In the case of a tenancy under a lease in writing, under a lease in writing. reserving a rent yearly of 201. and upwards, the receipt of the rent reserved by such lease by a person wrongfully claiming the demised property in reversion immediately expectant on the determination of the lease, and no payment in respect of such rent afterwards made to the person rightfully entitled to the property subject to the lease, the right of the landlord to the property so subject accrues, and time commences displacing his title from the period when the rent reserved by the lease is first received by the person so wrongfully claiming, and not upon the determination of the lease, and giving to such person continuing such receipt for twenty years a title against the person so rightfully entitled (i). In the last case attornment merely, however, will not operate such a bar or determination (k). of rent between lessor and lessee. As before these alterations, so since in the last case Effect of mere non-payment the mere nonpayment by the lessee to the lessor of the rent reserved by the lease does not affect his title to the reversion on the determination of the lease (7), and so long as the relation of landlord and tenant subsists as a legal relation, the landlord's right to rent is not barred by nonpayment for however long a time. The right to the rent is an incident to the reversion. does not apply, except indeed that by the 42nd section it prevents the recovery of arrears for more than six years; and the same principle must govern the case of a demand in equity. The 24th section only bars equit ss. 2, 8; Doe d. Earl Spencer v. Beckett, 4 Q. B. 601; Doe d. Jukes v. Sumner, 14 Mee. & W. 39; Doe d. Edney v. Benham, 14 Q. B. 342; Doe d. Edney v. Billet, Ib. 343; Doe d. Landsell v. Grover, 21 L. J., N. S., Q. B. 56; Ley v. Peter, 3 Ex. 101; 9 H. L. C. 375, 386. (i) See 3 & 4 Will. 4, c. 27, 68. 2,9; Nepean v. Doe d. Knight, 2 Mee. & W. 894; Doe d. Davy v. Oxenham, 7 Ib. 131; Doe d. That statute Angell v. Angell, 15 L. J., Q. B. (k) 9 H. L. C. 381. (1) See Chadwick v. Broadwood, 3 Beav. 180; Doe d. Davy v. Oxenham, 7 Mee. & W. 131; Doe d. Newman v. Godsill, 5 Jur. 170; 4 Q. B., N. S. 603, n.; Grant v. Ellis, 9 Mee. & W. 113; Re Turner's Estate, 11 Ir. Eq. Rep. 304; Archbold v. Scully, supra. Possession by one of two lessces; -by vendee; able rights so far as they would have been barred if they had been legal rights (m). The possession by one of two lessees is possession by both, and if one of them be in possession as tenant from year to year, the lease is an enlargement of the estate of such one for the term created by the lease, and the possession enures for the benefit of both, and the interest passing by the lease cannot be considered a mere interesse termini (n). In the case of a contract for the sale and purchase of lands, when the vendee is let into possession, and continues to pay interest for several years to the vendor, he is not a trespasser till he has refused to quit after demand, and until that demand he is considered as having the possession with the permission of, and therefore not adversely to, the vendor (o), and the purchaser cannot say that the vendor has no title (p). In those cases where the contract merely provides for payment of interest on the purchase-money, independent of, and not by way of compensation for, the occupation, a mere tenancy at will is created between the parties (q), not by the agreement, but by the possession. If the purchaser be already in possession as tenant from year to year, the intention of the parties, whether a new tenancy at will is created or not, and from what time, must be collected from the agreement (r). Such tenancy at will, however, is not within sect. 7 of the 3 & 4 Will. 4, c. 27 (s), and therefore the vendor (m) 9 H. L. C. 375, 386. (n) Keyse v. Powell, 2 Ell. & B. 132. (0) Doe d. Milburn v. Edgar, 2 Bing. N. C. 498; Doe d. Stanway v. Rock, 4 Man. & G. 30; Toft v. Stephenson, 7 Hare, 1; S. C. on appeal, 1 De Gex, M. & G. 28. (p) Doe d. Milburn v. Edgar, supra. (9) Right d. Lewis v. Beard, cannot eject the purchaser without a demand of possession, for an ejectment treats the tenant in possession as a wrongdoer at the time when the action is brought. If he be lawfully in possession, then it is an answer to the action, whatever may be the date of the demise laid in the declaration, for an ejectment is altogether a fictitious remedy. If, therefore, there be a tenancy it must be determined before ejectment can be sustained (t). But the contract, if it provide for the payment of the interest in such a mode as, in effect, to constitute a letting at a yearly rent, as making the interest payable half-yearly (u), constitutes a tenancy from year to year (v). lessee under In the case of an agreement for a lease, and posses--by intended sion taken under such agreement by the intended lessee, agreement for a tenancy at will is created (x). lease; or persons en The possession may be either by a person or persons —by a person entitled to it jointly with some other person or persons, titled jointly or by the permission of a person who, in a court of law, with others; as between himself and the possessor or possessors, is entitled to the possession; but such a relation exists between the possessor or possessors, and such other person or persons, and the person permitting it respectively, as in general deprives the possession of the effect it would have upon the title of the person so entitled to or permitting that possession if no such relation existed. Thus the possession of a younger brother (y) or other relation of the heir, or of one of several coparceners (z), joint tenants (a), or tenants in common (b), against such heir, or against the other or others of such joint owners, did not alone at common law vary the nature of such possession, because the (t) Doe d. Newby v. Jackson, 1 B. & C. 448. (u) 5 Mee. & W. 16. (x) Saunders v. Musgrave, Bart., 6 B. & C. 524. (x) Doe d. Landsell v. Gower, 17 Q. B. 389. (y) Litt. s. 396; Gilb. Ten. 28. (a) 1 Salk. 392; 2 Ib. 423. 2 Salk. 422. -by a mortgagor; -by cestui que trust. possession of such relation, or of such one of those joint owners, being that of the heir or of the other or others, the latter would, in contemplation of law, be deemed to be also in possession. But the 3 & 4 Will. 4, c. 27, has destroyed this common law right, and, at least as far as relates to the object of the act, has the effect of making the possession of persons in these relations separate from the time when the relations were first. created (c). At common law, however, the mere possession by a sister is not the possession of, but adverse to her brother (d). There is also the possessio fratris, enabling a sister to inherit the fee simple property of her brother, under the rule, possessio fratris de feodo simplici facit sororem esse hæredem (e). The possession within this rule must be actual, and the rule extends to the issue of the sister (f), but does not apply to dignities in fee (ƒ) The possession by a mortgagor is considered as by the permission of the mortgagee (g), and is not, at any assignable period, unless a jury from renunciation by the mortgagor, or some other circumstances, are induced to find that the possession was opposed to, or inconsistent with, the right to it of the mortgagee (h), but is the possession of the mortgagee (i). In general, the possession by a cestui que trust, when consistent with the terms of the trust, is not opposed to or inconsistent with the title of the trustee (k), and when consistent with the title under which it has been acquired, and by which it is guarded, is not to be used to (c) 11 Ad. & E. 1016; Lessee O'Sullivan v. M'Swiney, Longf. and Town. Ir. Rep. 111; Doe d. Holt v. Horrocks, 1 Car. & K. 566; 1 Jones & La T. 303. (d) Doe d. Draper v. Lawley, 13 Q. B. 954. (e) Litt. ss. 7, 8; Co. Com. 14 a, 15 a, b. (f) Co. Litt. 15 b. (g) Hall v. Doe d. Surtees, 5 B. & Ald. 687; Doe d. Jones v. Williams, 5 Ad. & E. 291. (h) Doe d. Jones v. Williams, supra. (i) Leman v. Newnham, 1 Ves. sen. 51; 2 Cox, 123; 2 Mer. 360. (k) Smith d. Dennison v. King, 16 East, 283; 3 B. & C. 404. subvert the title to which it is subject, nor to defeat the trusts which are expressly declared to be a part of this title (7). The legal interest is in the trustee: actions must be brought by him; the cestui que trust has no interest in law; if he enter, his possession is considered the possession of the trustee, the cestui que trust only possessing the property in the right of the trustee (m), and under the protection of the instrument by which the estate is conveyed to the trustee (n). The legal title to the possession, if it conflict with the equitable, must prevail, and in a court of law may be set up, even by the trustee against the cestui que trust(o); and the possession of the latter is neither a bar to, nor an extinguishment of, the title of the trustee so as to let in the claim of the widow of the cestui que trust to dower (p). In Knight v. Bowyer (q), Turner, L. J., said, "Assuming that there was no possession by the trustee there was the receipt of the rents by a receiver clothed with a trust, and the estate vested in the trustee could not be barred or extinguished whilst some of his cestuis que trust were in receipt of the whole produce of the estate, and were in such receipt under a deed forming part of the same security." As long as the relation of trustee and cestui que trust exists, the possession of the cestui que trust is not only the possession of the trustee (r), but gives to the trustee a seisin in deed and the actual possession on the death of the cestui que trust (s). At law, a cestui que trust, when in possession of the His position at (1) 9 Ir. Eq. Rep., N. S. 137; Price v. Blakemore, 6 Beav. 507. (m) 7 Bing. 599. (n) 8 C. B. 252. (p) Garrard v. Tuck, 8 C. B. 231. (g) 2 De Gex & J. 440. (r) Faussett V. Carpenter, supra; 7 Bing. 599; 4 Hare, 417; (8) 4 Hare, 417. law as to his trustee ; |