The Practice of Conveyancing

whole of that period, its surrender will be presumed ; (a) and if in the mean time the estate has been frequently mortgaged or sold, the presumption will be strengthened. (b)

It is impossible, in this state of the authorities, to lay down a positive rule as to the presumption of a surrender of a term. But, it may be observed, that although it be perfectly clear, that the courts of common law were originally incorrect, in disregarding the practice of conveyancers, yet as they have, with a full knowledge of all the circumstances, persisted in adhering to their own doctrines, it becomes necessary that conveyancers should submit, and regulate their practice accordingly; particularly as these doctrines have certainly been received with considerable favour by the present Master of the Rolls, (Sir John Leach) in the cases to which we have before referred. (c)

The lapse of twenty years, however, unless supported by other circumstances, will not, in general, be a ground for presuming the surrender, even of a satisfied term. (d)

54.

(a) Emery v. Growcock, 6 Madd.

(b) Ex parte Holman, Sug. V. & P. 447. 8th edit.; and see Cook v. Soltau, 2 Sim. & Stu. 154, ante,

p. 450.

(d) Doe v. Calvert, 5 Taunt, 169. Doe d. Hall v. Surtees, 5 B. & A. 687. Cholmondeley v. Clinton, 2 Mer. 171.

CHAPTER XXVII.

OF THE PRESUMPTION OF CERTAIN ASSURANCES AND DOCUMENTS OF TITLE, AND THE CEREMONIES NECESSARY TO THEIR VALIDITY.

WE have now to mention the rules as to the presumption of certain other assurances and documents of title, not strictly coming within the three preceding chapters, and of the ceremonies necessary to their validity. It will be convenient to divide the present chapter into the following sections: I. Presumptions of assurances and documents of title; and II. Presumptions of the ceremonies necessary to their validity.

I. PRESUMPTION OF ASSURANCES AND DOCUMENTS

OF TITLE.

1. Licence.-Adverse possession for a shorter period than twenty years, will not of itself afford a ground for presuming a grant; and there ought to be some

But a

other evidence in support of the right. (a) licence may be presumed within that time. Thus in an action of ejectment, to recover part of a waste enclosed by the defendant, where it was proved that the steward of the lord of the manor had from time to time seen the inclosure which had been made nearly thirteen years, without making any objection, this was held to be evidence from which the jury might presume a licence from the lord. (b)

Where the supposition of a grant from the crown is rebutted, a licence to occupy will be presumed, if possible, to give validity to a long enjoyment of nearly sixty years standing. (c)

2. Releases. Where a quit rent is claimed by a lord of a manor, proof by the tenant that no demand had been made upon him for it for thirty-four years, was held to be not a sufficient ground for presuming a release or extinguishment, and that no such presumption could be raised within less than fifty years, which is the period fixed by the Statute of Limitations, 32 Hen. VIII. c. 4, s. 4, because for the extinguishment of a rent charge, a deed is necessary. (d)

Formerly the mere neglect to receive rent did not prejudice the right to it. (e) But this rule is now altered, and if there has been no demand of rent for fifty or sixty years, a release will be presumed. (f)

(a) 6 East. 215; 4 Burr. 1963; and ante, Chap. XXIV. passim.

(b) Doe d. Foley v. Wilson, 11 East. 56. And see ante, pp. 277, 278.

(d) Eldridge v. Knott, Cowp. 214. (e) Co. Litt. 115 a; and Harg. n. 5. (f) See Read v. Brookman, 3 T. R. 151; 2 Scho. & Lef. 106. Simpson v. Gutteridge, 1 Madd. 609. As to when satisfaction of rent will be presumed, see post. Chap. XXVIII. p 493.

3. Copyhold Assurances.-Where there has been a long possession, as of forty years, or even a smaller period, of copyholds under a devise, it will be presumed that a surrender has been made to the uses of the will. (a)

So, also, an admittance to copyholds, in pursuance of a previous surrender, will be presumed after a long enjoyment of the lands, as of forty years or a smaller period, especially if the surrenderee has paid the rents or performed the services relating to them. (b)

4. Fines and Recoveries.-Fines and recoveries cannot, it seems, be presumed without evidence directly pointing or alluding to them; (c) but they have been long considered as mere common assurances founded on the agreement of the parties; and where the persons interested to set aside a recovery have had opportunities to prefer their objections, but instead of doing so have acquiesced, and not attempted to dispute its validity, a presumption fairly arises that the usual and proper means were employed to render it effectual. (d)

5. Acts of Parliament.-In order to support and confirm long possession, acts of parliament will it seems be presumed, (e) as well in respect of public as private rights, if there be the proper evidence to sup

(a) Lyford v. Coward, 1 Vern. 195. S. C. 2 Cha. Ca. 150. Knight v. Adamson, 2 Freem. 106. Wilson v. Allen, 1 Jac. & W. 611.620.

(b) Blunt v. Clark, 2 Sid. 61. 1 Roll. Ab. 505. X. 3 Bulst, 239. Dy. 292 a, pl. 9, and cases in note (a).

(d) Per Lord Mansfield, 2 Burr.

1073.

(e) 1 Eden. 296; Cowp. 215; 6 East, 215; 2 Ves. jun. 583; 1 Jac. & W. 63. Hillary v. Waller, 12 Ves. 239; ante, p. 440.

port the presumption. (a) And it is quite clear that a private act may be presumed. (b)

5. Reservation.-A reservation of peculiar rights will sometimes be presumed. Thus if there has been a long uninterrupted enjoyment (as of fifty years) of a right to enter upon lands, and open and work mines situate thereunder, or to cut and carry away timber, a reservation will be presumed, and this presumption will be resorted to when, from the nature of the right and its peculiar circumstances, a grant cannot be presumed. (c)

II. PRESUMPTION OF CEREMONIES NECESSARY FOR THE VALIDITY OF DEEDS, &c.

1. Signing, &c.-The solemnities required by law to give validity to the ordinary instruments of assurance, as signing, sealing, and delivery, will be presumed in the absence of evidence to the contrary. Thus, the fact of sealing will be presumed, and this not only in cases where the deed is lost or torn, but also where no mark or impression on the parchment or paper appears, provided only the attestation notices the solemnity to have been complied with; because the use of wax or wafer is not necessary in sealing; it is sufficient if the seal, stick, or other instrument be impressed on the plain parchment or paper with intent to seal. (d) So

(a) Rex. v. Mountague, 4 B. & C. 598. 605.

(b) Farrar's case, Skin. 78; 12 Vin 58, pl. 11. S. C. Pickering v. Lord Stamford, 2 Ves. jun. 271. S. C. 4 B. C: C. 214.

36.

(d) Sug. Pow. 236; Matt. on Pres.

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