sure. He remained in possession for fifteen years more, and never paid any rent, and it was held that the possession was not necessarily adverse, but might be presumed to have commenced by permission of the lord. (a) Twenty years' adverse possession is a bar to the entry of a commoner; (b) and if he has any right, he must bring an assize of common. (c) It is usually provided by inclosure acts, that no encroachment which has existed for twenty years before the passing of the act shall be considered as part of the waste, and that no title derived by virtue of such encroachment shall be disputed. And where a person had enjoyed an encroachment forty years under such a clause, he was held absolutely entitled, notwithstanding he had subsequently accepted a grant of some adjoining land from the lord, in which grant his encroachment was described as waste. (d) It has been said, that the mere occupation of common by usurpation will not give title to him that occupies it, unless he had it time beyond memory. (e) And it must always be remembered that the lord may recover the portion of the waste in a real action within. sixty years. (ƒ) Where an inclosure had existed for thirty-five years, and an estate was sold including the encroachment, and the vendor represented to the purchaser (a) Doe d. Thompson v. Clark, 8 B. & C. 717. (b) Hawke v. Bacon, 2 Taunt. 156. (d) Doe v. Wright, 1 Stark. 349. (e) Toml. Law Dict. Common, III. (f) Hawke v. Bacon, 2 Taunt. (c) Creach v. Wilmot, 2 Taunt. 156. 160. that he had a good title to the whole; the purchaser having discovered the fact of the encroachment after the conveyance had been executed, filed a bill to set aside the conveyance, and for a return of the purchasemoney and all expenses; which was decreed, although no eviction had happened or had even been threatened; the Master of the Rolls observing, "though the lord may never assert his right, is the plaintiff to be compelled to remain twenty-five years longer in a state of uncertainty whether on any day during that period he may not have the convenience of his habitation entirely destroyed." (a) It is worthy of consideration, however, whether after thirty or forty years' quiet enjoyment of waste lands, a grant would not be presumed, and a title be good both in law and equity, thus acquired, if there was no payment of rent or any other circumstances to rebut the presumption. (b) Where a lessee of the lands makes an encroachment, it is doubtful whether the encroachment will belong to him personally, or, on the expiration of the lease, go over to the landlord. The landlord seems on the whole to have the better title, particularly where he was in any way a party to the encroachment. (b) The presentment of an encroachment, or inclosure from the waste, does not affect the power to make the inclosure in the least; for the only use of a present (a) Edwards v. M'Leay, Coop. 308, S. C.; 2 Swan. 287. (b) See Bryan v. Winwood, 1 Taunt. 208. Creach v. Wilmot, 2 Taunt. 160 n. Doe v. Mulliner, 1 Esp. 460. Doe d. Challoner v. Davis, 1 Esp. 461. ment by the jury at the court, of an encroachment, is for the information of the lord, that his steward may take due means to redress it by action or abatement. (a) (a) King v. Dickinson, 1 Saund. 135 a. CHAPTER XVIII. OF ABSTRACTS OF TITLE OF CONDITIONAL AND CONTINGENT ESTATES, AND INTERESTS, AND POSSIBILITIES. THIS chapter will be divided into-I. Titles of conditional estates: II. Titles of contingent estates and interests:-and III. Titles of possibilities. I. TITLES OF CONDITIONAL ESTATES. These estates are of two kinds: 1. Persons who are to take on a condition; 2dly. Persons who have an estate subject to a condition. 1st. Persons who take on a condition are persons having contingent or executory interests, which, although they cannot be conveyed at law, may be transferred in equity. (a) They are also descendible and transmissible, and may be devised or extinguished by release, or bound by estoppel. (b) (a) Wright v. Wright, 1 Ves. sen. 409. (b) Fearne, Cont. Rem. 366, 7th ed. 4 Co. 66 b. 2dly. Persons who have estates subject to a condition, may convey them, but their grantees or assignees will be subject also to the same condition, until it shall have been performed or released, or till a right of entry shall have accrued, and that right shall be barred by the statute of limitations, or by non-claim on a fine. (a) Titles of this sort are clearly defective, until the defect shall be supplied, or the right of entry or of action shall be barred by non-claim on a fine, or under the Statute of Limitations, or as to equitable interests, by the rules which courts of equity have adopted in analogy to the Statute of Limitations, or until the defect shall be removed by the release or confirmation of the person or persons in whom the right or title resides. (b) If a man alien in fee or in tail, he cannot impose any restraint upon the alienation of the grantee, or prevent his barring the estate tail, and any proviso or condition to that effect will be absolutely void; (c) but a devise in fee, subject to a condition not to alien except to a particular person, has been held good. (d) II. TITLES UNDER CONTINGENT ESTATES AND INTERESTS. Every contingent remainder or interest of freehold limited by way of remainder, may be destroyed by the surrender, merger, forfeiture, determination, or destruction of the particular estate by which it is (a) 2 Prest. Abs. 185, 186. (b) 2 Prest. Abs. 199. (c) Butl. Co. Litt. 223 b. n. (1) |