Thrustont v. Pratt , 1 Va. Col. Dec. 173 ( 1753 )

Appeal from a Judgm’t in Westmoreland Court in Ejectmt’ Robert Howson was Seized in fee of 450 Acres of Land w’th the Appurt’s and died leaving Issue three Daughters — Ann, married to Rice Hoe, Mary married to Charles Calvert, And Frances, who died unmarried.

8. Jan’ry 1699, these three Sisters make Partition of these Lands Descended from their Father, and soon after Frances died without Issue And Calvert and his Wife entered and died leaving Issue two Daughters.

These two Daughters have Legally Conveyed their Estate in the Premises to the Defts. Father John Pratt by Deed dated Jan’ry 27th 1718.

The Lessor of the Pit. as Heir at Law of Ann Hoe entered into a Moiety of the part of Frances and Leased it to the Pit. The Pit. entered The Deft, ent’d upon him and Ousted him and he brought an Ejectm’t in the County Court where Judgm’t was given for the Deft. And now the Sole Question must be Whether the Entrey of the Lessor of the Pit. is not barred by the Stat. of Limitations

The Lessor of the Pit. was 33. years old in Feb. 1729, and Therefore if the Stat. did run upon him it must be Admitted that he is barred. But it will be Objected that the Stat. of Lim’n never runs ag’t a Man but where he is actually ousted or disseised And that a bare possession or perception of Profits of one Parcener works no Disseisin of another Parcener According to the Case of Reading & Royston. 2. Salk. 423. And I admit the Law to be so. But that Case is to be understood Accord’g to Co. Lit. 373. b. thus

Where "one Parcener entereth generally into the whole this doth divest the Estate which descended by the Law to the other. But where one Parcener entereth & Claims the whole; and takes the Profits of the whole that shall divest the Freehold in Law of the other Parcener

And where one Parcener enters into the whole and maketh a Feoffm’t in fee this subseq’t Act doth so explain the Entrey [174] Precedent, that the whole is divested from the beginning

This being our Case, the Freehold was divested from the time of the Entrey of Calvert and his Wife, and from that time the Stat. of Limitations has run upon the Lessor of the Pit.

But the other side took the difference, that the Conveyance made to the Defend’ts Father was made by the Daughters & Coheirs of Calvert and his "Wife, and not by Calvert and his Wife, who entered into the whole, And therefore the Conveyance cannot explain their Entrey And I suppose this Distinction induced the Court to give Judgm’t ag’t my Client

And I think it was a right Judgment.