in tail might lawfully have barred.

any

When a tenant in tail of land or rent, entitled to recover the same, shall have died (r) before the expiration of the period before limited, which shall be applicable in such case, for making an entry, &c., no person claiming any estate, interest, or right, which such tenant in tail might lawfully have barred, shall make an entry or distress, or bring an action to recover such land or rent, but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress, or brought such action. When a tenant (s) in tail of any land or rent shall have made an assurance thereof, which shall not operate to bar an estate to take effect after or in defeasance of his estate tail, and any person shall, by virtue of such assurance, at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in receipt of such rent, and the same person, or any other person (other than some person entitled to such possession or receipt in respect of an estate, which shall have taken effect after or in defeasance of the estate tail), shall continue or be in such possession or receipt for the period of twenty years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail, if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of twenty years, such assurance shall be, and be deemed to have been, effectual as against any person claiming any estate, interest, or right, to take effect after or in defeasance of such estate tail.

When a mortgagee (t) shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage, but within twenty years next after the time at which the mortgagee obtained such possession or receipt, unless in the mean time an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor, or person, in writing, signed by the mortgagee, or the person claiming through him; and in such case no such suit shall be brought, but within twenty years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual, as if the same had been given to all such mortgagors or persons; but where there shall be

more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money, or land, or rent, by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage, as against the person or persons entitled to any other undivided or divided part of the money, or land, or rent; and where such of the mortgagees or persons aforesaid, as shall have given such acknowledgment, shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgaged [Sic] money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent, on payment, with interest, of the part of the mortgage money, which shall bear the same proportion to the whole of the mortgage money, as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. By stat. 7 Will. IV. & 1 Vict. c. 28, reciting that doubts had been entertained as to the effect of the foregoing act, so far as the same related to mortgages (u), and that it was expedient that such doubts should be removed, it is declared and enacted, that any person entitled to or claiming under any mortgage of land, within the definition contained in the first section of the act, may make an entry or bring an action at law or suit in equity, to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit shall have first accrued.

Any archbishop (x), &c. may make an entry, &c. within such period as hereinafter is mentioned, next after the time at which the right of such corporation sole, or of his predecessor, to make such entry, &c. shall first have accrued, (that is to say,) the period during which two persons in succession shall have held the office or benefice, in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the times of such two incumbencies, and such term of six years, taken together, shall amount to sixty years; and if such times, taken together, shall not amount to sixty years, then during such further number of years, in addition to such six years, as will, with

(u) See Doe d. Jones v. Williams, 5 A. (a) 3 & 4 W. IV. c. 27, s. 29.

& E. 291.

the time of the holding of such two persons, and such six years, make up sixty years; and after the 31st December, 1833, no such entry, &c. shall be made or brought at any time beyond the determination of such period.

At the determination (y) of the period limited to any person for making an entry, or distress, or bringing any writ of quare impedit, or other action or suit, the right and title of such person to the land, &c. for the recovery whereof such entry, &c. might have been made or brought within such period, shall be extinguished.

By sect. 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 the profits of the land for the purposes of this act.

By stat. 3 & 4 Will. IV. c. 106, s. 2, descent shall be traced from the purchaser; and the person last entitled to the land shall, for the purposes of this act, be considered to have been the purchaser, unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and in like manner, the last person from whom the land shall be proved to have been inherited, shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same.

Where land (2) descends to the son of an illegitimate father, who is proved to have been the purchaser thereof, and the son dies seised and intestate and without issue, such land does not devolve on the heir ex parte maternâ, but escheats to the crown.

By section 3 of this act, when land shall have been devised by any testator who shall die after the 31st December, 1833, to the heir, or to the person who shall be the heir of such testator, such heir shall take as a devisee, and not by descent; and when land shall have been limited by any assurance executed after the 31st December, 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and not to be entitled thereto as his former estate, or part thereof.

By sect. 4, when any person shall have acquired any land by purchase, under a limitation to the heirs, or to the heirs of the body of any of his ancestors, contained in an assurance executed after the 31st December, 1833, or under a limitation to the heirs, or to the heirs of the body of any of his ancestors, or under any limitation having the like effect, contained in a will of any testator who shall

die after the 31st December, 1833, such land shall descend and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land.

By sect. 5, no brother or sister shall inherit immediately from brother or sister, but every descent from a brother or sister shall be traced through the parent.

By sect. 6, every lineal ancestor is made capable of being heir to any of his issue; and where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor, so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue other than a nearer lineal ancestor or his issue.

By sect. 7 & 8, it is declared that the male line is to be preferred, and the mother of the more remote male paternal ancestor to be preferred to the mother of the less remote.

By sect. 9, persons of the half blood are made capable of inheriting; those of the half blood on the part of the male ancestor to inherit next after the relation in the same degree of the whole blood and his issue; and those of the half blood on the part of a female ancestor next after such female ancestor.

By sect. 10, where a person through whom a descent is to be traced shall have been attainted, and died before such descent shall have taken place, the attainder shall not prevent the heir from inheriting, unless the land shall have escheated in consequence of such attainder, before the 1st January, 1834.

The act does not extend (a) to any descent which takes place on the death of any person who died before the 1st January, 1834; and where (b) the heir or heirs of any person take an estate by purchase, under an assurance executed before the 1st January, 1834, or a will of any testator dying before the same day, such heir or heirs will be determined by the old law, whether the person named as the ancestor shall be living or not on the 1st January, 1834.

XI. Evidence.

Evidence on the Part of the Lessor of the Plaintiff.—The evidence required to support an ejectment will vary according to the title of the lessor of the plaintiff.

Possession is primâ facie evidence of seisin in fee simple: the declaration of a deceased possessor that he was tenant to another, (a) Sect. 11. (b) Sect. 12.

makes most strongly against his own interest, and consequently is admissible (c). So the admission of a deceased person in receipt of the rent, that he held under another, whether as tenant by sufferance, or as receiver of the rents, is evidence (d) that he himself was not the owner of the legal estate. In order to prove that the land for which ejectment was brought was part of the estate of an ancestor of the lessor of the plaintiff, the counterpart of a lease purporting to demise the land in question, which was dated in the lifetime of the ancestor, and apparently executed by the lessee but by no one else was produced from the muniment-room of the ancestor. The evidence was holden (e) admissible, although no reason was given for the non-production of the lease itself, and no privity was shown to exist between the lessee and the defendant in ejectment. It is not competent to a party, who has taken under a deed all the interest which that deed was calculated to give, to dispute its execution (f). In the same case, which was an action by the lessee against the assignee of a lease, the plaintiff having proved the delivery of the original lease to the defendant, and the execution of the counterpart, the defendant put in the original lease, which was produced by a party, to whom defendant had assigned it by a deed reciting the lease; it was holden, that it was not necessary for the plaintiff to call the subscribing witness to prove the execution of the lease.

Devisee of a Term.-Where the lessor of the plaintiff is devisee of a term, he must produce in evidence the probate of the will, and prove the assent of the executor to the devise (g); for where a person devises, either specially or generally, goods or chattels, real or personal, and dies, the devisee cannot take them without the assent of the executor. Lessee for years devised the term to his executor for life (h), paying 50l. to J. S., remainder to the lessor of the plaintiff. The executor dying, his executrix entered upon the residue of the lease, and possessed herself of the term. An ejectment having been brought it was holden, that the executor took as executor, and not as legatee; and then the remainder over was not executed, and that it was incumbent on the remainderman to prove a special assent thereto, as to a legacy; whereupon plaintiff proved payment of the 50l.; and that was holden to be a sufficient assent, and the plaintiff recovered. To prove the title of a lessor of the plaintiff in ejectment, claiming as executor, the will was produced from the registrar's office, with a memorandum at the foot of it, signed by the surrogate, that the executor had proved the will, and that the probate had been sealed. The probate was not produced or accounted for; but it was proved that such a memo

(c) Peaceable v. Watson, 4 Taunt. 16, recognized in Carne v. Nicoll, Trial at Bar on writ of right, 1 Bingh. N. C. 430; Gow's N. P. C. 227, S. P.

(d) Doe d. Daniel v. Coulthred, 7 A. & E. 239.

(e) Doe d. Earl of Egremont v. Pulmer, 3 Q. B. 622.

Burnett v. Lynch, 5 B. & C. 589.

(g) 1 Inst. 111, a.

(h) Young v. Holmes, Str. 70.