case sterling against PENLINGTON LincolnsInnHall that February a on her  husband death enter and be seize in fee of onefourth of a estate be tenant in  dower of another four and guardian in socage to her son of the remain moiety  the son die abroad by which b his sister become entitle b marry and she and  her husband bring a bill for a account and a ejectment at law a account be  decree after which b die and the question be if b have such a seize as to give  her husband a right of tenant by the courtesy and decree that she have for  that the seize of the mother as guardian modern report er p be a seize of the  daughter though the Lord chancellor say that a ejectment without confession of  lease entry and ouster will not make a seize sufficient to give the husband  such a title S c Eq Abr S c viner S c viner a upon the death of her husband  enter and be seize in fee as tenant in common of one four part of a estate and  be likewise tenant in dower of one other four part be a three part of the  remain threefourths and as to the other moiety of the whole estate she be  seize as guardian in socage to her son the son go abroad and die under age  upon which his sister become entitle and then the mother be guardian in socage  to her the daughter marry and die under age but before her death a bill be  bring by the husband and wife for all account of the refits and profit which  the mother refuse to give or let the daughter occupy imagine the son to be  then alive by the decree a account be direct with a reservation of liberty to  apply for further direction the plaintiff and his wife likewise bring be  ejectment against the mother and recover and upon the reservation the question  be whether the mother receive the profit and continue in possession as  guardian in socage there be such a seize of the daughter of this estate during  the coverture as will entitle the husband to be tenant by the courtesy for the  plaintiff be cite cro James salk   more   carter and Plowd Hardwicke Lord  chancellor I have at first a doubt whether the husband can be a tenant by the  courtesy or not but now I think he be so both in law and in equity as to the  point whether a ejectment and a confession of lease entry and ouster be a  sufficient entry to make seize in deed and so the husband tenant by the  courtesy after the wife death it be not necessary to be determine at present  but if it be I shall think it be not a sufficient entry to make he tenant by  the courtesy there have be many resolution modern report with regard to the  force and effect of a entry by ejectment and at a meeting of all the judge in  holt time in the three year of queen whether it be determine that a confession  of lease entry and ouster or deliver a ejectment will be a sufficient entry  for nonpayment of rend but they say they shall not have go so far have it not  be for the former resolution to that effect but they hold it will not be a  good actual entry to avoid a fine or the statute of limitation unless upon a  proceed in the same action on that ejectment but in another action after the  twenty year it will not this be a strong determination that deliver a  ejectment or the rule for confession of lease entry and ouster be not  sufficient to make a actual entry a see Berrington v Parkhurst stram S c andr  S c bro p c oat v brydon burr Goodright v cator dougl Jenkins v Pritchard will  a and therefore that it will not make such a seize in deed as will make the  husband tenant by the courtesy but he ought to have make a actual entry after  the death of his wife b see fitchet v Adam stram b but upon other reason I be  of opinion that the husband in this case ought to be tenant by the courtesy  upon the first point that the entry of the mother as tenant in common of one  four part will be a sufficient entry of the daughter during the coverture to  make her husband tenant by the courtesy it be true as say by hob that a tenant  in common may enter three different way by claim and receive the profit for  himself and companion which be the most clear or by claim the whole for  himself only but that be not a actual entry for the other but to his exclusion  or be may enter general and that shall be adjudge for himself and companion  because all general entry must be construe accord to the right of the case the  father die the mother enter and be seize of one four part as tenant in common  of another four as tenant in dower and as to the other moiety as guardian in  socage to her son and that be the seize of the son and so she continue during  the son life it be say notwithstanding that she hold over after the death of  the son be a exclusion modern report er p of the daughter because she refuse  to let her enter or to account for the profit but that be not claim for  herself but insist her son be live which be a mistake in fact be be then dead  at commonlaw a action of account will not lie by one tenant in common against  his companion unless he have make he his bailiff and so be Lord coke and that  be the occasion of whether c by which the law be alter and a action give  general to one tenant in common against the other and therefore one tenant in  common can enter in such manner as to exclude his companion but by express  word because then the action of account will lie against he by that act and  then this must be a seize of both for a action of account will not lie by one  tenant in common against another unless he have be in possession for since  this Act of parliament there must be a actual ouster but the mother modern  report admit herself to be tenant in common with somebody therefore it be rest  only upon this that the possession of the mother be a sufficient seize of the  daughter during the coverture but it appear the son die in and the daughter  then a infant and do not marry till four year after that show the mother be  seize as tenant in common with her daughter as to a four part and as to the  other moiety she be seize as guardian to her daughter for the law will adjudge  it that she receive the profit as guardian to her daughter and that will be  the seize of the daughter for let her be in possession in any way whatsoever  the law will consider her as guardian to her daughter if so the daughter marry  and her declaration afterward will signify nothing for if there be any seize  of the wife during the coverture the seize afterward will not vary the case if  she be ever actual seize for notwithstanding she be seize afterward the  husband will be tenant by the courtesy because the seize of the wife during  the coverture be what give he the title thus it be at law and in this court it  be strong the husband and wife bring a bill against the mother and there be a  decree to account for the profit accrue during the wife life with a  reservation for further direction which prove that the wife be seize for if  she have not be by law seize they can be entitle to no account and upon this  reservation I be bind to proceed upon the same principle as that decree and if  I be to adjudge the share of the profit of the land accrue due in the lifetime  of the wife to belong to the husband it will be a absurdity if I do not  likewise adjudge the same land itself to belong to the husband and that he  shall be tenant by the courtesy after the wife death for it will be contradict  the decree in term therefore I think the husband be tenant by the courtesy c