trust was acquainted with the breach of trust, and the case of Brier v. Stokes was referred to, and the rule there laid down by the Lord Chancellor, was approved of by the Master of the Rolls, (Sir William Grant.)

The strongest dictum on this point, however, occurs in Walker v. Symonds, (a) where Lord Eldon said, "It is established by all the cases, that if the cestui que trust joins with the trustees in that which is a breach of trust, knowing the circumstances, such a cestui que trust can never complain of such a breach of trust. (b) I go further, and agree, that either concurrence in the act, or acquiescence without original concurrence, will release the trustees; but that is only a general rule, and the court must inquire into the circumstances which induced concurrence or acquiescence; recollecting in the conduct of that inquiry how important it is on the one hand to secure the property of the cestui que trust; and, on the other, not to deter men from undertaking trusts from the performance of which they seldom obtain either satisfaction or gratitude."

It may therefore be laid down, that even between trustee and cestui que trust, the whole circumstances of the case will be taken into consideration; and if, from the great length of time, or the poverty of the parties, a presumption of waiver or acquiescence can be made, it will be raised in this as in other cases.

(a) 3 Swanst. 64.

(b) See ante, p. 342.

M M

VII. PRESUMPTION OF WAIVER OF EQUITIES OF

REDEMPTION.

If a mortgagee has enjoyed the mortgaged lands for twenty years, and he has in no way acknowledged the equity of redemption subsisting in the mortgagor, the mortgagor will be presumed to have abandoned his right. (a) But if the party entitled to redeem be an infant, or labour under any other disability, the presumption will not arise until ten years after the removal of the particular incapacity. (b)

Where, also, there has been an admission of the title of the mortgagor by the mortgagee within the twenty years, the presumption of waiver will not arise.

66

In Hodle v. Healey, (c) the Vice-Chancellor (Sir T. Plumer) stated the authorities upon the point: Upon the general principle, there can be no dispute that a mortgagor coming to redeem after twenty years' possession by the mortgagee, without showing some act in which it was treated as a mortgage within that period, is too late." "It is said that Lord Thurlow's opinion was, that a mere declaration of the party, that he is mortgagee, is not sufficient, unless some act is done to keep alive the character; and the case of Perry v. Marston, (d) is cited,

but I do not collect that from Lord Thurlow's reasoning. The question there was, whether a verbal declaration by the mortgagee after a suit commenced, was to be opposed to his answer, positively setting up a distinct and separate title." Lord Kenyon's opinion was, that even under such circumstances, his mere declaration was sufficient; but Lord Thurlow, so far from concurring in that, says directly the reverse. "I take it, that a man taking notice by a will, or any other deliberate act, wherein he recites that he is mortgagee, either of those circumstances will take the case out of the rule, that a mortgagor shall not redeem after twenty years." And, in the conclusion, seems to lay down the principle, that if a party will admit that he is only a mortgagee, he is bound by such admission, and cannot resist redemption.

VIII.

GENERAL RULES AS TO PRESUMPTION OF
WAIVER.

In short, it may be laid down as a general rule, that wherever a person having a right or title to, or interest of any kind, and having perfect knowledge of it, and being fully able to enforce it, chooses to remain for twenty years quiescent, that he will be presumed to have waived his right. (a) But if the circumstances are very peculiar, or if the application of this general rule would be attended with great hardship or injus

(a) Sturt v. Mellish, 2 Atk. 610. Newton v. Ayscough, 19 Ves. 534. Pearson v. Belcher, 4 Ves. 627. South Sea Company v. Wymondsell, 3 P. W. 143. Lockey v. Lockey, Prec. Cha. 518. Ex parte Heathfield, 8

Taunt. 403. Lord Shipbrooke v. Lord Hinchingbrooke, 13 Ves. 387. Swanton v. Raven, 3 Atk. 105. Burke v. Crosbie, 1 Ball & Beatt. 489, cit. ante, p. 207.

tice, if the party labour under any disability, or if there be any other fair reason for not asserting the claim, the presumption will be rebutted.

Thus, where a legacy was bequeathed to a child, and paid by an executor to a father of an infant, the testator having directed it by parol on his death-bed; the child, on attaining his majority, accounted with the father for sums of money due to him, and suffered sixteen years to expire without making any demand for his legacy; a bill was afterwards filed by his assignee, he having become a bankrupt, for its payment, and it was ordered to be paid, and a bill to set aside that decree was dismissed. (a)

(a) Dagley v. Tolferry, 1 P. Wms: 285. S. C. Rep. Ca. in Equity, 103. nom. Dawley v. Belfry, & 1 Eq. Ca. Ab. 300. pl. 2. And see Philips v Paget, 2 Atk. 80. Dormer v. Fortescue, 3 Atk. 130.

Newburgh .v.

Bickerstaffe, 1 Vern. 295. And ante,

p. 434. As to where a waiver of a fraudulent purchase will be presumed, see ante, p. 339, 340. And as to presumption of waiver generally, see Index, word Waiver

CHAPTER XXX.

OF CERTAIN OTHER PRESUMPTIONS WHICH ARISE IN ABSTRACTS OF TITLE.

We shall now conclude the part of the work devoted to the consideration of the doctrine of presumption, by mentioning a few other points relating to it, which have not been considered in the preceding chapters, but which arise on the examination of abstracts of title.

1. Presumption on payment of charges. If a charge affecting lands is paid off by their owner, a doubt immediately arises whether he intends to exonerate the lands entirely from the charge, or to place himself in the situation of the person whose incumbrance he has discharged. Where there is no express declaration of his intention, a court of equity, by a series of decisions, has acted upon certain rules of presumption, depending on the nature of his estate, and the other peculiar circumstances of the case, by which the meaning and intention of the party is deter