16

COURT OF APPEALS OF VIRGINIA.

1847 .

April

Term.

2£fclnnonii.

Purcell ff wife fy als. v. Wilson.

1. A testator says: “I give and bequeath to my loving wife theland which her father gave me, being, &c. I also give unto mysaid wife the following slaves, viz: Winney, &c., during her na-tural life, to be disposed of at her own discretion, either by deedor will among my children.” Held : The wife has a fee in theland.

2. The possession of one coparcener or tenant in common beingthe possession of all, none in possession of the whole subject canavail themselves of such possession, as a defence under the sta-tute of limitations, against the rest, without an actual disseisin orouster of their coparceners or cotenants.

3. A special verdict in a writ of right, where the defence is thestatute of limitations, must find either an actual disseisin or ous-ter of the demandants, or those under whom they claim, or factswhich in law constitute such actual disseisin or ouster.

4. Though a great lapse of time, with other circumstances, maywarrant the presumption of a disseisin or ouster by one coparce-ner or tenant in common, of another not labouring under disabi-lities, this presumption is a matter of evidence for the considera-tion of the jury, and not a question of law for the decision of theCourt upon a special verdict.

5. The act 1 Rev. Code, ch. 118, § 1, p. 468, which authorizes therecovery of damages in writs of right, intends such damages asmay be recovered in actions of trespass for mesne profits. And asfrom the form of the pleading, the statute of limitations applica-ble to the mesne profits, cannot be pleaded, the tenant may give itin evidence upon the trial; and the demandant’s recovery ofmesne profits will be for five years next before the bringing thewrit of right down to the recovery of possession.

This was a writ of right brought in the Circuit Courtof Fauquier , by William F. Purcell and Mary hiswife, and William B., Margaret and Julia Harrisonagainst Archibald Wilson. The writ was issued on the14th of June 1837, to recover an undivided fifth part offive hundred acres of land in the county of Fauquier .

The mise was joined in the usual form : and on thetrial of the cause at the May term of the Court in 1838,