#### ***George W. Wallingford *versus*John Hearl.

Tenant for life is disseised, and the disseisor and his heirs continue in possession forty years, and until the death of tenant for life; it was held that the rever sioner’s right of entry commenced at the death of tenant for life.

This was a writ of *entry sur disseisin,*in which the said *Walling-ford*demands seisin and possession of three thirteenth parts, and one third and one fourth of a thirteenth part, of a certain tract of land described in his writ, and counts upon his own seisin, and a disseisin by the said *Hearl,*within thirty years before the date of the writ.

At the trial, which was had at *Alfred,*October term, 1817, before *Wilde,*J., the demandant proved that his grandfather, in the year 1770, was seised of the demanded premises in his demesne as of fee, and died so seised. Whereupon his estate was divided among his heirs, and on such division the demanded premises were assigned to his widow, as her dower; and she entered and took possession, and- the demandant became entitled, partly by descent and partly by purchase, to the reversion of the same. The said dowager died in the year 1810; and the demandant, in 1811, entered into the demanded premises, and took possession of the same.

The tenant proved that his grandfather entered into the demanded premises nearly forty years since; and that, for more than thirty years' before the entry by the demandant, the tenant’s said grandfather, his father, and he, the said tenant, had been in the quiet possession of the same, claiming to hold it in their own right; and that the same, during the whole time aforesaid, had been enclosed within fences.

On this evidence, the tenant contended that such possession was sufficient to bar the present action, and that the demandant, in the •year 1811, had no right of entry. But the judge instructed the jury that the said possession, by the tenant and his ancestors, did not bar the right of entry by the reversioner, after the termination .of the life estate; and they accordingly returned a verdict for the demandant. If the said direction to the jury was substantially correct, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside, and a new trial had.

* *Holmes,*for the tenant,

relied on the statute for the limitation of real actions, (1) which limits the right oi *419entry to twenty years, and, in cases of infancy, &c., to ten years after the disability removed; and he contended that the reversioner, or he in remainder, may enter on a disseisor during the continuance of the particular estate. The duty of the dowager was only to preserve her life estate; while the reversioner has a right to enter to preserve his inheritance against a stranger. Thus, if one cuts down timber trees, or digs mines, &c., which belong not to the dowager, it is the right and duty of him in reversion or remainder to avail himself of the forfeiture. After entry by him, the disseisor could make no defence against his action, on the ground that the particular estate was yet in being. (2)

*Wallingford, pro se.*

Possession, to be a bar within the statute, must be adversary to him who has the right of possession. (3)

One may have different rights of entry, (4) and although, perhaps, the demandant, in this case, might have entered upon the disseisor of the dowager, yet he was not obliged to avail himself of that right; and his neglect of it did not lessen his right to enter on the dowager’s death. It was not in his power to know that the tenant in possession was not the lessee of the dowager, or otherwise in by her license.

(1)

*Stat.*1786, c. 12.

(2)

*Co. Lit.*49, 119, b, 241, a. — *Plowd.*35. — 1 *Lev.*21.—3 *Salk.*31, 430. — 4 *Johns.*390. —7 *East,*399.

(3)

 3 *Black. Comm.*156. — 4 *Co.*11, b.

(4)

9 *Mass. Rep.*508, *Wells vs. Prince.*— See also 4 *Mass. Rep.*64. [S. C. *Parsons*vs. Welles.]

Parker, C. J.

The demandant’s right of entry accrued on the death of the tenant for life; and he had twenty years, by the statute, to preserve his estate by entry. He entered, in fact, within one year after his title accrued, that is, after the termination of the life estate. It is said that he might have entered before, in consequence of the disseisin of the tenant for life. If he might, the law imposed no obligation upon him to do so. He might be utterly ignorant of the disseisin, notwithstanding the visible occupation of the disseisor; for he might well suppose that the tenant had entered under a contract with her who was seised of the freehold. It is settled, in the case of *Wells*vs. *Prince,*9 *Mass. R. **508, that, although the reversioner may enter before the death of the tenant for life, if she refuse to enter, yet that he may waive that right, and enter after her death. That case is the same in principle with the one before us; and the decision is supported by authorities, although none are cited in support of it. If tenant for life acknowledge a fine for a longer time than for the life of the tenant for life, the fine may be good; but it is a forfeiture of the estate, and he in reversion or remainder may enter. Yet he is not *420obliged so to do; for he may wait the termination of the estate for life, and has five years after that. (5) *(a)*

*Judgment on the verdict.*

(5) (a)

*Shep. Touch.*14. — *Jenk. Cent.*254. (a) *Jackson vs. Schoonmaker, 4 Johns.*380. — *Jackson*vs. *Sellick, 8 Johns.*262.— *Jackson vs. Johnson,*5 *Cowen, 74.*— *Stevens & Ux.*vs. *Winship & Ux.*1 *Pick.*327. — *Doe*vs. *Danvers, 7 East,*321. — *Blanchard on Limitations,*p. 14 — *Whaley*vs. *Tan cred, T. Ray.*219. — *Hunt*vs. *Burn,*2 *Salk.*422.—2 *Lew.*52. — 1 *Vent.*241.— Mi *Roscoe*says, “ Whether the statute of limitations will run against the reversioner upon the adverse possession gained by a disseisor who has entered and ousted the tenant for years, and disseised the reversioner, or whether the reversioner may enter within twenty years, after the expiration of the term, is a point .which does not appear to have been decided. A distinction is taken, by Sir *Edward Coke,*(note to *Margaret Podger’s*case, 9 *Rep.*1056, and per *Catline,*J., 1 *Plow. Com.*374,) between the case of a feoffment made by a termor and a fine levied by him, in which case the reversioner has five years after the expiration of the term, as well as after the fine levied, and the case of a disseisin committed by a stranger to land in the possession of a termor, which operates as an ouster of the termor, and a disseisin of the reversioner; such disseisin of a stranger, according to Sir *Edward Coke,*bars both the lessee and lessor after five years from the fine levied, and the latter cannot enter within five years after the term ended. This distinction,” says Mr. *Roscoe,*“ which appears to be grounded on the absence of that privity between the stranger disseisor and the reversioner which, in the case of a fine levied after a feoffment by a tenant for years, prevents the latter, who is intrusted with the possession of the land, from immediately barring the reversioner by his own wrongful act, and taking advantage of his own forfeiture, has never, as it seems, been expressly overruled, *(Jenk. Cent. cas.*254. — *Shep. Touch.*29. — *Woods, Inst.*248. — 2 *Saund. Us. and Trusts,*24. — *Dighton*vs. Grenvill, 2 *Vent.*334. — 1 *Prest. Com.*237,) though Mr. *Preston*seems to deny the distinction.”

*Roscoe on Real Motions,*pp. 498, 505, 506, 507.