The case of Saule v. Clarke, (a) above cited was this; A. S. being tenant in tail male, and reversion in fee to John, his eldest brother, made a lease for three lives, not warranted by the statute; then a fine with proclamations was levied by Alexander to one Taylor, and then Alexander died without issue male, living the lessee for life. Five years and more expired in the life of John, alter the death of Alexander. John his brother died without issue, Elizabeth, the daughter and heir of Alexander, being niece and heir of John, the lease for three lives expired; and if Elizabeth was barred by this fine and non claim was the question.

[*17]

And after many arguments at the bar, and after at the bench, all the judges were of opinion that Elizabeth was barred; for when John, who had the right at the time of the death of Alexander without issue male, had not prosecuted that title, it is a bar; and he shall not have any *advantage of entry after the death of tenant for life; because he had not any other title after his death than he had before; for his title was by the death of tenant in tail without issue male, and then he might have brought his formedon; and when he doth not pursue his title which first vested, he and his heirs shall be barred; and they shall not have five years after the death of the tenant for life; which reason, it was contended, was agreeable to the case in question.

The (b) court of queen's bench, in the first writ of error brought in the above case of Hunt v. Burn, held that, supposing the plaintiff barred of his formedon, yet he is not thereby hindered to pursue his right of entry, which accrued to him by the death of tenant for life; for that is a new right which he had not before: that when a man releases his right, he cannot pursue his action or remedy; but if a man has a right and several remedies, the discharge of one is not a discharge of the other; and that the statute of 4 H. VII. of fines enures and

operates by way of bar to the right, which answers Saule and Clarke's case; but that the statutes of limitations operate by way of bar to the remedy; [1] and the word right in the statute 21 Jac. I. c. 16. is right of entry.

[1] The Act of Limitations affects the remedy, and not the right. Jones administrator vs. Hook's administrator, 2 Rand. Rep. 303. Graves vs. Grave's Executor, 2 Bibb's, Rep. 207.-Commonwealth, vs. McGowan, 4 Bibb's, Rep. 63.—& vide to the same purport, Lord & Al. Executors &c. vs. Shaler, 3 Conn. Rep. 131. Gustin vs. Brattle, Kirby's Rep. 303.

It is settled,

That the statute of limitations does not destroy 'the debt:" it only takes away the remedy.' (per LORD MANSFIELD, Quantock & Al. assignees vs. England, 5 Burr. Rep. 2630.

१

СНАР. П.

Right of Entry.

WHEN THE STATUTE RUNS OF POSSESSION.

RIGHTS of entry are tried in ejectment, in which action the plaintiff recovers on the strength of his own title, and not on the weakness of that of the defendant; (a) he recovers a possession; and the right to that possession, since the statute of 21 Jac. I. c. 16. must have accrued within twenty years of the action brought; therefore, (b) when there hath been no possession within that time, [1] either in the lessor of the plain

[1] It is not necessary, however, that either the lessor of the plaintiff or his ancestors should ever have had actual possession; legal possession or seisin in law is sufficient to sustain his suit. In Jackson ex dem. Beekman vs. Sellick, 8 Johns. Rep. 262, it was decided, that where a feme covert is the owner of wild and uncultivated land, she is considered in law, as in fact, possessed, so as to enable her husband to become a tenant by the curtesy-and KENT, Ch. J. in delivering the opinion of the Court, among other things, said: "There was no pedis possessio or possession in fact, of the premises, in the popular sense of the words, by either Matthews or his wife during the coverture; for the lands continued vacant, or remained as new lands, wild and uncultivated, from the date "of the patent in 1704, to the time of the commencement of the "adverse possession in 1772. The title under the Patent to an un"divided eighth part of the premises, clearly existed in Matthews' "wife. She derived it by will from her mother, who was one of the four co-heirs of Henry Van Ball. The question is, was "she not to be considered as seised in fact of these premises, "so as to enable her husband to become a tenant by the cur"tesy? To deny this, would be extinguishing the title of tenant by the curtesy, to all wild and uncultivated land. It has long "been a settled point, that the owner of such lands is to be deem"ed in possession, so as to maintain trespass. The possession of such property follows the title and so continues, until an adverse

tiff or his ancestors, the plaintiff in this action will be nonsuit

"possession is clearly made out. This is the uniform doctrine of this "Court; and there is no reason why the same rule should not ap"ply where the title by curtesy is in question." And after citing Co. Litt. 29. a.; De Grey vs. Richardson, 3 Atk. 469, and Sterling vs. Penlington, (7 Viner, 149. pl. 11 curtesy A.) he adds.; "These cases "are as strong as the present, and prove that actual entry or pedis "possessio, is not absolutely requisite, and that if the party is con"structively seised in fact, it will be sufficient."-this case was cited and confirmed in Jackson ex dem. Austin & al. vs. Howe & al. 14 Johns. Rep. 406; and in Jackson ex dem. Swartwout & Ux. vs. Johnson, 5 Cow. Rep. 102. and in Jackson ex dem. Woodruff & al. vs. Gilchrist, 15 Johns. Rep. 117.

It is not necessary, to entitle the owner of land to recover in ejectment, that he should prove, that he, or those under whom he claims, have been in possession within twenty-one years, [The time limited by the laws of Pennsylvania,] before bringing suit. Possession by operation of law, accompanies the title, unless the contrary is shewn, and until it is shewn. Hawk vs. Senseman and others, 6 Serg and R. Rep. 21, 23. & vide, Clay vs. White & others, 1 Munf. Rep. 162.

Title draws possession to the owner, It remains, until he is dispossessed, and then no further than actual dispossession, by a trespasser, who cannot acquire a constructive possession, which always remains with the title. Hall & others vs. Powell, 4 Serg. and R. Rep. 466. & vide Barr vs. Gratz's heirs, 4 Wheat. Rep. 222. Doe ex dem. Arden & al. vs. Thompson, 5 Cow. Rep. 375.

Actual possession or entry of owner is not necessary where there is no adverse holding. Lessee of Potts vs. Gilbert, 1 Journal of Jurisprudence 254, 256. and vide Lewis, Lessee vs. Beall, 4 Har. & McHen. Rep. 488.

In order to support even a writ of right, it is not necessary to prove an actual entry under title, or actual taking of esplees, a constructive seisin in deed is sufficient. Green vs. Liter & others, 8 Cranch's Rep. 229.

The construction which would require an entry into lands, by the owner, within a limited time after the title accrued, unless there be some adversary title or possession to be defeated by such entry, "is totally inadmissible. How such an opinion could "have been entertained is unaccountable. There is no foundation "for it"-Per MARSHALL, CH. J. delivering the opinion of the court, in Shearman vs. Irvine's, Lessee, 4 Cranch's Rep. 369.

In an action of ejectment, it was held, that an actual entry was not necessary in any case, expect to avoid a fine. Jackson ex dem. Bronck vs. Crysler, 1 Johns. Cas. 125.

"An entry adverse to the lawful possessor is not to be presumed. "It must appear by proof. In this case it is found, that the title of the heirs was not disputed by any of the settlers, until after

ed, unless he can account for it under some of the exceptions allowed by the statute.

"the peace of 1783. The statute of limitations could not begin "to run, until the possession of the defendant was avowedly held "in opposition to the rights of the heirs, and the time when that "took place was long within the period of twenty years." PER CURIAM. Jackson ex dem. Gansevoort & al. vs. Parker, 3 Johns. Cas, 125.

Lapse of time will never bar one out of possession, except where there is one holding adversely. Harlock & al. vs. Jackson, 1 Constit. Rep. 135.

For the statute of limitations to operate as a bar, the possession must be adverse. Morris' Lessee vs. Van Deren. 1 Dallas' Rep. 67. Legal seisin carries with it the possession, unless there be adverse possession. (PER SEWALL, J.) Proprietors of Kennebeck Purchase vs. Call, 1 Mass. Rep. 484. S. P. Proprietors of Kennebeck purchase vs. Springer, 4 lbid. 416.

The possession of a part of a tract of land with title to the whole, is the possession of the whole, except against an adverse possession by actual enclosure for upwards of twenty years. Gibson vs. Martin, 1 Har. & Johns. Rep. 545. Proprietors of Kennebeck purchase vs. Springer, 4 Mass. Rep. 416.

"In this country there is no necessity for an entry until an ac"tual adverse possession commences, and that actual adverse pos"session must be continued for seven years without entry or claim "on the other side, before it can toll the Plaintiff's right of entry. "The contrary doctrine in this country would be attended with "consequences very fatal to titles for land." Den ex dem. Park vs. Cochran & al. 1 Hayw. Rep. 180. & vide Den ex dem. Slade vs. Smith, Ibid. 249. Taylor vs. Buckner, 2 Marsh. Rep. (Ky.) 19.

The Plaintiff in ejectment need not be in actual possession within seven years if he has a title by deed or grant, he has a constructive possession by operation of law, which preserves his right of entry, until it be destroyed by an actual adverse possession, continued for seven years together; if he has never seen his land-if he has not entered upon if for fifty years, his title may be good, if his adversary hath not, been in possession for seven years continually, during the whole time with a colour of title. Young vs. Irwin, 2 Hayw Rep. 11.

"Seisin and possession continue in the owner, until he is disseised; and no further is the possession lost, than of that of which he "is actually disseised. This is a doctrine of law familiar to those "acquainted with its first rudiments. Possession and the right are "preserved together. The rightful owner, in presumption of law, "is in the constant possession, until that possession is adversely "interrupted and exclusively possessed by another." Miller & al vs. Shaw, 7 Serg. & R. Rep. 142. (per. DUNCAN J.)