Page:The English Reports v1 1900.pdf/793

possession near twenty years before, and to the time of his death, and to have devised the same to the respondents. That the sanity of Packington and his said will were proved in the cause; and so was his marriage with Mary the respondents mother, by evidence of twenty years cohabiting together, and general reputation; which is sufficient proof of marriage until the contrary appears, especially upon a possessory suit upon a forcible entry, where a colour of title only is required; and it was not proved on the part of the appellant, that it was a marriage within the Irish act annulling marriages between Protestant and Papist, by a Popish priest within that kingdom. That [38] the possession of the respondents, and the forcible entry and detainer by the appellant being also proved, the respondents had made out the requisites to entitle them to the order and decree appealed from, viz. possession, forcible entry, and title not determined. That the impropriety of entering into a discussion of the strict right upon bills of this kind, which are brought merely to be restored to the possession, was a further answer to the objections made to the will of Packington, and the legitimacy of the respondents; and the same answer was to be given to the title of the appellant under the pretended will and codicil, never heard of before, and now set up under the most suspicious circumstances.

But it is objected, that a possessory bill will not lie for a devisee against an heir at law, and that the heir, as the freehold is cast upon him by law, has a right to connect the possession of his ancestor to his own, and is therefore, if disturbed, entitled to be quieted on a possessory bill; but that a devisee has no right to connect such a possession, and therefore cannot maintain a possessory suit, without shewing a three years quiet and actual possession.

There is not however any such rule, as that a devisee cannot maintain a possessory bill against an heir at law, nor can any good reason be given for it; for in the case of a devise, the freehold in law is in the devisee before entry, and nothing descends to the heir; and if he enters, the devisee can enter upon him. If such a rule was to prevail, it would, in a multitude of cases, defeat the statutes made against forcible entries, and instead of preventing, would give countenance to them: a devisee is within the words of the proviso, 8 Hen. VI. which are general, where possession for three years has been in the ancestor or those whose estate he hath; and not being compellable to make restitution, ought therefore to be protected from force by the equity of the statutes, against the heir at law, as well as against any other person; the mischief and inconvenience intended to be prevented, being the same in both cases. When the devisee enters peaceably before the heir, if the heir afterwards enters by force, his subsequent entry is tortious, and in such case the estate of his ancestor cannot be said to be continued in him; but having gained a new tortious possession, he is not within the protection of the statute, but may be compelled to restitution by the ordinary methods of law, and therefore a possessory bill may be maintained against him under the same circumstances. But supposing such a rule was to obtain, yet, upon the state of the evidence in this cause, the respondent Moore, and not the appellant, was to be considered as heir at law of Packington Edgworth. As to the order of the 24th of May 1760, denying the appellant's motion for bringing the rents into court, with costs, the only question in the cause was, whether the respondents were entitled to restitution of possession or not. And the court having, by an order of the 30th of August 1759, ordered restitution, there was no reason to depart [39] from it on the appellant's application, in May 1760; and that application being vexatious and groundless, the court very properly rejected it with costs. The orders also in 1759 and 1760, awarding the attachment against Newcomen, for acting as steward after the injunction issued, and empowering Magill to receive the rents, were proper to enforce the order of restitution, which never was complained of by the appellant, unless by the indirect application in May 1760.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and that the order and decree therein complained of, should be affirmed: and it was further ordered, that the appellant should pay the respondents £100 for their costs in respect of the said appeal. (Jour. vol. 31. p. 248.)