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Ricard

Williams

1822. ces n0 more than the mere fact of present occupation, by right; for the law will not presume a wrong; v." and that possession is just as consistent with a present interest, under a lease for years or for life, as in fee. From the very nature of the case, therefore, it must depend upon the collateral circumstances, what is the quality and extent of the interest claimed by the party; and to that extent, and that only, will the presumption of law go in his favour. And the declarations of the party, while in possession, equally with his acts, must be good evidence for this purpose. If he claims only an estate for life, and that is consistent with his possession, the law will not, upon the mere fact of possession, adjudge him to be in under a higher right, or a larger estate. If, indeed, the party be in under title, and by mistake of law, he supposes himself possessed of a less estate in the land than really belongs to him, the law will adjudge him in possession of, and remit him to, his full right and title. For a mistake of law shall not, in such case, prejudice the right of the party, and his possession, therefore, must be held co-extensive with his right. This is the doctrine in Littleton, (s. 695.) cited at the bar ; and better authority could not be given, if, indeed, so obvious a principle of justice required any authority to support it. But there the party establishes a title in point of lawgreater than his claim ; whereas, in the case now supposed, the party establishes nothing independent of his possession, and that qualified by his own acts and declarations. This is the distinction between the cases, and accounts at once for the different ,822

principles of law applicable to them. Ricard

It has also been argued at the bar, that a person J: who commits a disseisin cannot qualify his own

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wrong, but must be considered as a disseisor in tee. th« general rule This is generally true ; but it is a rule introduced for cannot qualify the benefit of the disseisee, for the sake of electing his remedy. For if a man enter into possession, under a supposition of a lawful limited right, as under a lease, which turns out to be void, or as a special occupant, where he is not entitled so to claim, if he be a disseisor at all, it is only at the election of the disseisee." There is nothing in the law which prevents the disseisee from considering such a person as a mere trespasser, at his election ; or which makes such an entry, under mistake for a limited estate, a disseisin in fee absolutely, and, at all events, so that a descent cast would toll the entry of the disseisee. But, were it otherwise, in order to apply the doctrine at all, it must appear, that the party found in possession entered without right, and was, in fact, a disseisor ; for if his entry were congeable, or his possession lawful, his entry and possession will be considered as limited by his right. For the law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which, is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty,

a Com. Dig. Seisin. F. 2. & F. 3. 1 Roll. Abrid. 662.1. 45. Id. 661./. 45.

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1822. 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 arguedy 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, ei-
ther 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.
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.
There is no difference in the doctrine, whether the
grant relate to corporeal or incorporeal heredita-
ments. 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 posses-
sions. 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 admis-
sion of an existing adverse title in, the party in pos-
session. They may, therefore, be encountered and
rebutted by contrary presumptions; and can never
fairly arise where all the circumstances are perfect-
ly consistent with the non-existence of a grant :

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w. Williams.

Presumption of grants, grounds on which it rests, and to what applicable.

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1822. 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 analo

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pants, how far pr0US to those of the statute of limitations, in cases

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to^hosrlT?" wnere the statute does not apply. But where the ta1'ons0f '""'" statute applies, it constitutes, ordinarily, a sufficient 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. ». 2. p. 126. Foley v. Wilson, 11 East, 56.

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