Under this statute, the adverse occupancy of the land does not create a right or title in the occupier, but acts as a bar to the remedy of the original owner, who, after twenty years’ loss of possession, cannot set up his title against the occupier. This statute, like that of 32 Hen. VIII. c. 2, which it followed, did not run from the time when the defendant’s possession was acquired, but from the time when the plaintiff’s possession was lost. The statute looked not at the defendant’s possession, but at the plaintiff’s want of possession.
It would follow from this construction of the statute, although contrary to received opinion, that in the case under discussion, to bar this remedy of the original owner, B, the second disseisor, C, can tack his time to that of his disseisee, A, although he does not represent the same persona or estate. No privity of estate or derivation of titles is necessary between the successive adverse occupants. The only essential is that the original owner shall have been kept out of possession the limited time. At the end of that time, the person in possession can plead the Statute of Limitations as defence in an action of ejectment.
This view is supported by the following decisions: Fanning v. Willcox, Shannon v. Kinny, and Hord v. Walton. It is also supported by the dicta of Patteson, J., in Doe d. Carter v. Barnard, and of Sir John Romilly, M.R., in Dixon v. Gayfere. Smith v. Chapin holds that the possession of the successive trespassers must be “connected and continuous,” although no privity of estate need be shown between them.
A distinction must, however, be noted between the older form of the Statute of Limitations, as generally followed in this country, and the more recent statues of 3 and 4 Wm. IV. c. 27, which has been followed in some of the more modern American statutes. This statute provides [S. 34] that when an owner’s right of entry and right of action have been lost by the operation of the statute, his title also shall be extinguished. This has been assumed by the Courts to mean that the title of the owner out of possession shall be transferred to the person in possession. Under such construction of the statute, by which it absolutely passes the title to the land, the same line of reasoning would apply as to the acquiring title to an easement by prescription. A disseisor should not be allowed to tack his time to that of his disseisee in order to gain such title to the land.
In the cases of Dixon v. Gayfere and Doe d. Carter v. Barnard, cited above, the Courts in applying this statute have made a distinction as to whether this last disseisor is in or out of possession, whether defendant or plaintiff. In these cases it was held that, although the last disseisor, if still in possession, could have tacked his time to that of his disseisee in order to successfully defend against an action of ejectment brought by the original owner, yet having lost the possession, he could not so tack the times in order to regain the land when it had come into the possession of the Court for settlement of title, or into the hands of a mortgagee of the original owner.
An examination of the cases cited in the reference given above from
- 3 Washburn, Real Prop. (5th ed.), 157, 176.
- 3 Day, 258.
- 1 A. K. Marsh. 3.
- 2 A. K. Marsh. 620.
- 13 Q. B. 945, at 952.
- 17 Beav. 421, at 430.
- 31 Conn. 530.