wards, on the death of the tenant for life. So, where the defence was, that, as a devisee for life had never entered, and as a refusal to accept the devise was therefore to be presumed, the right of the remainderman to enter having thus accrued, he was bound to enter within twenty years. The court said, it was true, that the remainderman might have entered immediately on the refusal of the devisee, but that one might have different rights of entry; and, although the devisee for life refuses to accept the estate devised, and the remainderman thereby acquires an immediate right of entry, yet he is not obliged to avail himself of his right so accruing, but may enter after his second right accrues, by the death of the tenant for life. To these cases, showing that the remainderman need not insist on the forfeiture of the estate for life, but may wait the regular expiration of the particular estate, and the statute does not begin to run till that time, the following case was held to be analogous: A was tenant for life, with a power of appointment by will, attested by three credible witnesses. By will, attested by three witnesses, he appointed the lands to B for life, and after her death to C in fee. B was one of the witnesses to the will, and the appointment to her was therefore void. On the death of the testator, the husband of B entered, and held the land till his death, which was three years after the death of B. The statute, it was held, did not begin to run against C till the death of B, notwithstanding the life-estate was bad.1 1 2 Cruise, Dig. 501; Stevens v. Winship, 1 Pick. (Mass.), R. 318; Gwynn v. Jones, 2 Gill & Johns. (Md.), R. 173; [Miller v. Ewing, 6 Cush. (Mass.), 34]. 2 Wells v. Prince, 9 Mass. R. 508. By the statute of 3 and 4 Will. IV. (see App. vi.), sections 3 and 4, reversioners and remaindermen have two periods prescribed, when they may enforce their claim: 1st. when a forfeiture takes place, or, 2d. at the time when the reversion becomes an estate in possession; and, by section 6, of the same statute, the statute continues to run, notwithstanding the death of the party, and there has been no administrator, which is different from the law before that statute. (See ante, Chap. VII.) If a tenant by the curtesy makes a conveyance of the estate in fee, he thereby creates a forfeiture of his estate, and the reversioner has thereupon an immediate right to enter. French v. Rollins, 8 Shep. (Me.), R. 372. But, where a tenant by the curtesy of an undivided portion of an estate had abandoned the land for more than forty years, leaving it in the possession of another tenant in common, whose occupancy was an ouster; it was held, that the reversioner of such undivided portion of the estate had no right of entry upon the tenant in possession, during the life of the tenant by the curtesy his abandonment of the land being no forfeiture of the estate. Witham v. Perkins, 2 Greenl. (Me.), R. 400. - 8 Per Mr. Justice Taunton, in Allen v. Blakeway, 5 Carr. & Payne, R. 563; and 24 Eng. Com. Law R. 456. 4 Allen v. Blakeway, supra. § 376. It has been expressly held, that, where the person who is made tenant for life has been absent seven years (though, in common cases, the presumption of law is, that he is dead), yet, as there is no legal presumption as to the time of his death, a party, who claims as a reversioner, cannot avail himself of this presumption to establish that the tenant for life died within twenty years from the commencement of the action; but he must prove, by direct evidence, that he did die within that time. The length of time may, however, be so great as to preclude the necessity of direct evidence. In a case where the plaintiff in ejectment deduced his title to the land in question, he gave in evidence a grant for the land in 1671 to T. P. and R. B., and that T. R. was seised and possessed of the land, and died so seised in 1746, having, by his will, in 1744, devised the land in tail to his son F. R., after his mother's death. In 1780, F. R., being in possession, conveyed the land to B. G., who died intestate, in 1800, leaving six children, one of whom conveyed all his interest to the lessor of the plaintiff. It was contended that the death of the tenant for life was not proved; but it was held, that the life-estate, set up to defeat the action, must, from the length of time that had elapsed (1746 to 1808), be considered as having expired before the ejectment was brought; and, consequently, the plaintiff was entitled to recover.2 § 377. When an action of ejectment is brought within the time limited by the statute for the right of entry upon land, the confession of lease, entry and ouster, includes all the essential formalities, and proof of an actual entry is dispensed with. But when the action is not brought until after the time limited has expired, it is incumbent on the lessor of the plaintiff to prove an actual entry within such 1 This was held under the statute of 3 and 4 Will. IV., the 3d section of which provides expressly, agreeably to the before-settled construction, that, in case of remainders or reversions, the time runs from the time when the remainder or reversion becomes an estate in possession. Nepean v. Knight, 2 Mees. & Welsb. (Ex.), R. 911. And see French v. Rollins, 8 Shep. (Me.), R. 372. 2 Stephenson v. Howard, 3 H. & Johns. (Md.), R. 554. 8 3 Cruise, Dig. 483; 1 Saund. R. 319, n.; Jackson v. Crysler, 1 Johns. (N. Y.), Ca. 125; Bond v. Hopkins, 1 Sch. & Lefr. R. 413; Hall v. Vandergrift, 3 Binn. (Penn.), R. 374; Smith v. Burtis, 9 Johns. (N. Y.), R. 174; Jackson v. Cairns, 20 id. 301; Demarest v. Wynkoop, 3 Johns. (N. Y.), Ch. R. 129; Den v. Morris, 2 Halst. (N. J.), R. 6. time; that is, the entry must be upon the land in question. In an ancient case, where a fine was levied, the lessor of the plaintiff proved that, at the gate of the house in question, he said to the tenant that he was heir to the house and the land, and forbade him to pay rent for the future to the defendant. It was agreed that the claim at the gate would not have been sufficient, had it not have appeared, that there was a court before the house, which belonged to it; and, such being the case, the claim was on the land, and, consequently, was held good. In a very modern case in this country, it was held, that the acts of riding along the public highway, which passed over certain lots, and there making an inquiry about them, have not the requisite properties of an entry.3 Where a part of the land claimed is in one county and part in another, there must be a distinct entry for each county: but, if the whole be in one county, an entry, with a declaration in the name of the whole, is sufficient. If, by force or fraud, the party is prevented from making an actual entry on the land claimed, his intent to do so, declared as near the land as possible, is equivalent to an actual entry.5 § 378. The material point is, that the entry be made animo clamandi; and no entry, where it appears at the time that there was no intention of making claim, will be of any effect. Where, therefore,⚫ 12 Cruise, Dig. 501; Berrington v. Parkhurst, 13 East, R. 489; Doe v. Danvers, 7 id. 299; Goodright v. Cator, Doug. R. 477; Shearman v. Irvin's Lessee, 4 Cranch (U. S.), R. 367; Jackson v. Haviland, 13 Johns. (N. Y.), R. 229; Brown v. Porter, 10 Mass. R. 93; Harbaugh v. Moore, 11 Gill & Johns. (Md.), R. 283; Ridgley v. Ogle, 4 H. & Johns. (Md.), R. 128. To avoid the statute, it is not necessary to bring an action; it is sufficient to make an entry upon the land. Altemus v. Campbell, 9 Watts (Penn.), R. 28. 2 Anon. Skinn. R. 412. 3 Robinson v. Sweet, 3 Greenl. (Me.), R. 316. And see Proprietors of Kennebec Purchase v. Laborce, id. 275. + Co. Litt. s. 419; Jackson v. Lunn, 3 Johns. (N. Y.), Ca. 115. 52 Cruise, Dig. 501; Jackson v. Schoonmaker, 4 Johns. (N. Y.), R. 389; Jackson v. Haviland, 13 id. 229. 6 See authorities just above cited. An entry to purge a disseisin should be made with that intention; and such intention should be sufficiently indicated, either by the act itself, or by words accompanying the act. Per Weston, J., in delivering the opinion of the court, in Robinson v. Sweet, 3 Greenl. (Me.), R. 316. Whether an entry and making a survey amount to an entry animo clamandi, is a question for the jury, not for the court. Miller v. Shaw, 7 Serg. & Rawle (Penn.), R. 129. See also, Brown v. McKinney, 9 Watts (Penn.), R. 567; Holtzapple v. Phillibaum, 4 Wash. (Cir. Co.), R. 567; [Dillon v. Mattox, 21 Geo. 113]. a party, by invitation of the tenant, went into a cellar to see its antiquity, it was adjudged to be no such entry as would vest the possession in the person so entering. Again, where the evidence was, that the party claiming to have made an entry, went to the house occupied by the defendant, by agreement with him, to see it, with an expectation of his taking a lease, or making an arrangement or compromise with him, but not to take possession, and nothing of the kind was effected; it was held, that this was not such an entry as would avoid the statute. The entry must be such as to challenge the right of the occupant; or, in other words, it must bear on the face of it an unequivocal intent to resume the actual possession.3 $379. A guardian for nature or in socage may enter in the name of his ward, without any command or assent; and so, also, the remainderman or reversioner may enter in the name of tenant for life, or years, or those particular tenants in the name of the reversioner or remainderman, without any command or assent, on account of the privity between the parties. So, likewise, an entry by a cestui que trust will be sufficient; 5 and, as the entry of one joint-tenant, coparcener, or tenant in common, will avoid the effect of a fine as to the other joint or cotenant or coparcener, it will have the effect to avoid the statute of limitations.7 1 Plowd. 92, 93. 2 Altemus v. Campbell, 9 Watts (Penn.), R. 28. 3 Gibson, Ch. J., in Altemus v. Campbell, supra; Waterhouse v. Martin, Peck, (Tenn.), R. 392. [The recovery of a judgment in an action of ejectment without an entry, does not stop the running of the statute. Kennedy v. Reynolds, 27 Ala. 364.] 4 Podger's Case, 9 Co. 106 (a); McMasters v. Bell, 2 Penn. R. 180. 5 Gree v. Rolle, 1 Ld. Raym. R. 716. as well as Hooper v. Ingersoll v. 6 Tidd, Pr. 1199; Steph. N. P. 1394; Gill v. Pearson, 6 East, R. 173. 7 Watson v. Gregg, 10 Watts (Penn.), R. 296. [What facts constitute, the question whether the facts constitute, an entry, shall be left to the jury. Garver, 15 Penn. St. (3 Harris), 517. An entry by an agent is sufficient. Lewis, 11 Penn. St. (1 Johns.), 212. And a subsequent ratification of the entry of a person unauthorized originally to make it, is equivalent to an entry by previous command. Hinman v. Cranmer, 9 Barr (Penn.), 40.] 32 CHAPTER XXXI. ADVERSE POSSESSION. § 380. THE circumstances under which the occupation of land constitutes a possession sufficient to defeat the right of entry under the statute of limitations, are the foundation upon which all real and possessory actions are supported. The doctrine, therefore, by which the limitation of the action in every case is governed, is of much moment, and one which, in the United States, has afforded a field of judicial discussion and decision, correspondent in length, breadth, and variety, to the occupied territorial limits within their jurisdiction; limits which embrace immense tracts of soil but here and there reclaimed from their primeval condition, as well as densely populated commercial and manufacturing cities and districts, almost innumerable. As a general doctrine, it has too long been established to be now in the least degree controverted, that what the law deems a perfect possession, if continued without interruption during the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee. Independently of positive or statute law, the possession supposes an acquiescence in all persons claiming an adverse interest; and upon this acquiescence is founded the presumption of the existence of some substantial reason (though perhaps not known), for which the claim of an adverse interest was forborne. Not only every legal presumption, but every consideration of public policy, requires, that this evidence of right should be taken to be of very strong, if not of conclusive force.1 There are some statutes which, as has 1 See ante, Chap. I. An adverse possession, where it actually exists, may be set up against any title whatever, and to make out a title under the statute of limitations. Per Johnson, J., in giving the opinion of the Supreme Court of the United States, in Bradstreet v. Huntingdon, 5 Peters (U. S.), R. 438. Jackson v. Diffendorf, 3 Johns. (N. Y.), R. 267. See also, Heinneccius, p. 6, s. 208; Gro. L. 2, c. 4, p. 86; Run. on Eject. 59; Stokes v. Berry, Salk. 421. An undisturbed possession of twenty years is evidence of an estate in fee if no other title appear, and upon such evidence a plaintiff may recover in |