tenant in tail after possibility of issue extinct : for he is considered in many respects, as tenant for life only. He cannot suffer a recovery: he may be enjoined from committing waste, such as hurts the inheritance, as felling timber; though not for committing common waste, being considered as to that as tenant in tail. Where it is the case of tenant for years determinable on lives, he certainly must be included within the act; though it says only tenant for life: it would be playing with the words to say otherwise. These cases show the necessity of construing this act beyond the words. Tenant in tail has certainly a larger estate than a mere tenant for life for he has the inheritance in him, and may, when he pleases, turn it into a fee; but, if he does not, at the instant of his death he has but an interest for life. Such too is the case of a wife, tenant in tail ex provisione mariti: upon this point I give no absolute opinion. As to the equity arising from this statute, I know no better rule than this; equitas sequitur legem: where equity finds a rule of law agreeable to conscience, it pursues the sense of it to analogous cases. If it does so as to the maxims of the common law, why not as to the reasons of the acts of parliament? Nay, it has actually done so on the statute of forcible entry, on which this Court grounds bills, not only to remove the force, but also to quit the possession. This Court extends the reason to equitable interests, but I ground my opinion, in this case, on the tenant's having submitted to pay the rent. He has held himself bound in conscience, for the use and occupation of the land the last half year he paid it to the defendant, which he was not bound to do in law. And, in such a case, the person

he

pays it to shall be accountable, and considered as receiving it for those who are in equity entitled thereto. The division must be that prescribed by the statute; and then the plaintiff is entitled to such a proportion of the rent, as accrued during the testator's life. Accordingly it was so decreed.

44. In a subsequent case, where a person held from year to year under a tenant in tail, the Court of Chancery decreed an apportionment.

Vernon,

659.

45. H. Vernon being tenant in tail of estates in Vernon v. the county of Sussex, died on the 17th of March, an 2 Bro. R. infant, by which John Vernon, one of the plaintiffs, became tenant in tail of the estate: part of the lands was occupied by persons holding from year to year, under the guardian; and their rents were payable at Lady and Michaelmas-day, which demises expired by the death of H. Vernon. These rents having been paid to the receiver, the question was, whether the administratrix of H. Vernon was entitled to a proportion of the rents, or the remainder-man was entitled to the whole.

The Master reported, that a proportion of the rent was due to H. Vernon on the day of his death: to which the remainder-man took an exception, that he ought to have certified that no sum was due to H. Vernon on the day of his death; in regard that he was tenant in tail of the estates of which the Master certified the said rents or proportions to be due.

Lord Thurlow-" The case of Pagett and Gee seems rather to be a decision what the statute ought to have done than what it has done: but the question here seems to turn on another ground; that the tenant holding from year to year, or from period to

Hawkins v.'Kelly,

8 Ves. 308.

period, from a guardian, without lease or covenant, cannot be allowed to raise an implication in his own favour, that he should hold without paying rent to any body."-The exception to the Master's report was over-ruled.

TITLE XXIX.

DESCENT.

CHAP. I.

Of the Title to Things Real.

CHAP. II.

Of Descent and Consanguinity.

CHAP. III.

Of the Rules or Canons of Descent.

CHAPTER IV.

Of the Descent of Estates in Remainder and Reversion.

HAVING treated of the several kinds of real

property, both corporeal and incorporeal, and

of the estates that may be had therein; it will now

Nature of a Title.

1 Inst. 345 b.

2 Comm. c. 13.

Possession.,

Effect of an Entry.

Tit. 1. § 24.

be necessary to consider the title to real property, with the manner in which it may be acquired or lost.

2. A title is thus defined by Lord Coke, Titulus est justa causa possidendi id quod nostrum est. Or it is the means whereby the owner of lands hath the just possession of his property. But Sir W. Blackstone observes, that there are several stages or degrees requisite to form a complete title to lands and

tenements.

3. The first degree of title is the bare possession, or actual occupation of the estate, without any apparent right, or any pretence of right, to hold and continue such possession. This may happen where one man disseises another; or where, after the death of the ancestor, and before the entry of the heir, a stranger abates, and holds out the heir. In these cases the disseisor or abator has only a mere naked possession, which the rightful owner may put an end to, by an entry on the land; but in the meantime, till some act is done by the rightful owner, to divest this possession, and assert his title, such actual possession is prima facie evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title; at all events, without such actual possession, no title can be completely good.

4. The necessity of an entry by the heir, upon the death of the ancestor; or, where that is prevented, of a continual claim, has been already stated. In the case of a disseisin or ouster, there must also be an 1 Inst. 252. entry. And if there be two disseisors, the disseisee must make his entry on both; or if one disseisor has conveyed the lands with livery to two or three per

both