evidence of consecration. (p) So, the liability to repair fences, (q) the right to land nets, (r) the death of remote ancestors without issue,(s) mesne assignments of leaseholds,(t) re-conveyances by feoffee to feoffor,(u) and by mortgagee to mortgagor,(x) have in like manner been presumed.

§ 110. It has been already mentioned that the practice of advising juries to make artificial presumptions was formerly carried too far, (y) and there are several modern cases in which the courts have refused to direct such to be made. In Doe d. Fenwick v. Reed,(z) it appeared, that, in 1752, an ancestor of the defendant had been put in possession of the lands in question as a creditor under a judgment against the then owner, which possession continued in the defendant and his family down to the time of the trial, in 1821. It appeared, also, that the titledeeds (which, however, also related to other lands) had continued in possession of the plaintiff's family, and that moduses had been paid by them for several estates, including some of the property in [ *147 ] *question. On this evidence, Bayley, J., told the jury, that the real question for them to consider was, whether they believed that a conveyance to the defendant, or those under whom he claimed, had actually taken place; observing, that the loss of a deed of conveyance was less likely to take place than of a grant of right of way; and that, during a portion of the period of the possession, during the marriage of two parties under whom the plaintiff claimed, no conveyance could have been made, without levying a fine, which, being of record, might have been produced, if it had existed. The jury having found for the lessor of the plaintiff, a new trial was moved for, on the ground of misdirection; but the whole Court of Queen's Bench concurred in refusing a rule. Lord Tenterden, in delivering his judgment, says, "I am clearly of opinion that the direction was according to law. In cases where the original possession cannot be accounted for, and would be unlawful unless there had been a grant, the rule may perhaps be different. Here the original possession is accounted for, and is consistent with the fact of there having been no conveyance. It may, indeed, have continued longer than is consistent with the original condition; but it was surely a question for the jury to say whether that continuance was to be attributed to a want of care and attention on the part of the family, (under whom the plaintiff claims,) or to the fact of there having been a conveyance of the estate. As the defendant's ancestors had originally a lawful possession, I think it was incumbent on him to give stronger evidence to warrant the jury in coming to a conclusion that there had been a conveyance. As to the observations respecting

(p) Moysey v. Hillcoat, 2 Hagg., N. S., 50, (4 Eng. Com. Law Reps.)

(9) Boyle v. Tamlyn, 6 B. & C. 329, (13 Eng. Com. Law Reps.)

(r) Gray v. Bond, 2 B. & B. 667, (6 Eng. Com. Law Reps)

(8) The Earl of Roscommon's Claim, 6 Čl. & F. 121; Doe d. Oldham v. Wolley, 8 B. & C. 22, (15 Eng. Com. Law Reps.)

(t) Earl v. Baxter, 2 W. BI. 1228; White v. Foljambe, 11 Ves. 350.

(u) Tenny d. Whinnett v. Jones, 3 M. & Scott, 472, (40 Eng. Com. Law Reps.)

(x) Cooke v. Soltau, 2 S. & Stu. 154.

(y) Doe d. Fenwick v. Reed, 5 B. & A. 236, (7 Eng. Com. Law Reps.) per Lord Tenterden, C. J.; Day v. Williams, 2 C. & J. 460, per Bayley, B.; Evans v. Bicknell, 6 Ves. jun. 182, 184, per Lord Eldon, C.; and see supra, part Ï. c. 3, § 39.

(≈) 5 B. & A. 232, (7 Eng. Com. Law Reps.)

the fine, &c., I think the *judge might properly tell the [ *148 ] jury, that, under such circumstances, they would probably find a fine levied. In my opinion, presumptions of grants and conveyances have already gone too great lengths, and I am not disposed to extend them further."(a) In the case of Doe d. Howson v. Waterton,(6) where copyhold premises were surrendered to a charitable use in 1743, but it did not appear that the provisions of the 9 Geo. 2, c. 36, with respect to the inrolment of conveyances to charitable uses, had been complied with, it was held, in 1819, that the existence of a bargain and sale and inrolment under the statute could not be presumed from the possession since 1743. Lord Tenterden, C. J., there says, "It is said that in this case the court may presume, if necessary, that a bargain and sale and inrolment have been made. But no instance can be found where the courts have presumed that an inrolment has been made. I am of opinion that no presumption ought to be made." And Bayley, J., adds, "As to presuming an inrolment, if it had appeared that the rolls of Chancery had been searched, and a chasm had been discovered about the period of this surrender, it might have been different. At present, there is no evidence upon which such presumption can be founded."(c) It is said, however, *that there is no presumption against money having been given

[ *149 ]
to a charity.(d)

§ 111. It has been said that the registration of the memorial of a deed in a register county cannot be presumed, and that direct proof must be adduced ; (e) but it is difficult to contend that there can be any matter of fact which a jury may not presume from possession and circumstances, when that possession and those circumstances are sufficiently strong to convince them of its existence. The true conclusion seems to be, that, in the case of the memorial of a deed requiring registry, &c., the court will not direct them to make any artificial presumption.(f)

§ 112. Under this head comes the important doctrine of the presumption of conveyances by trustees. It is a general rule, that, whenever trustees ought to convey to the beneficial owner, it should be left to the jury to presume that they have so conveyed, whenever such presumption can reasonably be made.(g) This rule has been established to prevent just titles from being defeated by mere matter of form,

(a) See, also, Doe d. Hammond v. Cooke, 6 Bing. 174, (19 Eng. Com Law Reps.) (b) 3 B. & A. 149, (5 Eng. Com. Law Reps.)

(c) See, also, Wright v. Smithies, 10 East, 409. These cases only shew that possession of fifty or sixty years is insufficient to raise the presumption. What would be said hereafter, if a possession, under similar circumstances, could be shewn to have existed for several centuries? We have seen, (supra, art. 74,) that, in the case of R. v. Long Buckby, 7 East, 45, an indenture thirty years old was presumed to have been duly stamped and inrolled, although an officer from the Stamp-Office proved that such did not appear. There is, however, a difference between the cases. Conveyances in mortmain are discouraged by law; but objections founded on the Stamp Acts are not favoured by the courts.

(d) Pickering v. Stanford, 2 Ves. jun. 583.

(e) Phill. & Am. Ev. 476; Doe d. Beanland v. Hirst, 1 Price, 475.

(ƒ) Greenleaf, L. E. 52, art. 46, n. (2). It is a general rule, that juries may find matters of record on presumptive evidence. Finch, Law, 399, 400.

(g) 3 Sugd. V. & P. 25, 42, 43, 10th ed.; Greenl. L. E. 52, art. 46; Doe d. Bowerman v. Sy bourn, 7 T. R. 3; Keene d. Byron v. Deardon, 8 East, 263, 266; Viscountess Stafford v. Llewellin, Skinn. 77; Goodtitle d. Jones v. Jones, 7 T. R. 49; Doe d. Reede v. Reede, 8 T. R. 122; R. v. Upton Gray, 10 B. & C. 807, (21 Eng. Com. Law Reps.) per Parke, B.; England d. Syburn v. Slade, 4 T. R. 682; Wilson v. Allen, 1 Jac. & W. 620.

but it is not easy to determine the practical extent of it. It may, however, be stated generally, that the presumption ought to be one in favour *of the owner of the inheritance, and not one against his interest;(h) and the rule is subject to this further limita[ *150 ] tion, that the presumption cannot be called for where it would be a breach of trust in the trustee to make the conveyance.(i) On the same principle, re-conveyances from the trustees to the cestui que trust will be presumed,(k) as also will, under proper circumstances, conveyances from old to new trustees.()

§ 113. Few subjects have given rise to greater difference of opinion than that of the presumption of the surrender of their terms by trustees for terms of years. In Lord Mansfield's time, the courts seem to have entertained notions on this subject, which, if carried out in practice, would have gone far to subvert the trial by jury on the one hand, and confound all distinction between legal and equitable jurisdiction on the other.(m) In the case of Lade v. Holford,(n) Lord Mansfield said that "he and many of the other judges had resolved never to suffer a plaintiff in ejectment to be nonsuited by a term, standing out in his own trustees, or a satisfied term to be set up by a mortgagor against a mortgagee, but that they would direct the jury to presume it surrendered." There is no objection to the latter branch of this proposition, which seems generally recognised in practice; for, by *not assigning the term for the benefit of the mortgagee, and after-*151 ] wards setting it up against him, the mortgagor would be guilty of a gross fraud, so that the presumption of the surrender of the term is really an application of the legal maxim which presumes against fraud and covin:(0) and it has accordingly been held that such a presumption will not be made in favour of a prior mortgagee against a subsequent mortgagee in possession of the title-deeds, without notice of the prior incumbrance. (p) But the general proposition, never to suffer a plaintiff to be nonsuited by a term outstanding in his trustees, is, at least if taken in its literal sense, inconsistent with principle, and at variance with subsequent authority. The surrender of a term is a question of fact, and the court has not only no right, but it would be most dangerous, to advise a jury to presume such a surrender, when all the evidence clearly indicated the reverse. In Doe d. Reede v. Reede, (q) Lord Kenyon said, "I agree with what was said in Lade v. Holford, that, where the beneficial occupation of an estate by the possessor has given reason to suppose, that, possibly, there may have been a conveyance of the legal estate to the person who is equitably entitled ⚫ to it, a jury may be advised to presume a conveyance of the legal es

(h) 1 Phill. & Am. Ev. 476; Doe d. Graham v. Scott, 11 East, 483; Doe d. Burdett v. Wrighte, 2 B. & A. 720.

(i) 1 Phill. & Am. Ev. 476; Keene d. Byron v. Deardon, 8 East, 267.

(k) Doe d. Reede v. Reede, 8 T. R. 122; Hillary v. Waller, 12 Ves. 250, 251. See 2 Sugd. Vend. & Pur. 196, 10th ed. (1) Roe d. Eberall v. Lowe, 1 H. Bl. 446.

(m) See 3 Sugd. Vend. & Pur. 39, 40, 42, 10th ed.; Evans v. Bicknell, 6 Ves. 184; Lessee L. Massey v. Touchstone, 1 Sch. & L. 67, n. (c); Wallwyn v. Lee, 9 Ves. 31; Doe d. Hodsden v. Staple, 2 T. R. 696; Doe d. Bristow v. Pegge, 1 T. R. 758, n.

(n) Bull. N. P. 110.

(0) 3 Sugd. Vend. & Pur. 42, 10th ed. See per Lord Tenterden, C. J., in Doe d. Putland v. Hilder, 2 B. & A. 790.

(p) Goodtitle d. Norris v. Morgan, 1 T. R. 755; Evans v. Bicknell, 6 Ves. jun. 184. (9) 8 T. R. 122.

tate; but if it appear in a special verdict, or a special case, that the legal estate is outstanding in another person, the party not clothed with the legal estate cannot recover in a court of law; and in this respect I cannot distinguish between the case of an ejectment brought by a trustee against his *cestui que trust, and an ejectment

[ #152 ] brought by any other person." And the same learned judge, in Doe d. Bowerman v. Sybourn,(r) said, that "the doctrine laid down by Lord Mansfield in Lade v. Holford was not, as had been supposed, that an ejectment might be maintained upon a mere equitable title, which would remove ancient landmarks in the law, and create great confusion; but that, in all cases where trustees ought to convey to the beneficial owner, he would leave it to the jury to presume, when such presumption might reasonably be made, that they had conveyed accordingly, in order to prevent a just title from being defeated by a matter of form."

§114. The surrender of a term, like any other fact, may be inferred from circumstances.(s) Thus, in the case of Bartlett v. Downes,(t) which was an action for fees, brought by a party claiming to be steward of a manor, under an appointment made to him by the owner of the inheritance, against the defendant, who claimed under a devisee of that party, it was held that it was properly left to the jury to say whether they thought an old term outstanding or not; it appearing by the evidence that the party under whom the defendant claimed had admitted by letter the right of the testatrix to appoint to the office, the grant of which also would have been void, supposing the term outstanding. It is, however, said by Lord Eldon, in the case of Evans v. Bicknell, (u) that the fact of a term having been satisfied, is not when standing alone, sufficient to raise the *presumption of a sur[ *153 ] render, but that there must be some dealing with the term. And in Williams v. Day,(x) which was an action by a reversioner for undermining a dwelling-house, where the defendant, in order to disprove the plaintiff's title, proved a lease for lives to the plaintiff, and the creation of a term by will eighteen years previous, by which the premises were devised to trustees in trust to pay annuities, and for other purposes, with remainder to the lessor, it was held by the Court of Exchequer that the judge at Nisi Prius had rightly told the jury that they could not presume a surrender of the term.

115. Where acts are done or omitted by the owner of the inheritance, and persons dealing with him as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made, a surrender of the term may be presumed.(y) Applications were, however, made of this principle, in the cases of Doe d. Burdett v. Wrighte(z) and Doe d. Putland v. Hilder,(a) which have occasioned as much discussion as almost any

(r) 7 T. R. 3. See, to the same effect, Goodtitle d. Jones v. Jones, 7 T. R. 43; Doe d. Hodsden v. Staple, 2 T. R. 684; and Doe d. Shewen v. Wroot, 5 East, 132.

(8) 3 Stark. Ev. 926, n. (m), 3rd ed.; White v. Foljambe, 11 Ves. 351; Doe d. Brune v. Martyn, 8 B. & C. 513, (15 Eng. Com. Law Reps.)

(t) 3 B. & C. 616, (10 Eng. Com. Law Reps.)

(u) 6 Ves. jun. 185.

(x) 2 C. & J. 460. See, also, Doe d. Hodsden v. Staple, 2 T. R. 684.
(y) 1 Phill. & Am. Ev. 477; Doe d. Putland v. Hilder, 2 B. & A. 791, 792.
(x) 2 B. & A. 710.

(a) Id. 782.

question to be found in the reports; namely, whether the surrender of a term of years assigned to attend the inheritance is, as among purchasers or incumbrancers, to be presumed to have been surrendered, on the ground of its having remained for a series of years unnoticed in marriage settlements, and other family documents. The negative of this proposition has been so ably advocated *by Sir E. Sugden, in his work on Vendors and Purchasers, (b) as to [ *154 ] leave us little else to do than lay before our readers a summary of his arguments, after which we will state the cases the other way, together with those which have been subsequently decided. "It is," he observes, "the settled law of courts of equity, that, if a man buys an estate fairly, he may get in a term of years or other incumbrance, although it be satisfied, and thereby defend his title at law against any mesne incumbrance of which he had no notice.(c) At law every term is a term in gross. The owner of the fee is tenant at will to his own trustce.(d) The term is anxiously assigned to attend the inheritance; it does accordingly attend the inheritance, and the performance of the very service for which it was cre[ *155 ] ated never can be a ground for defeating its legal operation. Upon principle, therefore, a term of years assigned to attend the inheritance ought not to be presumed to be surrendered, unless there has been an enjoyment inconsistent with the existence of the term, or some other act none in order to disavow the tenure under the termor, and to bar it as a continuing interest. The universal practice, not to require the assignment of attending terms on descents or settlements, proves unequivocally the opinion of the profession, that the possession of the heir, and of the person claiming under the settlement, is in law the possession of the trustees of the term. Does then a subsequent purchase, without the purchaser's taking an assignment of the term, let in the presumption of the surrender of the term? The term was assigned to attend the inheritance, and in trust for the party, his heirs and assigns. If the possession of the heir and his family under the settlement was not adverse to the title of the termor, how can the title of the purchaser be so? The event-if the event is to be looked at on which this question hinges-shews that he required the protection of the term more than any of the former owners; and if his acts (b) 3 Sugd. Vend. & Pur. c. xv. s. 3, 10th ed.

(c) The protection afforded against mesne incumbrances, by the assignment of attendant terms of years, rests on the maxim of equity, that, where there is equal equity, the law shall prevail. "Suppose," says Mr. Butler, in his note to Co. Litt. 290. b. N. (1), XV., “ A. purchases an estate which, previous to his purchase, has been sold, mortgaged, leased, and charged with every kind of incumbrance to which real property is subject: in this case A. and the other purchasers, and all the incumbrancers, have equal claims upon the estate. This is the meaning of the expression, that their equity is equal. But if there is a term of years subsisting in the estate, which was created prior to the purchases, mortgages, or other incumbrances, and A. (without fraud or notice of the purchases, &c.) procures an assignment of it in trust for himself, this gives him the legal estate in the lands during the continuance of the term, absolutely discharged from, and unaffected by, any of the purchases, mortgages, and other incumbrances subsequent to the creation of the term, but prior to his purchase. This is the meaning of the expression in assignments of terms, that they are to protect the purchaser from all mesne incumbrances." It may be made a question, whether, and to what extent, the legal rights of trustees are barred or affected by the new Statute of Limitations, 3 & 4 Will. 4, c. 27, ss. 2 and 6. The author is not aware of any judicial decision on this point, which is one of great importance, affecting most materially the advan. tages resulting from terms assigned to attend the inheritance.

(d) Freeman v. Barnes, 1 Ventr. 80; Dighton v. Greenvil, 2 Ventr. 329.