CHAPTER IV. OF THE COMMENCEMENT OF ABSTRACTS OF TITLE. EVERY abstract of title to real property must commence at the least sixty years back, and no purchaser can be compelled to take a title which commences earlier, because the Statute of Limitations cannot in a shorter period confer a title. (a) This period is fixed from analogy to the 32 Hen. VIII. c. 2. s. 1, limiting the term for bringing a writ of right. If it be possible, the abstract should commence with a purchase deed, will, or settlement, by which it appears that the person from whom the title was derived was seised in fee. In some instances it will not be sufficient to show simply a title of sixty years, but a title prior to that period must be produced. Thus if the abstract commences with a recovery deed, or any other instrument relating to an estate (u) Paine v. Meller, 6 Ves. 351. 32 Hen. VIII. c. 2. 21 Jac. I. c. 16. And see Barnwell v. Harris, 1 Taunt. 430. Sug. V. & P. 304, 8th edition. Fort v. Clarke, 1 Russ. 601, stated post. tail, it will be proper to show the creation of the estate tail which is barred by it; although the non-production of this evidence will not render the title invalid. (a) So if a title commences with a fine, by which an estate tail is barred, the creation of the estate tail should be shown. A fine should only be adopted when the tenant in tail is also seised of the remainder or reversion in fee; in which case, unless a purchaser can show the existence of some incumbrances on the remainder or reversion, which of course would not be barred by the fine, but accelerated, he must accept the title under the fine with proclamations, and cannot insist on a recovery, (b) unless he will pay the expense of it. When a title commences with a fine and a deed to lead the uses, for the avowed purpose of barring an entail, and no estate tail appears to exist, it would seem that if there was in fact no estate tail, the title would not be bad on this account. (c) Thus, also, if it commences with an appointment, the deed or will creating the power must be shown, in order to prove the due execution thereof; but if the recital of the deed or will is full and satisfactory, this, in default of other evidence, may be deemed satisfactory. (d) If the property is derived from the grant of the crown, the original grant should be shown, in order that it may be seen that there is no remainder or reversion reserved by the crown, which, it is to be remembered, cannot be barred by recovery. But the vendor need not show the intermediate deeds, &c. be (a) Coussmaker v. Sewel, Sug. V. & P. App. Nouaille v. Greenwood, Turn. 26. (b) Sperling v. Trevor, 7 Ves. 497. (c) 1 Prest. Abs. 257. (d) 1 Prest. Abs. 7, 249. F tween the grant and the period at which, by the ordinary rules of practice, the evidence of his title should commence. (a) If the abstract commence with a settlement, which is made in pursuance of articles, it is proper to call for the articles, that it may be seen whether the settlement is in conformity with them. Where an old deed recites prior deeds, and the seller is unable to procure the instruments recited, the true inquiry is, whether the absence of the deeds recited throws any reasonable doubt upon the title. Where there is a sixty years' title without the aid of the recited deeds, and no circumstance to repel the presumption in favour of the title, the court will compel the purchaser to accept it. (b) Where the abstract commences with a settlement under which a wife claims as tenant in tail, the prior title should be shown, in order that it may appear that the wife was the owner of the lands, and not tenant in tail ex provisione viri, in which case she could not bar the entail, unless the heirs inheritable under the entail should join in the recovery. (c) Where the abstract commences with an execution of a trust, the deed creating the trust should be produced. (d) If the parcels are described as purchased of a particular person, it is usual, if practicable, to show the purchase deeds, to make out the description of the parcels. (e) Where a title is derived through a long chain of descents, the property having remained for a con (a) 1 Prest. Abs. 5. 30. 250. and post. (b) Prosser v. Watts, 6 Mad. 59. (c) 11 Hen. VII. c. 20. (d) 1 Prest. Abs. 9. (e) 1 Prest. Abs. 19. siderable time in the same family, it is sometimes necessary to go back for a longer period than sixty years, for the purpose of ascertaining the first purchaser. (a) If the first deed in the abstract refer to a person claiming as devisee, inquiry should be made for the will under which he derives his title. So also, wherever a will is referred to, unless it is of very ancient date, its production should be required. (b) In short, wherever an abstract does not commence with a deed or will, conveying or devising the premises to the original purchaser or devisee, from whom the title originates, in fee, but refers to some prior circumstance or document, it will be proper to extend the usual period of inquiry, because such reference will be notice to the purchaser or mortgagee of the contents of the documents so referred to. (c) And in one case, where a will eighty years old was discovered after the purchaser had accepted the title, and whereby the title was supposed to be affected, it was referred to the Master to consider what effect this will would have upon the title. (d) In some instances, a title, extending back only sixty years, may be clearly defective. Thus if successive estates tail be created, with remainder or reversion in fee, and a fine has been levied by the first tenant in tail, from whom the title is derived, although the title may be good as against one or more of the tenants in tail, it will be defective as to (a) 1 Prest. Abs. 22. and post. (b) 1 Prest. Abs. 250. 264. (c) Moore v. Bennett, 2 Cha. Ca. 246. Ferrars v. Cherry, 2 Vern. 384. Mertins v. Jolliffe, Amb. 311. Taylor v. Stibbert, 2 Ves. Jun. 437. Daniels v. Davison; 16 Ves. 249, 17 Ves. 433, S. C. Allen v. Anthony, 1 Mer. 282. Knatchbull v. Grueber, 3 Mer. 137. and ante, p. 42. (d) Const v. Barr, 2 Mer. 57. the more remote estates; for each tenant in tail and his issue, and also the owner of the remainder or reversion in fee, will be allowed a period of twenty years from the determination of the prior estate, for the purpose of asserting his respective right; and if he labour under any disability, a further period of ten years. (a) And in particular species of property, as advowsons in gross, and titles, it will be necessary to produce a more ancient title than sixty years, as they are subject to no statute of limitation. (b) Sometimes the first deed in the abstract is of a date falling within the period of sixty years; but the history of the title is traced through a period of that duration, by showing, either from the recitals, or from a short history of the title in the description of the parcels, or from the assessments to the land-tax, or from a schedule of title-deeds, that the ownership on which the title depends commenced upwards of sixty years since. And this, in general, is deemed satisfactory by conveyancers, especially after an inquiry for wills, settlements, &c., as far as that inquiry can reasonably be prosecuted, or where the property is small. (c) And these recitals may the more readily be depended upon, where the lands were parcel of a large property, and the nature of the transaction leads to the conclusion that the deeds remain in the hands of the former proprietor, or were delivered to the purchaser of a larger estate, or where the deeds themselves have been destroyed by fire. (d) (a) 32 Hen. VIII. c. 2. 1 M. St. 2. c. 5. s. 4. 21 Jac. 1. c. 16. s. 2. Sug. Vend. 304, 8th ed. (b) Id. ib.; and see post. |