1810.

v.

the second saving of the statute of fines; and there the title must first accrue by survivorship after the fine, operating upon ROE, dem. a joint-tenancy commenced before the fine: for upon the deLANGDON, cease of the companion a new title accrues to the survivor after the fine by matter before the fine, which is exceedingly different RowLSTON. from the statute of Jac. 1. which requires that the claimant shall enter within twenty years after his title accrues. Besides, a joint-tenant alone cannot bring ejectment. [Mansfield C. J. No doubt so long as the disability of one parcener continued, the statute would not run against her. But after 20 years had run from the death of the ancestor, Mary could no longer have entered; and it would be singular, if Mary, who had long lost her right of entry during the coverture of her sister, should have a right of entry restored to her by the cesser of the coverture.]

Lens Serjt. in support of his rule, contended, First, that coparceners as well as joint-tenants, must join in ejectment, [445 ]' [which the Court denied.] If joint-tenant alone were to demise, that lease would be a severance, and it is clear that tenant in common may and must sever; that therefore proves nothing with respect to coparceners, but leaves this point untouched, for in such a case each parcener would recover in ejectment his own moiety as tenant in common; but in the present case nothing has been done to sever the jointure. A lease, though it would sever a joint-tenancy, would not sever a coparcenary; and the question is, whether both parceners having one entire estate, and the right of one being preserved, the right of the other shall not be preserved also. In the old real actions, it is a good plea in abatement to the ability of the defendant that another ought to be joined as coparcener. Co. Litt. 164. a. Litt. s. 241. On account of the nonage of one parcener the parol shall demur for both. They are both but one heir, and one of them is not the moiety of an heir, but both of them is but unus hæres. 163. b. And as they be but one heir and yet several persons; so have they one entire freehold in the land, so long as it remains undivided, in respect of any stranger's præcipe. And this coparcenary is not severed or divided by law by the death of any of them; for if one die, her part shall descend to her issue, and one præcipe shall lie against them. 164. a. If, therefore, all make but one heir, and the title is protected, it is the title of the two. A person whose title is not entire in herself, may avail herself of the title

ROE, dem.
LANGDON,

v.

1810. being partly in another: and when the other enters, the first shall recover her share also. The protection of the interest of the one necessarily protects the interest of the other. The case cited from Plowden is not in point; but it is applicable in ROWLSTON. principle; for it shews that where the title is protected, the whole title is protected; and therefore the coverture here has protected the title in parcenary, that is, for the feme covert herself, and for her coparcener as well as for herself. 2 Salk. 185. Ford v. Gray. It is said that the possession of one joint-tenant is the possession of the other to protect against the statute of limitations. [Mansfield C. J. If your argument

[ 446 ]

[ 447 ]

is right, why should not the Barretts have entered after 20
years, and while the disability of the other parcener conti-
nued?] They might have so done: but in that case they
would enter before the latest period allowed them for entering.
[ Mansfield C. J. That would be directly contrary to the sta-
tute.] A parcener may sever and enter on her moiety, or may
enter jointly with her coparcener; and although, after 20
years, she would be barred from severing and entering upon
her own separate title; yet she would be entitled to enter in
respect of the joint title of all the coparceners when the dis-
ability ceased.
Cur. ado. vult.

In the present term Mansfield C. J. delivered the opinion of the Court:

In this case were two demises; and a verdict passed for the plaintiff on the second demise by Elizabeth Langdon, the fact being, that the estate descended to Elizabeth Langdon, a feme covert, and Mary Peart, in parcenary, and that 20 years elapsed without Mary Peart's entering. And the only question was, whether the lessor of the plaintiff was not entitled to judgment on the first count, on the idea that as Elizabeth Langdon was under disability at the time of the descent cast, that circumstance was to operate in favour of the other coparcener. Upon the hearing of the argument, we were, and are now, of opinion, that the entry of Elizabeth Langdon cannot give a right of entry to Barrett, whose right was before barred by the statute of limitations; but that the judgment must be for the lessor of the plaintiff for the moiety only. Rule discharged.

END OF EASTER TERM.

INDEX

TO THE

PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.