as against such purchaser, and any person claiming through him. (y)

395. Acquisition of title by persons who obtained possession originally as tenants from year to year.—When any person is in possession or receipt of the profits of any land or rent, as tenant from year to year, or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims, is to be deemed (s. 8) to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent, payable in respect of such tenancy, shall have been received (which shall last happen). A tenant holding a house of parish officers upon the condition of sweeping the church, or ringing the church-bell, is a tenant from year to year within this section of the statute. (s) The words "lease in writing," are construed to mean not merely a demise in writing, but such an instrument as passes an interest. (a) Verbal declarations and admissions made by a tenant in possession of his having paid rent, and of the person to whom it was paid, are admissible in evidence to establish the fact of the receipt of rent within this section. (b)

396. Effect of continued wrongful receipt of rent.—It is also enacted (s. 9) that when any person shall be in possession or receipt of the profits of any land, or in receipt of any rent, by virtue of a lease in writing, by which a rent of 20s. or upwards shall be reserved, and the rent shall have been received by some person wrongfully (ie., without any title, not wrongfully in the sense of an improper intention to deprive others of their property) (c) claiming to be entitled to such land or rent in reversion, immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease shall afterwards have been made to the person rightfully entitled thereto, the right of the person entitled to such land or rent, subject to such lease, or of the person through whom he claims to make an entry or distress, or bring an action, after the

(y) See Walters v. Webb, L. R., 9 Eq. Ca. 83 5 Ch. App. 531.

(z) Doe v. Benham, 7 Q. B. 982. Doe v. Billett, Ib. 983. Doe v. Hinde, 2 M. & Rob. 441.

(a) Doe v. Gower, 17 Q. B. 589; 21 Law J., Q. B. 57.

(b) Doe v. Beckett, 4 Q. B. 605; 12 Law J., Q. B. 236.

(c) Williams v. Pott, L. R., 12 Eq. Ca.

determination of such lease, shall be deemed to have first accrued at the time at which the rent was first so received by the person wrongfully claiming; and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled.

397. Entry upon land, and continued claim.-It is further enacted (s. 10) that no person shall be deemed to have been in possession of any land within the meaning of the act, merely by reason of his having made an entry thereon; and (s. 11) that no continual or other claim upon or near any land shall preserve any right of making an entry, or distress, or of bringing an action. 398. Possession of coparceners, joint-tenants and tenants-incommon. When any one or more of several persons entitled to any land or rent as coparceners, joint-tenants, or tenants-incommon, shall have been in possession or receipt of the entirety, or more than his or their undivided share, for his or their own benefit, or for the benefit of any person other than the persons entitled to the other shares of the land or rent, such possession or receipt is not to be deemed to have been the possession or receipt of or by such last-mentioned persons or any of them.

399. Possession of younger brothers or relations.-When a younger brother or other relation of a person entitled as heir to the possession or receipt of the profits of land, or to the receipt of rent, enters into the possession or receipt thereof, such possession or receipt is not to be deemed to be the possession or receipt of the heir.

400. Acknowledgments of title.-By s. 14 it is further enacted, that when any acknowledgment of the title of the person enti tled to any land or rent shall have been given to him or his agent in writing, signed by the person in possession or in receipt of the profits of such land, or in receipt of such rent, then such possession or receipt by the person by whom such acknowledgment shall have been given shall be deemed to be the possession or receipt of the person to whom or to whose agent such acknowledgment shall have been given at the time of giving the same; and the right of such last mentioned person or any person claiming through him, shall be deemed to have first accrued at, and not before, the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given, (d) (d) Ley v. Peter, 3 H. & N. 101; 27 I aw J, Exch. 239, Goode v. Job, 28

401. Ecclesiastical and eleemosynary corporations are allowed (s. 29) two incumbencies, or sixty years, for the recovery of land.

402. Disabilities.-Ten years are allowed (s. 16) in all cases for persons under disability from the time the disability ceases, but no action is to be brought after forty years. The disabili ties enumerated as having the effect of extending the period of limitation, are infancy, coverture, idiocy, lunacy, unsoundness of mind, and absence beyond seas, at the time the right to make an entry or distress, or bring an action to recover any land or rent, shall have first accrued. The extension of the period of limitation is granted also from the death of the person under disability. If a person before the first disability, e.g., infancy, be removed, becomes subject to another, e.g., by marriage, the ten years run from the date of the removal of the last disability. (e)

By section 26 it is enacted that, in case of concealed fraud, the right of a person to bring suit in equity for the recovery of land or rent, shall be deemed to have first accrued at the time at which such fraud shall, or with reasonable diligence might, have been first discovered. (ƒ)

403. Preservation of the rights of the landowner by re-entry and resumption of possession of lands before the expiration of the period of limitation.-We have seen that, by s. 7 of the 3 & 4 Wm. 4, c. 27, when any person is in possession of land as tenant-at-will, the right of the landowner to enter upon the land, or recover it by action, accrues either at the determination of such tenancy, or at the expiration of one year after the com mencement thereof, at which time the tenancy, if not previously determined by the act of the landowner, shall be deemed to have determined. We have seen, also, that no person is to be deemed to have been in possession of land within the meaning of the act, merely by reason of his having made an entry thereon, and that no continual claim upon, or near to land, shall preserve any right of making an entry or bringing an action. "The making an entry," observes CRESSWELL, J., amounts to nothing unless something is done to divest the

Ib. Q. B. 1. Fursdon v. Clogg, 10 M. & W. 576.

(e) Borrows v. Ellison, L. R., 6 Exch.

128.

(f) See Chetham v. Hoare, L. R., 9 Eq. Ca. 571.

possession out of the tenant and revest it. in fact in the lord." Where, therefore, the defendant has inclosed a piece of land from the waste and built a hut thereon, and the lord of the manor entered upon the premises, and said he took possession in his own right, and ordered a stone to be removed from the hut, and a portion of the fence to be thrown down, but did not turn the defendant and his family out of the cottage, it was held that this was no interruption of the possession of the defendant, and no vesting of the possession in himself, and that the lord had not done enough for the assertion of his rights, and for preventing the defendant from gaining a title under the statute. (g)

Where, on the other hand, the overseers of a parish put the plaintiff into possession of a parish cottage as a parish pauper, and, he having continued in possession for a long time without paying any rent, the overseers in 1839 entered upon the cottage, to prevent him from gaining a title under the statute, and turned out both him and his family and removed his furniture; but, on the same day, the plaintiff resumed possession of the cottage, and continued in possession till July, 1852, when the overseers again entered, and, he refusing to deliver up the cottage, they destroyed it, and the plaintiff then brought an action of trespass, and the defendants pleaded that the cottage was not the property of the plaintiff, it was held that the right of the defendants was not barred, as they had in 1839 actually dispossessed the plaintiff, and resumed possession of the cottage, and clothed themselves with their original rights.

"Whether the plaintiff," obseves Lord CAMPBELL, “during the interval between 1829 and 1852 was tenant-at-will or tenant-at-sufferance, or a mere trespasser, seems to be wholly immaterial, so that the overseers had not in the interval done anything to prejudice the right of entry which vested in them in 1839. It is admitted that the plaintiff would have had no title had the jury found that his subsequent occupation was under a new tenancy-at-will; but how would this at all have affected the new right of entry which had accrued in April, 1839? An attempt was made to do away with the effect of

(g) Doe v. Coombes, 9 C. B. 718; 19

Law J., C. P. 906. Brassington v. Llewellyn, 27 Law, Exch. 297.

what then happened, by resorting to section 10 of the statute, which enacts, that no person shall be deemed to have been in possession of any land within the meaning of this act, merely by reason of having made an entry thereon.' But this evidently applies to a mere entry, as for the purpose of avoiding a fine, which may be made by stopping on any corner of the land in the night-time and pronouncing a few words, withḥout any attempt, or intention, or wish to take possession. In the present case possession was actually taken by the overseers animo possidendi; and whether possession was retained by them an hour or a week must, for this purpose, be immaterial.” (1) So, where a tenant-at-will refused to go out, and was served with a writ of ejectment, and an arrangement was then come to by which he gave up part of the land, and was allowed to remain in a cottage during his life, it was held that a new tenancy-at-will commenced on the making of this arrangement, and that the time of limitation began to run one year after the making thereof. (i)

404. Rights of mortgagees.-The 7 Wm. 4 & 1 Vict. c. 28, provides that it shall be lawful for any person claiming under any mortgage of land to make an entry, or bring an action or suit to recover such land, at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elasped since the time at which the right to make such entry, or bring such action or suit, shall have first accrued. (k) Where in ejectment for a house by mortgagee against mortgagor it was proved that in 1847 a declaration in ejectment had been served on the mortgagor, who was in possession, and that judgment was signed, and that shortly afterwards the mortgagor ceased to have possession of the land (which had been mortgaged with the house), but retained possession of the house, it was held that there was no evidence of possession by the mortgagee, or of the creation of a new tenancy under him in 1847, so as to prevent the operation of the statute. (7)

405. Title to the church, chancel and churchyard.-Although

(2) Randall v. Stevens, 2 Ell. & Bl. 650; 23 Law J.. Q. B. 71.

(i) Locke v. Matthews, 13 C. B., N. S. 753; 32 Law J., C. P. 98.

(4) Doe v. Massey, 17 Q. B. 381; 20 Law J., Q. B. 434.

(7) Thorp v. Facey, 35 Law J., C. P. 349.