1822. Ricard V. Williams. until the contrary appears. When, therefore, a naked possession is in proof, unaccompanied by evidence, as to its origin, it will be deemed lawful, and co-extensive with the right set up by the party. If the party, claim only a limited estate, and not a fee, the law will not, contrary to his intentions, enlarge it to a fee. And it is only when the party is proved to be in by disseisin, that the law will construe it a disseisin of the fee, and abridge the party of his right, to qualify his wrong. Now, in the case at bar, it is not proved of what estate Thomas Dudley died seised in the premises. His possession does not appear to have been accompanied with any claim of right to the inheritance. It might have been an estate for life only, and as such, have had a lawful commencement. If it were intended to be argued, that he had a fee in the premises, it should have been established by competent proof, that he was in possession, claiming a fee by right, or by wrong. No such fact appears. The only fact, leading even to a slight presumption of that nature, is, that his widow took one third of the rents and profits during her life. But whether this was under a claim of dower, or any other right, is not proved. The circumstance is equivocal in its character, and is unexplained; and the inference to be deduced from it, of a descendible estate in her husband, is rebutted by the fact, that immediately on his death, his son William entered into the premises, claiming a life estate, and held them during his life, as his own, without any claim on the part of the co-heirs of his father, to share in the estate. There is then nothing in the case, from which it can be ju dicially inferred, that Thomas was ever seised of an estate of inheritance in the premises, and, of course, none of a descent from him to his heirs. Then, as to the estate of his son William in the premises. It is argued, that William had an estate in fee, by right or by wrong. That if his entry, either in person, or by his guardian, was without right, it was a disseisin, and invested him with a wrongful estate in fee. If with right, then it must have been as a co-heir of his father, and a grant ought to be presumed from the other co-heirs to him, releasing their title, and confirming his. 1822. Ricard V. Williams. Presumption of on which grants, grounds it rests, and to ble. The doctrine, as to presumptions of grants, has been gone into largely, on the argument, and the general correctness of the reasoning is not denied. what applicaThere is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments. A grant of land may as well be presumed, as a grant of a fishery, or of common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. They may, therefore, be encountered and rebutted by contrary presumptions; and can never fairly arise where all the circumstances are perfectly consistent with the non-existence of a grant : 1822. Ricard A fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, it is the policy of courts of law, to limit the presumption of grants to periods analoPresumption of grants, how far gous to those of the statute of limitations, in cases limited to peri V. Williams. to those of the ods analogous where the statute does not apply. But where the statute of limi- statute applies, it constitutes, ordinarily, a sufficient tations. title or defence, independently of any presumption of a grant, and, therefore, it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may as well be made in the one case as in the other; and where the other circumstances are very cogent and full, there is no absolute bar against the presumption of a grant, within a period short of the statute of limitations." If we apply the doctrines here asserted to the case at bar, we may ask, in the first place, what ground there is to presume any grant of the premises to William Dudley, and if any, what was the quantity or quality of his estate? It has been already stated that there is no sufficient proof that his father died seised of a descendible estate in the premises; and if so, the entry of William by his guardian, or in person, cannot be deemed to have been under colour of title as heir; and in point of fact he never asserted any such title. For the same reason, no estate can be presumed to have descended to his co-heirs; and if so, the very foundation fails upon which the presumption of a grant from them to William can be built; for if they had no title, and asserted no title, there is no reason a See Phillips on Evidence, ch. 7. s. 2. p. 126. Foley v. Wilson, 11 East, 56. to presume that he or they sought to make or receive In addition to all this, William never claimed any estate in fee in the premises. His declaration uniformly was, that he had a life estate only, and that upon his death they would descend to his son Joseph. Of the competency of this evidence to explain the nature of his possession and title, no doubt can reasonably be entertained. His title being evidenced 1822. Ricard V. Williams. 1822. Ricard V. Williams. only by possession, it must be limited in its extent to the claim which he asserted. If, indeed, it had appeared that he was in under a written title which gave him a larger estate, his mistake of the law could not prejudice him; but his seisin would be coextensive with, and a remitter to that title. But there is no evidence of any written title, or of any mistake of law in the construction of it. For aught that appears, William's estate was exactly what he claimed, a life estate only, and the inheritance belonged to his son Joseph. It is material also to observe, that the acts of the parties, and the possession of the estates during the period of nearly fifty years, are in conformity with this supposition, and at war with any other. Why should William's brothers and sisters have acquiesced in his exclusive possession during his whole life, if the inheritance descended from their father? Why should Joseph's brothers and sisters have acquiesced in his exclusive possession during a period of twenty-five years without claim, if their father William was seised of the inheritance? Why should the guardians of William and Joseph have successively entered into the premises, claiming the whole in right of their respective wards, if their title was not deemed clearly and indisputably an exclusive title, or if they were in by descent under the title of their fathers? If, indeed, a presumption of a grant is to be made, it should be of a grant conforming to the declarations and acts of possession of the parties during the whole period: and if any grant is to be presumed from the facts of this case, it is a grant of a particular estate to William, with a remainder of the |