ing from the surrounding circumstances. If, therefore, a person is shown to be in receipt of rent, he is presumed to be entitled to the reversion in fee of the land in respect of which the rent is received, unless the rent is so disproportioned to the annual value of the property, as to lead to the presumption of its being a mere quit rent. (e) Thus, in an action on the case for an injury to the plaintiff's reversion in cutting down trees on land in the possession of his tenant, proof of payment of rent by the latter to the plaintiff is primâ facie evidence of the plaintiff being the reversioner, and of the trees being his property. (f) 387. Trial of title in an action of trespass.--If the defendant, in an action for a trespass committed by him upon the land or messuage of the plaintiff, pleads that the close or land in which the trespass was committed was the soil and freehold of the defendant, the plaintiff's title to the property is in issue, and also his right of possession, and the defendant may, under this plea, bring forward evidence to show that he had a right to enter upon the close because it was his freehold, or because it has been demised to him, or because he has obtained an indefeasable title under the statute for the limitation of actions and suits relating to real property. (g)' 388. Title to reality from twenty years' possession.- By 3 & 4 Wm. 4, c. 27, s. 2, entitled "An Act for the Limitation of Actions and Suits relating to Real Property," it is enacted, that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or, if such right shall (e) Doe v. Johnson, Gow. 173. Reynolds v. Reynolds, 12 Ir. Eq. Rep. 181. (†) Daintry v. Brocklehurst, 3 Exch. 209. (g) As to the registration of title to real estate, see 25 & 26 Vict. c. 53. In an action to try titles it is incumbent on the plaintiff to show title in himself either by grants or possession; Young v. Watson, 1 McMullan ( ) 449; Williamson v. Robertson, 2 Brev. (S. C.) 201; and the declaration must describe the lands with such certainty that the defendant may know what he is to defend against; Sturdevant v. Muriell, 8 Port. (Ala.) 317; but it may be set up in the usual form of trespass quare clausum, setting forth that the object of the action is to try title to the land or to recover the possession thereof. Carmile v. Hause, 6 Ala. 710; Thrash v. Johnson, 6 Port. (Ala.) 458. not have accrued to some person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. (h) Where the person really entitled to an estate is in possession, but as agent for another, to whom he, under a mistake, accounts for the rents, he has no right of entry without giving up his agency; the person in receipt of the rents, therefore, may acquire a title by long possession as against him. (1) An encroachment made by a tenant is made for the benefit of his landlord, and the statute, therefore, does not apply to the land enclosed till the termination of the tenant's interest. (j) 389. Accrual of the right on dispossession or discontinuance of possession. When the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession or receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, then the right is to be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any profit or rent was so received. 390. What is a dispossession-Discontinuance of possession.— The word discontinuance of possession means an abandonment of possession by one person, followed by the actual possession of another person; for if no one succeed to the possession vacated or abandoned, there could be no one in whose favor, or for whose protection, the act would operate. To constitute discontinuance, there must be both dereliction by the person who has the right and actual possession, whether adverse or not, to be protected. (k) Therefore, where the owner of the fee simple of a close, with a stratum of coal and other minerals under it, has conveyed the surface to one under whom the plaintiff claims, reserving the minerals and a right of entry to get them to another, under whom the defendant claims, the title and right of entry of the grantees of the mines is not barred by simple non-user for more than forty years, no () Brassington v. Llewellyn, 27 Law J., Exch. 297. (i) Williams v. Pott, L. R., 12 Eq. Ca. 149. () Whitmore v. Humphries, L. R., 7 C. P. I. (k) Blackburne, C. J., M'Donnell v. M'Kinty, to Irish Law Rep. 516. other person having worked or been in possession of the mines. ( 391. Occupation by poor relations and servants--The possession of the servant the possession of the master.-A landowner who accommodates a poor relation with a cottage and garden, does not necessarily part with the possession of the property occupied by such poor relation. The latter may have the mere custody of the property; his possession, such as it is, may be the possession of the landowner; and the latter may retain and continue to exercise his proprietary and possessory rights so as to rebut the presumption that he has parted with the possession of the property, and prevent the operation of the Statute of Limitations. (1) If a landowner allows his gardener, or servant, or workman employed upon his estate, to live in a cottage thereon rent-free, the possession of the servant is the possession of the master, and the servant has no greater interest in the land than a coachman who occupies part of his master's coach-house, or sleeps over his master's stables; and no title can be gained by such an occupation and enjoyment of the master's property, however long it may be continued. And if a landowner, from motives of kindness or charity, allows a dependent, relative, or friend to occupy a cottage and land upon his estate, and the landowner, during such occupation, continues to exercise acts of ownership over the land so occupied; if he repairs the buildings, cuts down or plants trees, or causes drains to be made through the land, or quarries and carries away stone, all these acts of dominion exercised by him over his own property show that he has never parted with the possession of it, although he has allowed another person to occupy it, and share with him in the use and enjoyment thereof. (2) A society, also, which allows its agent to live on its premises rent-free does not confer any estate or interest in the land upon the latter, but the occupation is merely the Occupation of a servant. (0) 392. Accrual of the right on death, alienation, forfeiture, &c. Provision is also made (s. 3) for the accrual of the right, and () Smith v. Lloyd, 23 Law J., Exch. 1949 Exch. 571. (m) Bertie v. Beaumont, 16 East, 33. Hunt v. Colson, 3 M. & Sc. 791. Doe v. Stanton, 2 B. & Ald. 371. Mayhew v. Suttle, El. & Bl. 353. (2) Turner v. Doe, 9 M. & W. 645. (0) White v. Bailey, 10 C. B., N. S. 227; 30 Law J., C. P. 253. the commencement of the period of limitation when the person claiming the land or rent claims the estate or interest of some deceased person who continued in possession or receipt of the profits of the land or rent in respect of the same estate or interest until the time of his death, and was the last person entitled to the estate or interest in such possession or receipt; lso when such person claims in respect of an estate or interest in possession granted, or assured, by any instrument other than a will to him, or some other person through whom he claims, by a person, being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in receipt. of the rent, and no person entitled under such instrument has been in possession or receipt; also when the estate or interest claimed has been an estate or interest in reversion or remainder, or other future estate or interest, and no person has obtained possession or receipt of the profits of the land or the receipt of rent in respect of such estate or interest; also when the claimant, or the person through whom he claims, has become entitled by reason of any forfeiture, or breach of condition. Provision is made (ss. 4, 5) for giving new rights of entry, &c., to remaindermen and reversioners in certain contingencies. 393. Conversion of defeasible tenancies-at-will into an indefeasible title--Possession of land by a cestui que trust.—When any person is in possession or receipt of the profits of land or rent as tenant-at-will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or bring an action to recover such land or rent, is to be deemed (s. 7) to have first accrued either at the determination of such tenancy or at the expiration of one year next after the commencement thereof, at which time such tenancy shall be deemed to have determined. (p) But it is provided that no mortgagor or cestui que trust shall be deemed to be a tenant-at-will to his mortgagee or trustee within the meaning of that clause. (9) This proviso is applicable only to cases of express and declared trusts; (r) so that a person let into possession of and holding lands under an agreement to purchase, (p) Doe v. Moore, 9 Q. B. 561. Day v. Day, L. R., P. C. Ca. 751. (9) See Thorp v. Facey, post. See (r) Drummond v. Sant, L. R., 6 Q B. 703.. is not a cestui que trust within this proviso. (s) A cestui que trust may, in a certain sense, be tenant-at-will to his trustee, if he has been let into possession of the trust estate by the latter, although he is not a tenant-at-will capable of acquiring a title by reason of his possession, within the third section of the statute. The possession of the cestui qui trust is, in fact, the possession of the trustee, and the time of limitation will not run against the latter, so long as the relationship of trustee and cestui que trust subsists. (t) But this applies only to the case where the cestui que trust is the actual occupant. If he is merely allowed to receive the rents or otherwise deal with the estate in the hands of the occupying tenants, he stands in the rela tion only of an agent or bailiff of the trustees, who choose to allow him to act for them in the management of the estate; and if the actual occupier is, under such circumstances, permitted to occupy for more than the twenty years prescribed by the statute, without paying rent, the trustees lose their titlę and the actual occupier gains the title exactly as in an ordinary case of landlord and tenant. (u) But if the cestui que trust has been let into possession by the trustees, the tenancy between him and his trustees will not be determined by his underletting the premises, unless the trustees have notice of such underletting; for though the general rule is that a tenancy-atwill is not assignable, because the transfer determines the tenancy, yet the rule is subject to the qualification that a tenantat-will can not at common law determine his tenancy by transferring his interest to a third party, without notice to his andlord. (x) 394. Title of bona-fide purchasers of trust estates. When any land is vested in a trustee upon any express trust, the right of the cestui que trust, or any person claiming through him to bring a suit against the trustee, or any person claiming through him, to recover such land, is (s. 25) to be deemed to have first accrued at, and not before, the time at which such land shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only (s) Doe v. Rock, 4 M. & Gr. 31. (t) Garrard v. Tuck, 8 C. B. 252; 18 L. J., C. P. 338. Drummond v. Sant, supra. () Melling v. Leak, 16 C. B. 669; 24 Law J., C. P. 187. Doe v. Phillips, 10 (x) Carpenter v. Collins, Yelv. 73. Pinhorn v. Souster, 8 Exch. 763. Melling v. Leak, 16 C. B. 669. |