make entry into any lands, Williams Serjt. in Trinity term fhewed caufe. At the decease of William Peart, Mary was under no difability; and the question is, whether the exception given in the fecond fection of 21 Jac. 1. c. 16. fhall extend to the whole eftate, or only to the moiety of that parcener who lay under the disability. There are no cafes which bear on the point except collaterally, it is neceffary therefore to refer to principles of law. The words of the firft fection are, that no perfon fhall tenements or hereditaments, but within 20 years next after his or their right or title which shall first descend or accrue to the fame, and in default thereof, fuch perfons fo not entering, and their heirs, fhall be utterly excluded and difabled from fuch entry after to be made. The prefent is not the cafe, where the poffeffion of one coparcener is the poffeffion of the other; it was not clear even at common law, that an action of account did not lie for a parcener out of poffeffion against his companion, and the ftatute of 4 Ann. c. 16. f. 27. gave it expressly. But this is a very different cafe: neither parcener was in poffeffion here. The two moietifts need not have joined in ejectment. Mary Peart might in 1763 have brought an ejectment for her moiety. The other parcener and her husband might have brought ejectment for the other moiety. Their titles clearly accrued to them refpectively in 1763 upon their brother's deceafe. The feme covert could not then indeed enter without her husband's confent, because the is fuppofed to be under the control of her husband. But in Lord Zouch's cafe, Plowd. 353 it is held, that if a perfon dies having levied a fine, and leaves the next in title an adult, who dies the next day, leaving an infant heir, that infant must enter immediately. The only cafe which feems to bear on the point, is fomewhat adverse, but is not the decifion of the Court, Plowd. 367it is thus put by Bendlefe. "Two jointenants are 1810. ROE, dem. V. ROWLSTON. are diffeifed, one of whom is within age. The diffeifor levies a fine with proclamations: four years pass after the proclamations, and then the jointenant of full age dies before the five years paffed, the other being within age: the infant who furvives fhall have five years after his full age as well for the moiety which was in his joint companion who was of full age, as for the other moiety; for the right of this moiety, which was in his companion of full age, first accrues to him after the proclamations made, by force of the caufe or matter, to wit, by the jointure, made before the fine. And so it is within the words and intent of that branch, notwithstanding that the moiety was in his companion before, for it is in him now in another form." Whether this be law or not I do not know, but if it be law, yet it is a very different cafe from the prefent, for it is by the fecond faving of the ftatute of fines; and there the title must first accrue by survivorship after the fine, operating upon a jointenancy commenced before the fine; for upon the decease of the companion a new title accrues to the furvivor after the fine by matter before the fine, which is exceedingly dif ferent from the statute of Jac. 1. which requires that the claimant shall enter within 20 years after his title accrues. Befides, a jointenant alone cannot bring ejectment. [Mansfield C. J. No doubt fo long as the difability of one parcener continued, the ftatute 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 fingular, if Mary, who had long loft her right of entry during the coverture of her fifter, should have a right of entry restored to her by the ceffer of the coverture.] Lens Serjt., in fupport of his rule, contended, First, coparceners as well as jointenants, must join in that ejectment, [which the Court denied.] If jointenant alone were to demife, that leafe would be a feverance, and it is clear that tenant in common may and must fever; that therefore proves nothing with refpect to coparceners, but leaves this point untouched, for in fuch a cafe each parcener would recover in ejectment his own moiety as tenant in common; but in the prefent cafe nothing has been done to fever the jointure. A leafe, though it would fever a jointenancy, would not fever a coparcenary; and the queftion is, whether both parceners having one entire eftate, and the right of one being preferved, the right of the other fhall not be preferved alfo. 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.f.241. On account of the nonage of one parcener the parol fhall 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 feveral perfons; fo have they one entire freehold in the land, fo long as it remains undivided, in respect of any strangers pracipe. And this co parcenarie is not fevered or divided by law by the death of any of them; for if one die, her part fhall defcend to her iffue, and one pracipe fhall 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 perfon whofe title is not entire in herfelf, may avail herfelf of the title be ing partly in another and when the other enters, the first shall recover her fhare alfo. The protection of the interest of the one neceffarily protects the intereft of the other. The cafe cited from Plowden is not in point; but it is applicable in principle; for it fhews that where the title is protected, the whole title is protected; and therefore the coverture here has protected the title in VOL. II. parcenary, G g 1810. Roɛ, dem, V. ROWLSTON. 1810. ROE, dem. LANGDON, υ. ROWLSTON. 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 faid that the poffeffion of one jointenant is the poffeffion of the other to protect against the statute of limitations. [Mansfield C. J. If your argument is right, why fhould not the Barretts have entered after 20 years, and while the difability of the other parcener continued? They might have so done: but in that cafe they would enter before the latest period allowed them for entering. [Mansfield C. J. That would be directly contrary to the ftatute.] A parcener may fever and enter on her moiety, or may enter jointly with her coparcener; and although, after 20 years, fhe would be barred from fevering and entering upon her own sepa rate title; yet she would be entitled to enter in respect of the joint title of all the coparceners when the disability ceased. Cur. adv. vult. In the present term Mansfield C. J. delivered the opinion of the Court: In this cafe were two demises; and a verdict paffed for the Plaintiff on the fecond demife by Elizabeth Langdon, the fact being, that the eftate defcended to Elizabeth Langdon, a feme covert, and Mary Peart, in parcenary, and that twenty years elapfed without Mary Peart's entering. And the only queftion was, whether the leffor of the Plaintiff was not entitled to judgment on the first count, on the idea that as Elizabeth Langdon was under a difability at the time of the defcent caft, that circumftance was to operate in favor 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 9. |