death with the defendants the Reads. That he might elect whether the receipt of rent by Fearfall and the defendants fhould be an outer or not; and if he were not oufted, the fine would only operate on the title and intereft of the defendants. E contrà it was infifted that, as the lessor of the plaintiff was never in poffeffion, this cafe was diftinguishable from the common cafe, where feveral tenants in common being in poffeffion, one of them levies a fine of the whole. And that here the poffeflion being adverfe from the death of Mrs. Hornblower, and no entry having been made, the fine was a bar to the plaintiff's recovery. The jury under the judge's direction found a verdict for the plaintiff; and leave was given to the defendant to move to enter a nonfuit, if the Court should be of opinion [571] that an entry was neceffary to avoid the fine. A rule nifi having been obtained for that purpose in the last term, Onflow Serjt., Dauncey, Wigley, Jervis, and Abbott now shewed cause, and contended that no entry was neceffary in this case. It is fettled, that a fine levied of the whole eftate by one of several tenants 1801. PEACE ABLE against READ and Others. tenants in common is no outer of his companions, and in the cafe of joint-tenants operates only as a feverance of the jointtenancy. Ford v. Lord Grey (a). So in Smales v. Dale (b), the entry of one tenant in common fhall be taken generally as an entry for his companions as well as himself. The fame law holds in the cafe of coparceners (c); and in a note from Lord Nottingham's MS. to the last edition of Co. Litt., in which it is faid, that when one coparcener enters fpecially, claiming the whole land and taking the whole profits, the gains her fifter's moiety by abatement; the note (referring to the cafe of Smales v. Dale) fays, "the contrary is held, that one coparcener cannot be diffeifed without actual ouster, and claim fhall not alter the poffeffion." So a perception of profits by one tenant in common alone, without account, is no oufter of another; bnt there must be an actual diffeifin strictly proved. Fairclaim v. Shackleton (d). It is true that in Doe v. Proffer (e) uninterrupted poffeffion by one tenant in common without account, and without any adverfe claim for 36 years, was holden a fufficient bar to his companion; but there the jury had found an actual oufter by prefumption from the facts proved. But here no actual oufter can be fhewn at the time of the fine levied; and the jury by their verdict have negatived any prefumption of the kind. [572] Down to the time of Mrs. Hornblower's death, on the 9th of March 1795, she was in poffeffion, and there was nothing to fhew an adverfe poffeflion by Pearfall from that time to the 13th of April when the fine was levied. In order to make a diffeifin, it must not be fuch a poffeffion which is at the election of the other party to confider fo or not (f). A fine levied by a tenant for years is no bar without a feoffment. But fome act must be done in all cafes of a privity of poffeffion to change the nature of that poffeffion before a fine can operate against the owner. Hunt v. Brown (g), and Earl Pomfret v. Lord Windfor (b). Gibbs, and Williams Serjt., in fupport of the rule, infifted that there was evidence that the poffeflion of Pearfall was adverse to the leffor of the plaintiff at the time of the fine levied. He was in poffeffion of the whole rent without account, and this has continued down to the prefent time. Then if this be not evidence of oufter, it will be difficult to fay what is fo, or where to draw the line. The leffor of the plaintiff himself confidered the poffeffion as adverfe. He treated the defendant's claim as being derived under an inftrument executed by Mrs. Hornblower before her death. And therefore, whether that were valid or not, at leaft it fhews that the poffeffion was adverse at the time of levying the fine. [Lawrence J. obferved, that the defendants gave no fuch inftrument in evidence.] The inftrument was affumed to exift, and evidence given to invalidate it. The attorney of the leffor of the plaintiff fwore, that his client knew from the defendants that the whole was claimed; and admitting this conver- [73] fation to have been after the fine levied, ftill it ferves to explain PRACE- 1801. in what right the defendants then held the poffeffion. All the cafes where poffeffion by one tenant in common has been holden to extend to the reft have been where all had once been in possesfion; but here the leffor was a ftranger to the eftate, claiming as againft READ a purchaser under the deed of appointment, and there never has and Others. been any acknowledgment of his title by thofe in the actual poffeffion of the eftate or of the rents. In the case of Fairclaim v. Shackleton (a) both parties had been in poffeffion of the rents and profits; and what was very material, on the death of one of the tenants in common, his fon was admitted tenant on the court rolls. But the cafe of Doe v. Proffer (b) fhews ftrongly, that though one come in by a rightful poffeffion, yet if he afterwards hold adversely, he fhall bar his companion by length of poffeffion. Now the fine operates as much here after five years as the longer poffeffion in that case operated in bar of the ejectment under the ftatute of limitations. Lord Mansfield there confidered, that a denial of title, together with a refusal to account, would be fufficient evidence of an oufter by one tenant in common of another. And they cited 14 Vin. Abr. 512. pl. 5. in margine. Co. Litt. 243. b. 373. b. to fhew, that an entry by one claiming the whole is an oufter of his companion. And Story v. Lord Windfor (c) to shew, that a fine and non-claim for five years will bar a co-tenant in common. Lord KENYON C. J. No perfon is lefs difpofed than I am to accommodate the law to the particular convenience of the cafe: but I am always glad when I find the strict law and the justice of the cafe going hand in hand together. The whole of this de[ 574 fence is founded in a moft unrighteous and fraudulent proceeding; and in order to give effect to it, the legal operation of the fine is infifted upon; and it is asked, if this were not an adverse poffeffion by Pearfall at the time of the fine levied, where the line is to be drawn? I have no hesitation in saying where the line of adverfe poffeffion begins and where it ends. Primâ facie the poffeffion of one tenant in common is that of another: every case and dictum in the books is to that effect. But you may fhew that one of them has been in poffeffion and received the rents and profits to his own fole ufe, without account to the other, and that the other has acquiefced in this for fuch a length of time as may induce a jury, under all the circumftances, to prefume an actual oufter of his companion. And there the line of prefumtion ends. In the cafe of Doe v. Proffer Lord Mansfield rightly faid, that it was not neceffary to fhew actual force in order to prove an ouster, as by turning a man out by the fhoulders; but, as was alfo observed by Mr. Justice Afton, it may be inferred from circumstances, which circumstances are matter of evidence to be left to a jury. There there was an undisturbed and exclufive poffeffion by one tenant in common for 40 years, which the Court properly held to be fufficient evidence of an oufter to leave to the jury. But no judge could think himself warranted in directing a jury to make fuch presumption in this case in order to work the groffcft injustice, and (4) Cowp. 217. (c) a Atk. 631, 2. («) 5 Burr. 2604. 1801, PEACE ABLE against READ in aid of a fraud. What is the cafe here? During Mrs. Hornblower's life Pearfall held as tenant in common with her; he received all the rent, but he accounted for her proportion. She died in the month of March 1796; the defendants or Pearfall having, as is fuppofed, procured from her at a time when the jury have found her to be infane, an inftrument, conveying this and Others. property to them. Then in Eafter term following, for the purpose *[ 575 ] of fecuring the poffeffion of this ill-gotten property, the fine is levied. But Perfall had then done no act which manifested that he held the poffeffion of the whole adverfely. The levying of the fine of the whole was no oufter of his companion. About a month intervened between the death of Mrs. Hornblower and the levying of the fine. What notice was there to the leffor of the plaintiff at that time that Pearfall held adversely, fo that he fhall be taken to have acquiefced in his title. All the cafes mentioned go upon the ground of acquiefcence in an adverse holding in order to prefume an oufter. In Fairclaim v. Shackleton there had been a perception of the rent by one tenant in common alone for 26 years; but the title of the other being admitted, no outer was prefumed. Without an oufter be found by the jury the poffeffion of one tenant in common must be taken to be the poffeffion of all. I do admit that upon the principle of the case of Lade v. Holford (a) the jury may from circumftances prefume an outer, and where the fact is fo found the legal confequences would enfue. But no judge would advise a jury to make the presumption in this cafe. Then unless the holding was adverse, there was no occafion for an entry to avoid the fine. Suppose a tenant for years levied a fine, no entry by the landlord would be neceffary in order to enable him to maintain an ejectment at the end of the term. In Taylor d. Atkins v. Horde (b), Lord Mansfield faid, that in order to advance justice he would enable the real owner in such a cafe to confider himself kept out by wrong or not, at his election. So a tenant in common may rely on the poffeffion of his co-tenant as his own, [576] unless there be an actual oufter in fact, or the jury find it from circumftances. But nothing of that fort is here found; and therefore we may consider the levying of the fine as rightfully and legally done, and intended to operate only on that share of the premifes to which the defendants were lawfully entitled. GROSE J. The queftion is, Whether there were an adverse poffeffion in Pearfall at the time of levying the fine? Now to hold that would be to give effect to a fcandalous fraud; therefore I will not prefume it. Nothing appears to fhew that he had then fet up an adverse claim to the whole: nor will I prefume that he had, fince he must have known that any act done by Mrs. Hornblower in a state of infanity was a nullity, under which no title could be derived. So that there is no ground for faying that his poffeffion was adverse at that time, and the jury by the verdict have negatived it. LAWRENCE J. Whether the defendants claimed under a deed or will of Mrs. Hornblower did not appear at the trial; but the (4) Bull. Ni. Pri. 110, (b)` 1 Burr, 111–117. plaintiff PLACE- againft 1801. plaintiff not knowing which it was, or at what time the fuppofed inftrument was executed, faid he should give evidence to fhew that for a long period, which at all events covered the time within which either could probably have been executed, she was infane. But the fine was put in, which the defendant infifted was at and Others. any rate a bar to the action, as no entry had been made. That point I referved for the opinion of the Court. Then the plaintiff produced his evidence of the infanity, which was proved moft fatisfactorily to which the defendants faid, that not being aware of such a case intended to be made, they were not then prepared [ 577] to answer it, but would rely for the prefent upon the operation of the fine but neither the contents of any will or deed were read or offered in evidence. I confidered this as diftinguishable from the common cafe, because the poffeffion of one tenant in common was the poffeffion of another, as the receipt of rent by one is a fufficient receipt by the other to prevent his being barred by the statute of limitations. This was holden in the cafe of Coppinger v. Keating on a writ of error from Ireland, M. 22 G. 3. in a cafe where one of two brothers profeffing the popish religion entered on the death of his elder brother upon lands of which they were tenants in common, in confequence of the gavelling act, directing that the lands of perfons of that perfuafion fhall defcend to all the males according to the cuftom of gavelkind, and held them for feveral years until his death; and the Court determined that the son of the elder brother was not barred by the statute of limitations, as the uncle was tenant in common with him under that act, no actual oufter being found. There was no act proved in this cafe to have been done by Pearfall at the time of the fine levied to ouft his co-tenant, or to manifest that he held adversely to him. LE BLANC J. The queftion is, Whether any act had been done previous to the levying of the fine, to fhew that at the time of the five levied the party in poffeflion claimed adverfely to the leffor of the plaintiff, or any circumftances had happened from whence the jury might prefume an oufter of his co-tenant? The determination of this cafe in favour of the leffor of the plaintiff will not break in upon any of the cafes, where it has been holden that length of time or receipt of rents by one tenant in common, in [578] exclufion of another, may let in the prefumption by the jury of an actual oufter of his companion. The leffor of the plaintiff was not entitled to any rent till after the death of Mary Hornblower, he claiming under an appointment to take place after her death. Up to the time of her death fhe was entitled, and there is no pretence to say that she was oufted by Pearfall. She died on the 9th (as it now appears) of March, and the fine was levied on the 13th of April. Then in order to fhew an adverse poffeffion within that period, it must either appear that Pearfall entered on her death claiming the whole, or that he did some act to fhew that he claimed adverfely. But there is no evidence of any act done for this pur pose, and the only evidence of any adverse claim is what was said by Comberbatch, the plaintiff's attorney, on his cross-examination, that in a converfation with his client long fubfequent to the levying of the fine, the latter told him that he understood that the de fendants |