not avail the grantee in respect to the part not embraced in the deed. (Ward v. Bartholomew, 6 Pick. R. 409.)

Thus much upon the subject of disseisin and descent cast. The discussion might be continued much further, but the investigation would, perhaps, be considered unprofitable. In respect to the doctrine of descent cast, it has been well said that it is scarcely possible to suggest a case in which it can be now so applied, as to prevent a claimant from maintaining ejectment, because from the principles of disseisin at election, he may always lay his demise in the time of the ancestor, and elect not to be disseised. Besides, the doctrine has become of less importance from the fact that it has been provided by statute in many of the States, that the right of a person to the possession of any real property shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property. (Vide 2 N. Y. Stat. at Large, 306, § 87.) In other words, the doctrine of "descent cast" has been abrogated by the statutes of many of the states, and by the statute now in force in England. But at common law, the doctrine does not apply, if the claimant be under any legal disabilities during the life of the ancestor, either of infancy, coverture, imprisonment, or being out of the realm; because in all these cases there is no neglect or laches in the claimant, and therefore no descent shall bar or take away his entry. (Litt. 1, 3, c. 6.) More of this, however, when the statute of limitations is considered, which will be the subject of the next chapter.

THE

CHAPTER V.

STATUTE OF LIMITATIONS AS A BAR TO THE ACTION OF EJECTMENT THE LAWS OF GREAT BRITAIN AND THE PROVINCE OF ONTARIO, NEW YORK, AND NEW JERSEY.

Ir has been held that the claimant in an action of ejectment must have not only a legal title to the lands in dispute, but he must also have a right of entry, or a right to the possession of the premises in controversy; and that whatever will take away this right of entry, or right of possession, will defeat the action. The subject of descent and disseisin, as an extinguishment of this right,

has already been considered, and it remains now to examine the manner by which it may be destroyed by the statute of limitations.

Title to lands, by adverse enjoyment, owes its origin to, and is predicated upon, the statute of limitations, and although the statute does not profess to take an estate from one man and give it to another, it extinguishes the claim of the former owner, and quiets the possession of the actual occupant, who proves that he has occupied the premises under a color of title, peaceably and quietly for the period prescribed by law. The statute of limitations, therefore, may properly be referred to as a source of title; and is really and truly as valid and effectual as a grant from the sovereign power of the state.

The term "limitation," as used in the statutes of this country, is nearly synonymous with the word "prescription," used in the Roman law, and means the time prescribed by statute within which a title to property may be acquired by adverse possession; or, at the end of which an action is barred for its recovery. Prescription, as at present understood, has no application to the action of ejectment, for the reason that an exclusive right of possession of real property cannot be established by prescription. The term applies only to incorporeal hereditaments, and for incorporeal hereditaments ejectment will not lie. (Vide Ferris v. Brown, 3 Barb. R. 105. Cortelyou v. Van Brundt, 2 Johns. R. 362.) But limitation, as prescribed by statute, extends to corporeal hereditaments, and thereby an uninterrupted possession for a certain number of years will give the possessor a good title by taking from all others the right of maintaining any action for the recovery thereof. Strictly speaking, no positive right is acquired by virtue of the statute of limitations, but only the remedy of the former possessor is taken away for the recovery of the property adversely enjoyed.

The statute of limitations for the recovery of real property differs in the different states, and as the subject of adverse possession will be specifically treated in another part of this work, a brief reference will only be made here to the statutes of the several states, and the cases in which those statutes are applicable to the action of ejectment.

Before referring to the statute of limitations in force in this country however, it may be advisable to consider, in a very concise man

ner, the act now in force in England for the limitation of actions on suits relating to real property, and for simplifying the remedies for trying the rights thereto. It is the statute of 3 and 4 William IV, ch. 27, and it appears to be the model after which the statutes of limitations in most of the American states have been framed.

By the English statute, all titles to lands are reduced to possessory titles, so that the right of recovery and the remedy by ejectment are made co-extensive, while the mere acquiescence of a claimant, or succession of claimants in the same right (being under no legal disabilities), in the possession of the land by a stranger, without enforcing his or their rights by legal proceedings for a period of twenty years, is an effectual bar to all claims against the party so possessed, and such possession, undisturbed for forty years, gives to him an absolute indefeasible title to the property, notwithstanding there may have been a continued existence of legal disabilities in the rightful owners.

The first section of the act simply gives the meaning of certain words and expressions used in the act. The second section provides, that no person shall make an entry or bring an action to recover any land," but within twenty years next after the time at which the right to make such entry or to bring such action shall have first accrued to some person through whom he claims; or, if such right shall not have accrued through any person through whom he claims, then within twenty years next after the time at which the right to make such entry or to bring such action shall have first accrued to the person making or bringing the same."

It is declared by section 3 of the act, that the right to make such entry or bring such action is deemed to have first accrued according to the following rules, viz.: when the claimant has, in respect of the estate claimed, been in possession, and while entitled thereto been dispossessed, or discontinued such possession, then such right shall be deemed to have first accrued at the time of such dispossession, or discontinuance of possession, or at the last time at which any profits were received; and where the claimant shall claim the estate of some deceased person, who shall have continued in such possession until the time of his death, and shall have been the last person entitled to such estate who shall have been in such possession, then such right shall be deemed to have first accrued at the time of such death; and when the claimant shall claim in respect of an estate in possession, in any manner assured by any instru

ment, other than a will, to him, or some person through whom he claims, by a person being in respect of the same estate in possession, and no person entitled under such instrument shall have been in such possession, then such right shall be deemed to have first accrued at the time at which the claimant became entitled to such possession by virtue of such instrument; and where the estate claimed shall have been a future estate, and no person shall have obtained the possession in respect thereof, then such right shall be deemed to have first accrued at the time at which the same became an estate in possession; and where the claimant has become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was increased, or such condition broken.

By sections 10 and 11 of the act, it is declared that no person shall be deemed to have been in possession within the meaning of such act, merely by reason of having made an entry thereon, or continued claim thereof; and by section 35, the receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee, or any person claiming under him, but subject to the lease, be deemed to be the receipt of profit; and by section 14, where any acknowledgment of title shall be given to a party or his agent, in writing, signed by the person in possession, then the possession of such person shall be deemed to be the possession of the party to whom or to whose agent such acknowledgment was given; and the right of such party, or those claiming through him, to recover such land, shall be deemed to have first accrued at and not before the time at which such acknowledgment was given. It will be observed that an attornment in writing is a good admission of title by the provisions of the above section 14, and it has been held, that, if it be merely an attornment, and do not amount to a new demise, it will not require a stamp. (Doe v. Edwards, 5 Adolph. & Ell. R. 95.) It has also been held, that, when, on an application for alleged arrears of rent, the tenant, by letter, complained of having been put to much expense with respect to the land, and said it was reasonable that the lords of the fee should make him recompense accordingly, and that F., the party applying, should vindicate his right to the land rather than that the expenses should fall upon the tenants, and concluded his letter by begging" compassion, mercy, and pity, and recompense in a satisfactory manner;" this was an admission of title within the meaning

of said section 14. (Furdson v. Clegg, 10 Mees. & Welsb. R. 572.) But, where a party in adverse possession of land, being applied to by a person claiming title to it to pay rent, offering a lease of it, wrote thus: "Although if matters were contested, I am of opinion that I should establish a legal right to the premises; yet, under all circumstances, I have made up my mind to accede to the proposal you make of paying a moderate rent, on an agreement for a term of twenty years;" but the bargain was not consummated, and no rent was paid or lease executed; this letter was held by the court not to amount to an admission of title within the meaning of this section. (Doe v. Edmonds, 6 Mees. & Welsh. R. 295.)

Where A was in possession of lands for more than twenty years, and died in possession, and his widow had possession from that time until her death, twenty years after, and B was the eldest son of both A and his wife, it was contended that B could not recover, because, as heir of his father, he had been kept out of possession by his mother above twenty years, and was, therefore, barred by the statute 3 and 4 William IV, ch. 27, and he could not claim, as heir of his mother, because, the mother's possession not being an adverse one, she could not acquire a descendible estate. Coleridge, J., directed the jury to infer, that the property belonged to the mother, and survived to him on her husband's death, and then descended to B, as his heir, and the plaintiff had a verdict. (Doe v. Long, 9 Carr. & Payne's R. 773.)

Section 3 of the statute of 3 and 4 William IV, ch. 27, provides, that, where the estate claimed is a future estate, and no person has obtained possession in respect thereof, then the right is deemed to have first accrued at the time at which such estate became an estate in possession. When, therefore, a lessor allowed his tenant to remain in possession for more than twenty years without paying rent, it is held, that he is not thereby deprived of his right, but may bring his action at any time within twenty years after his reversion becomes an "estate or interest in possession," viz., after the term of the tenant has expired. (Doe v. Oxenham, 7 Mees. & Welsb. R. 131.) But, where the tenant for life has gone abroad, and not been afterward heard from, it is decided, that the statute begins to run against the remainderman from the time the tenant for life goes abroad, unless he is able to prove his exact death, and not from the expiration of seven years. (Nepean v. Doe, 2 Mees. & Welsb. R. 894.)