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Possession of benefices, what

not.

lease. But the payment by the lessee under such a lease, and the acceptance by the successor of the lessor, of the rent reserved by the lease, is evidence against such successor of a demise by him from year to year(n), as well as in the case of a natural person (o).

By institution the church is full against all persons is and what is except the king (p), and is sufficient to enable the presentee to maintain the possessory action of quare impedit (q). But although he who has the right to the advowson was, before the 7 Anne, c. 18, put out of possession by admission and institution upon an usurpation by presentation but not by collation (r), and à fortiori, if induction thereon followed (s), yet induction alone gives to the presentee the temporal and corporeal possession of the church with the rights thereto belonging (t), puts him into the actual possession of a part for the whole without the necessity of his actually going upon the glebe itself (u), and enables him to maintain both trespass (r) and ejectment (y). In donatives the appointment alone is induction, and therefore possession (z); but in curacies, the curate is not in possession until licensed (a).

Against right

title.

If possession be acquired wrongfully against the ful owner gives rightful owner, who is under no personal disability or incapacity recognized by law as relieving him, during the existence of such disability, from the consequences of not asserting his right (b), or if the possession be acquired rightfully, and the right to it so acquired after

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wards determine, but the possession be continued from that determination for twenty years against such owner (c), such possession confers on the possessor, as against such owner, a title to the land; but the law merely negatives the title of such owner as against the actual possessor, and does not affirm, but leaves open, the title of such possessor as against all other persons. But to constitute a title against such owner the pos- But must be session must be continuous for the requisite period, by or through the original possessor (d), and not merely for a series of distinct periods of time, but each less— together greater-than such period, by different persons successively independent of each other, and not claiming by or through such possessor or each other (e). So, also, to constitute a title against such possessor (f).

continuous.

confer no title beyond mere

But possession may be acquired under circumstances May be so acwhich, as between the possessor of, and those persons quired as to who, subject to his possession, have the property in, the land, will deprive the possession of any efficacy to confer possession; as, on him, apart from his possession, any title to the land itself against them, beyond that which gives him the right to the possession of it. Whenever a person comes to the possession, either by judgment of law, or by his own agreement, and holds that possession, he, and all who claim under him, must hold it according to his right to the possession, and cannot qualify it by any other right (g).

There may be a possession not accompanied by the -by contract, or judgment freehold, such as chattel interests of various kinds cre- of law; ated either by compact of the parties or by judgment of

(c) Keyse v. Powell, 2 Ell. &

B. 132.

(d) Asher and Ux. v. Whitlocke, L. R., 2 Q. B. 1; 35 L. J., N. S., Q. B. 17; 11 Jur., N. S. 925; 13 T. R., N. S. 254; 14 W. R. 26, S. C.

(e) See Doe d. Evans v: Page, 5 Q. B. 767; Doe d. Carter v. Barnard, 13 Ib. 945; Dixon v. Gayfere, No. 2, 17 Beav. 433.

(f) Ib.; Asher and Ux. v. Whitlocke, supra.

(g) 2 Sch. & Lef. 98.

law, as in the case of an elegit creditor. These tenants have not the freehold in them, nor can a warrant which is to deal with the right to the lands be brought against them; they can by no possibility lawfully meddle with that right, they are disabled by the imbecility of their estates. The possession of the person holding under such title is the possession of the parties who have the freehold, and he cannot be allowed to deal with the possession so as to deprive the person entitled to the freehold of his right.. Therefore, whoever gets such possession, and whoever takes by assignment from him, never can set up such possession against the person having the freehold out of which such chattel interest was created (h).

Persons coming into possession therefore by contract, as in case of landlord and tenant (i), must hold according to the right acquired by such persons and cannot qualify that right by any other right; and whilst any contract express or implied subsists between the persons in and the persons out of possession, the possession, in general, cannot be adverse (k). When possession is gained under a contract by even a person having a right, he can only have the possession such as the person has it from whom he obtains it, and is bound to accept it according to that right; and if that other person has but a chattel interest under a disseisor, the person entering can have no more than a chattel interest; and that, because according to the expression in the books, it was his folly to take possession in such manner, instead of recovering it by lawful means (1); and if the person having the mere right obtain posses

(h) 2 Sch. & Lef. 98; Cowp. 689.

(i) Saunders v. Lord Annesley, 2 Sch. & Lef. 73; Att.- Gen. v. Lord Hotham, 1 Turn. & R. 210; Archbold v. Scully, 9 H. L.

C. 360; Beere v. Fleming, 11 L.
T. R., N. S. 49.

(k) Doe d. Colclough v. Hulse, 3 B. & C. 757.

(1) 2 Sch. & Lef. 103.

sion by contract or agreement with the person in possession, he never can be remitted to his mere right, but must hold the possession accordingly (0).

-or under an instrument, in

The same principle applies where persons acquire possession under a will (p), even when it is inope- dependent of rative to pass the property (q), or claiming less than contract. the entire estate (r), or stating in instruments the character and title under which they have and have had possession (s); and where the circumstances are such that the law does not acknowledge the right of remitter (t), and also all those who claim under such persons (u). So, any person claiming under an instrument which shows the claim to be under another person, makes, by such instrument, a direct acknowledgment of the title of such other person (x).

The possession of a tenant for years or at will (y) When possesis the possession of the lessor and of his heir, even be- sion of tenant

possession of fore entry or receipt of rent (z); and the seisin or pos- landlord, and session, in fact (a), of such lessor and heir, but only of not. the freehold, for the actual possession is in the tenant (b). But the possession of a lessee for life is not the possession of the heir of the lessor without receipt of rent (c).

The mere nonpayment, or the payment to a stranger, Effect of nonof the rent reserved by a lease, either during a part(d), payment to a

(0) 2 Sch. & Lef. 98.

(p) Asher v. Whitlocke, L. R., 2 Q. B. 1.

(g) Kernoghan v. M'Nally, 12 Ir. Eq. Rep. 39; Scott v. Scott, 4 H. L. C. 1065. In the last case, also reported 18 Jur. 755, 23 L. T. R. 27, the words "against the tenant for life," 4 H. L. C. 1083, are not in the other reports, and appear not to be warranted by the context, and probably were not used by the distinguished judge to whom they are attributed.

(r) Litt. s. 695; 5 Curt. Amer. Rep. 224.

(s) 1 Swanst. 359; Jac. 505. (t) 2 Sch. & L. 109.

(u) Ib. 97, 98; Hawksbee v. Hawksbee, 11 Hare, 230.

26.

(x) Lewis v. Thomas, 3 Hare,

(y) Doe d. Warren v. Fearnside, 1 Wils. 176.

(z) 1Inst. 157; Gilb. Ten. 158; Goodtitle v. Newman, 3 Wils. 516; 1 Jo. & La T. 76; Bushby v. Dixon, 3 B. & C. 299; Co. Litt. 15 a.

(a) Co. Litt. 243, a.

(b) Plowd. 162; Co. Litt. 263 a; Berry v. White, Bridg. 93, 495.

(c) Co. Litt. 15 a; Doe d. Barnett v. Keen, 7 T. R. 386.

(d) Doe d. Cook v. Danvers, 7 East, 319.

payment, or

stranger, of rent, before

or even during the whole of the term (ƒ), did not be3 & 4 Will. 4, fore the 3 & 4 Will. 4, c. 27, as respects the possession of the demised premises, affect the relation between the lessor and the lessee.

c. 27.

Since, in cases

lord and te

nant;

Important alterations, however, as between landlord between land- and tenant have been made by the legislature, and now, in some cases, a tenant may acquire a title, against his landlord, and in one case a third person may acquire a title to property comprised in a lease, notwithstanding the lease, and exclude wholly or partially during its continuance the title of the lessor to the reversion on the expiration of the lease.

-tenancy at will;

-from year to year;

In the case of a tenancy at will, the tenancy, as between the parties to it, is determined at the end of one year after the commencement, and the right of the landlord to the possession accrues, and time commences displacing his title from that period, and giving to the tenant continuing in possession for twenty years after such determination a title against his landlord (g).

In the case of a tenancy from year to year or other period without any lease in writing, the tenancy, as between the parties to it, is determined at the expiration of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy has been received, which may last happen, and the right of the landlord to the possession accrues, and time commences displacing his title from that period, and giving to the tenant continuing in possession for twenty years after such determination a title against his landlord (h).

(f) Saunders v. Lord Annesley, 2 Sch. & Lef. 106, 633.

(g) See 3 & 4 Will. 4, c. 27, ss. 2, 7; Doe d. Thompson v. Thompson, 6 Ad. & E. 721; Doe d. Bennett v. Turner, 7 Mee. & W. 226; 9 Ib. 643; Doe d. Stanway v. Rock, 4 Man. & G. 30; Doe d. Robinson v. Hinde, 2 Moo. & Rob. 441; Doe d. Evans

v. Page, 5 Q. B. 767; Doe d. Dayman v. Moore, 15 L. J., Q. B. 324; Doe d. Groves v. Groves, 16 Ib., Q. B. 297; Randall v. Stevens, 23 Ib., Q. B. 37; Doe d. Goody v. Carter, 18 Ib., Q. B. 305, Doe v. Cox, 11 Q. B. 123; Doe v. Bold, Ib. 127; 9 H. L. C. 375, 386.

(h) See 3 & 4 Will. 4, c. 27,

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