at the same rent. Joseph Wolf, who was in possession of the cottage on the said 3d of August, claimed to hold the same under the first lease, upon the ground that one of the three persons named in it was still alive, and he did so hold until his death about 23 years ago (a). On his death his widow, Ann Wolf, retained possession of the cottage, and continued in it from thence until her death in 1827. In 1826 Ann Wolf made a will, duly attested to pass real estates. She told the person who wrote it for her that she had some doubts upon it, as she had heard it belonged to Gilling. By her will, Ann Wolf devised the cottage to her daughter Martha, the wife of Richard Hooper, her heirs and assigns, and appointed her executrix and residuary legatee. No probate of the will has been obtained. She left several other daughters and some sons.

On Ann Wolf's death Richard and Martha Hooper, who had been living with her in the cottage for two years, kept possession of it and lived therein three years, when Richard Hooper conveyed it in fee by feoffment, and delivered seisin, to Emery Thomas, who is now in possession of it. Martha Hooper was no party to the deed or livery of seisin. The purchase money was 87., the premises being well worth 40l. with good title in fee. The three lives on the lease of 1732 were determined before the 3d of August 1784. One of the lives on the lease in 1784 is still undetermined. rent has ever been paid by Joseph Wolf or those claiming under him. Gilling and his representatives have paid the rent of four-pence to Lord Weymouth and his heirs

No

(a) The appeal was entered at the October sessions 1833, and heard at the following sessions. The date of the order of removal did not appear by the case.

to

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to the present time, but have never been in possession of the cottage or received any rent for the same.

The questions for the opinion of the Court, as stated by the sessions, were, "Whether Richard Hooper took such an interest or estate as would confer a settlement on him in Cheddar? and if the Court should be of opinion that he took a chattel interest under the will, then, whether the will without the probate will be sufficient evidence thereof for the purpose of proving a settlement in Cheddar?"

Bere, in support of the order of sessions. Richard Hooper was settled by an estate in fee in right of his wife; or else she entered and resided upon it as executrix, and so he became settled in her right. As to the first point, there has been an adverse possession by Wolf and those claiming under him, ever since 1784. Gilling and his representatives have paid rent during that period; but they have never had possession, nor has any person in possession paid rent or acknowledged any superior title. By the Statute of Limitations, 21 Ja. 1. c. 16. s. l., no entry is to be made into lands but within twenty years after title of entry accrued. The title of entry here accrued in 1784. The case resembles Doe dem. Forster v. Scott (a). It is true that in this case Joseph Wolf claimed, in August 1784, to hold on under the first lease, on the ground that one cestuy que vie was still alive; but that statement by him does not alter the character of his subsequent holding, which was in express opposition to the assertion of right by Lord Weymouth when he demised to Gilling. In most cases of adverse possession there is some false claim set up,

(a) 4 B. & C. 706.

as

as was done here by Wolf, to give a colour for the
holding (a). And since his death there has been a clear
adverse possession for more than twenty years: the ob-
servation of Ann Wolf at the time of making her will
cannot have any weight as an acknowledgment to the
contrary. But supposing the case of adverse possession
to fail, Ann Wolf was at any rate in possession by virtue
of some right as tenant; and Martha, her daughter, as
the executrix named in her will, and entitled to act in
that capacity, though not having taken out probate,
had such an interest as gave her, and enabled her to
communicate, a settlement. In Rex v. Horsley (b) a
sole next of kin was held to gain a settlement by re-
siding in the parish where the property lay, before taking
out administration; and Lord Ellenborough there relied
upon the party's having had "the exclusive right to
enforce the proper means of acquiring a legal title to the
property." That exclusive right existed here. Rex v.
Stone (c), and the Anonymous Case in Dyer (d) there cited
by Lawrence J., shew that a term devised vests in the
executor before probate: and in Rex v. Thruscross (e),
Littledale J. held that " an occupier who, by doing an act
which he might at any time do, could have obtained the
legal estate," gained a settlement by residence on the
property. There are many things which an executor may
do in that character, before probate. The smallness of
the purchase money received by Richard Hooper does
not shew that he was without title; if he had not some
right, it cannot be supposed that he would have ob-
tained 81. for the premises.

(a) See 9 Vin. Abr. Disseisin (I.), pp. 105, 106.
(b) 8 East, 405.

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(c) 6 T. R. 295.

(d) Anonymous, Dyer, 367 a.

(e) 1 A. & E. 131.

Rogers

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Rogers and Moody, contrà. It is stated in this case, that in 1784 Joseph Wolf claimed to hold, that is, he continued to claim possession, under the lease of 1732, because one of the lives, as he said, was unexpired. His occupation, therefore, is traced to a right claimed under Lord Weymouth, and so consistent with that relied upon by the respondents. Where the original possession is accounted for, the usual presumption of a grant from long enjoyment does not arise; Doe dem. Fenwick v. Reed (a); and while there subsists any contract, express or implied, between the parties in and out of possession, the possession cannot be adverse; Burton's Compendium of the Law of Real Property, p. 146. 3d edit. To make an adverse possession there should be a tortious ouster; Bull, N. P. 104.; Bryan dem. Child v. Winwood (b). The case here does not shew any assertion of title by Joseph Wolf, as against Lord Weymouth. Then if Ann Wolf, his widow, came in under her husband's presumed right (c), and upon the supposition of a term still continuing, the principles already stated apply to her possession as well as the husband's, until 1826, when the first act of adverse ownership was attempted by her devising the premises in fee. But even that was accompanied by a declaration that she had heard the property belonged to Gilling; whereas, to make a complete adverse possession, there should be an unqualified assertion of right. Her declaration was evidence to negative adverse possession; Doe dem. Human v. Pettet (d). If, (a) 5 B. & Ald. 232. (c) If the result of the facts stated in the case was that Joseph Wolf held from August 1784 as tenant by sufferance, it seems that Ann Wolf could not, after his death, derive any right from him, but must, as far as any such title was concerned, have been a wrongful holder. See Doe dem. Parker v. Gregory, antè, p. 14., and the authorities cited, p. 15. note (b). (d) 5 B. & Ald. 223.

(b) 1 Taunt. 208.

indeed,

indeed, it is contended that she held by an alleged title in fee, from the time of her husband's death, she cannot have claimed that title in right of her husband, since it does not appear that he left any will. In that case her's must be considered as an adverse possession, beginning from his death. But she held for no more than sixteen years from that time; and the subsequent possession for three years by Richard and Martha Hooper was not a continuation of this supposed adverse possession by Ann Wolf. They made no assertion of right under her will; and the mode in which Richard Hooper at last disposed of the property is inconsistent with such an assertion. At most, there is only an adverse possession of sixteen years by Ann Wolf, and three years by Richard and Martha Hooper. Richard might have been ejected during any part of the three years. As to the supposed chattel interest, Rex v. Okeford Fitzpaine (a) shews that such interest would not vest in the manner now contended for till administration was taken out, Rex v. Thruscross (b) was a case of copyhold; the devisee there, before admittance, had a right as against every one but the lord. In Rex v. Stone (c) probate was ultimately obtained; so was administration in Rex v. Horsley (d). Until the probate can be produced, it cannot be affirmed with certainty that the property was at any time in the party supposed to be executor: Coe v. Westernham (e). But, in fact, there was in the present case no chattel interest, for in August 1784 all the lives in the lease of 1732 had fallen.

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Lord