years after the determination of the preceding estate tail, though such preceding estate tail should have continued for centuries; because by such determination the title and action first descended and fell. 15. By the stat. 21 Ja. I. c. 16. § 1. it is enacted, "That no person or persons shall, at any time thereafter, make any entry into any lands, tenements, or hereditaments, but within 20 years next after his or their right or title, which shall first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry, after to be made." Under this clause all persons must enter within 20 years after their title accrues; and all persons entitled to estates tail in remainder, or to reversions in fee simple expectant on the determination of an estatė tail, must enter within 20 years after the deter. mination of such estate tail; because their title first accrued by such determination. As to Entry upon Lands. 319 n. 16. It is laid down by Mr. Serjeant Williams, that 1 Saund. R. an actual entry is not necessary to avoid the statute of limitations; for if an ejectment be brought within 20 years, no previous actual entry seemed necessary. But where an estate tail is discontinued, the estates Tit. 2. c. 2. in remainder, and the reversion expectant thereon, are divested; and the issue in tail, as also the persons entitled to the estates in remainder, and to the reversion, are barred of their entry, but not of their real action. $ 6. 17. A right of entry may also be taken away by a Lit. § 385. descent, unless the heir labours under any of the disabilities which will be mentioned hereafter. But by the stat. 32 Hen. VIII. c. 33. it is enacted, that if any person disseises or turns another out of posses Carter v. 1 Salk. 241. 1 Inst. 256 a. Id. 238 a. 1 Inst. 240 b. Doe v. Danvers, infra. Effect of session. sion, no descent to the heir of the disseisor shall take away the entry of him that has right to the land, unless the disseisor has peaceable possession for five years next after the disseisin. 18. Lord Coke says, this statute does not extend to any feoffee or donee of the disseisor, mediate or immediate; and that abators and intruders are out of it, because it is penal. It follows, that the descent of an estate from an abator or intruder to his heir, takes away the entry of the person having right, and puts him to his real action. 19. If a person seised of lands in fee devises the same to a stranger in fee, and dies, by which the freehold in law is cast upon the devisee, and the heir enters and dies seised, this descent shall not take away the entry of the devisee; for (says Lord Coke) he would then be utterly without remedy. 20. In consequence of the statute 21 Ja. I. a Years Pos- peaceable possession for 20 years takes away the right of entry. In which case a release of all actions will create a good title; for no writ of right can be brought for the fee simple after such a release. Jenk. 16. Stocker v. Burney, 741. 2 Salk. 421. 21. An uninterrupted possession for 20 years, not 1 Ld. Raym. only gives a right of possession which cannot be divested by entry, but also gives a right of entry. So that if a person who has such a possession is turned out of it, he may lawfully enter, and bring an ejectment for its recovery; upon which he will be entitled to judgement. Thus a possession for 20 years, in this case, forms a positive prescription. The Posses sion must be adverse. 22. No person can be barred by the statutes of limitation, unless he is out of possession. Thus it 9 Rep. 106 a. was laid down in a case respecting the statute of Tit. 35. c. 13. fines, which is in fact a statute of limitations, that "he who has the estate or interest in him, cannot be put to his action, entry, or claim; for he has that which the action, entry, or claim would vest in or give him." From which it follows, that no person can plead the statutes of limitation, unless his possession has been adverse to that of the person who claims against him. 19, 20. 23. Joint tenants, coparceners, and tenants in Vide Tit. 18, common, having a joint possession and occupation of the whole, it is settled, that the possession of any one of them is the possession of the others or other of them, so as to prevent the statutes of limitation from affecting them; nor will the bare perception of all the rents and profits by one, operate as an ouster of the other. 1 Salk. 285. 24. In ejectment, on a trial at bar, the statute of Ford v. limitations was insisted on; but it was ruled by the Grey, Court, that the possession of one joint tenant was the possession of the other, so far as to prevent the statute of limitations. 6 Mod. 44. 25. The same point was determined as to coparceners, in the case of Davenport v. Tyrrell; and as Tit. 19. § 9. to tenants in common, in the case of Fairclaim v. Tit. 20. § 16. Shackleton, which have been already stated. 2 Salk. 422. 26. A person being seised in fee, having two Reading v. daughters, devised his lands to his grandson, by his Royston, eldest daughter, in fee. The grandson died without issue. The heir of the grandson and the heir of the coparcener entered into the land, and took the profits by moieties, for 20 years together, upon the supposition that the devise was void for a moiety. The mistake being discovered, the heir of the grandson brought an ejectment against the neir of the other coparcener. Upon a special verdict, it was objected, that the bringing the ejectment against the heir of Roe v. Ferrars, the coparcener for this moiety, admitted the plaintiff to be out of possession for 20 years, and then he was barred by the statute of limitations. The Court, however, laid it down, that the statute of limitations never runs against a man, but where he is actually ousted or disseised; and true it was, one tenant in common might disseise another; but then it must be done by actual disseisin, and not by bare perception of the profits only. 27. Where lands are held by the rector of a parish, as a compensation for tithes, this will not be considered as an adverse possession. 28. In ejectment a verdict was found for the 2 Bos.& Pull. plaintiff, subject to the opinion of the Court, whether 542. the plaintiff's right of recovery was not barred by the statute of limitations. The lessors of the plaintiff, who were lords of the manor of Beddington in Surry, sought to recover the lands as parcel of the manor, against the defendant, who was rector of the parish, and claimed them as parcel of the rectorial glebe. The lords of the manor had a right of presentation to the rectory, and were also entitled to a portion of the tithes. At various times there had been a mutual exchange of lands and tithes between the lords of the manor and the rectors, which had given, rise to much confusion, concerning their respective rights. To prove possession in the lessors of the plaintiff, a deed was produced, dated in 1703, by which the then lord of the manor demised to the rector the lands in question for 40 years, reserving a certain rent; and the rector covenanted with the lessor, that he and his heirs should have the tithe of oats of the parish. The rectors continued to hold the possession after the expiration of the lease, but withheld the rents for upwards of 20 years: the lords of the manor continued to take the tithe of oats. The Court was of opinion, that possibly, at the time when the rent was withheld, it was agreed between the then rector and the lord of the manor, that if the latter were permitted to receive the tithe as before, the former should be permitted to retain the land demised; therefore that the possession of the land the rector was not adverse, so as to let in the operation of the statute of limitations. Vide Doe 29. Where a person has conveyed away the legal estate in lands to a trustee for himself, for any particular purpose, and continues to hold the possession, he becomes tenant at will to such trustee, and his possession not being adverse to the title of the trustee, Keane v. the statute of limitations will not operate in such a 8 East, 248.] case. Deardon, 30. Where there is a valid existing lease, the right A Lease postpones the of entry is postponed till such lease is determined; Right of because the right to the possession first descends or Entry. accrues upon the determination of the lease. Nor is the plaintiff, in such a case, obliged to show that he has received any rent on the lease. Maddox, 81. In ejectment for lands at Deptford in Kent, Orrell v. the lessor of the plaintiff claimed the estate as heir at Runn. Eject. law to John and Edmund Walthew, who had granted App. No 1. long leases of the premises, reserving rent; the leases expired in 1789, on which one Elizabeth Ellerbeck had entered in the name of herself and the lessor of the plaintiff; and Mr. Madox the defendant had brought an ejectment, claiming not only by an assignment of the lease, under which he had got into possession, but also by a conveyance of the reversion, by lease and release, from the heirs of Dame Elizabeth |