This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The nature of the title acquired.
(q) 1912, 2 Ch. p. 9. (r) P. 17.
(s) (1843) 3 Dr. & War. 388. (t) (1892) 67 L. T. 735.
(u) Rankin v. Mcmurtry, (1889) 24 L. R. Ir. at p. 297, per Johnson, J.
(x) Boiling v. Hobday, (1882) 31 W. R. 9; Hewitt on Limitation of Actions, 192.
(y) Doe v. Jauncey, (1837) 8 C. & P. 99, 102; Asher v. Whitloek, (1865) L. R. 1 Q. B. 1, 3; 35 L. J. Q. B. 17; Hewitt on Limitation of Actions, 161.
(z) Doe v. Dyeball, (1829) M. & M. 346; 3 C. & P. 610.
In order that the title of the true owner may be barred by the adverse possession of a trespasser or a series of trespassers (a) the possession by them must be continuous (b), and so long as it is continuous it is immaterial whether they claim through one another or independently (c); but if a period of time should elapse, however short, after the abandonment of one trespasser who has not been in for the full statutory period and the entry of another the title of the true owner is, as from the time of such abandonment, restored to him without any entry or act done on his part, for the statute does not apply to a case of a want of actual possession by the true owner, hut only to cases where the owner is out of possession and another is in possession (d).
Possession must be continuous.
In Asher v. Whitlock (g), A., who enclosed land in 1842, and other adjoining land in 1850, remained in possession until 1860 and then died, having devised the whole to his wife during her widowhood, with remainder to his daughter in fee; the widow in 1861 married B., who went to reside on the property with the mother and daughter; the daughter died in 1863 an infant, and her mother shortly afterwards in the same year. The daughter's heir-at-law brought ejectment against B., who continued to occupy the property; and it was held that he was entitled to recover possession, on the ground that A.'s title, being that of a disseisor, was good as against all the world except the disseisee, and that his daughter taking by devise from him, and her heir, were in a like position, and could bring ejectment against anyone who dispossessed them. The disseisor's title, then, being good as against all the world except the disseisee (h), he can recover possession from anyone who dispossesses him or takes possession of the land which he has acquired as disseisor, until his own title is barred by the lapse of the statutory period from his evacuation of the property.
(a) See Real Property Limitation Act, 1833, ss. 2 and 34; and see Dixon v. Gayfere, (1853) 17 Beav. 421.
(b) Trustees, Executors and Agency Co. v. Short, (1888) 13 A. C. 793; 58 L. J. P. C. 4.
(c) Willis v. Earl Howe, 1893, 2 Ch. 545, 553; 62 L. J. Ch. 690; but see Hawksbee v. H., (1853) 11 Ha. 230; Holmes v. Newlands, (1839) 11 A. & E. 44; Newlands v. Holmes, (1842) 3 Q. B. 679; Doe v. Barnard, (1849) 13 Q. B. 945; 18 L. J. Q. B. 945.
(d) Trustees, Executors and Agency Co. v. Short, sup.; and see Soiling v: Broughton, 1893, A. C. 556; 63 L. J. P. C. 21.
(e) Hewitt on Limitations, 160.
(f) Doe d. Carter v. Barnard, (1849) 13 Q. B. 945. Cf. Johnson v. Brock, 1907, 2 Ch. p. 538.
(g) (1865) L. E. 1 Q. B. 1; 35 L. J. Q. B. 17; and see Soiling v. Broughton, 1893, A. C. 556; Perry v. Clissold, 1907, A. C. 73.
Where possession is held against the true owner by a succession of different persons, not claiming under one another, but as independent trespassers, the party in possession when the twelve years have elapsed would be entitled to hold, except as against the prior trespassers. But the original trespasser would have the right, it seems, to recover possession at any time within twelve years after the second trespasser's entry (e). In like manner, the second trespasser, on being ejected by a stranger, could recover possession, unless it appeared in proof that the title was in another, namely in the prior trespasser (f). After twelve years from his own entry the second trespasser would have a good title against all parties.
Conclusion drawn from the cases.
Where a person enters into possession of property as a limited owner under a will invalid for want of title in the testator and acquires a good possessory title against the true owner, such person is estopped from denying the title of the testator so as to convert his limited interest into a fee simple (i); and the same principle applies whether possession is taken under a will or any other instrument (k). But a distinction has been taken between cases where, in a will validly executed by a competent testator, property to which the testator has no title has been devised to one for life with remainders over - to which class of cases Board v. Board applies - and cases where the testator has a good title to the property, but the will is inoperative through the testator's incapacity, as in the case of a married woman under the old law making a will. In this latter class of cases the devisee for life is not estopped from setting up the Statute of Limitations against the remainderman (l).
Person entering under invalid settlement and acquiring title under the statute is estopped from denying title of settlor.
(h) Doe v. Dyeball, (1829) M. & M. 346; 3 C. & P. 610; Doc v. Barnard, (1849) 13 Q. B. 945; 18 L. J. Q. B. 306.
(i) Board v. B., (1873) L. R. 9 Q. B. 48; 43 L. J. Q. B. 4; but see Paine v. Jones, (1874) 18 Eq. 320; 43 L. J. Ch. 787.
(k) Dalion v. Fitzgerald, 1897, 2 Ch. 95; 66 L. J. Ch. 604.
Bent - in the sense of rent-charge, not rent payable under a lease - is extinguished by its non-payment during the statutory period; and time runs from the last actual receipt (m). But where the ownership of land, subject to a rent, becomes severed, payment of such rent by the owner of any portion of the property will prevent the statute from running in favour of the owners of the residue (n). So long as the owner of the rent receives it out of any portion of land charged with its payment, there is no dispiosses-sion to create a bar under the statute; and he may distrain on any portion of the land, notwithstanding that the owner or occupier of that portion has not paid the rent for more than the statutory period (o). But the same rule does not apply to the payment of interest upon gross charges. Thus, if a testator charges his estate with a sum of money, and devises it in several portions to different devisees, payment of the interest by any one of them will not, it seems, prevent the statute running in favour of the others (p).