No. XXV. Bury v. Bury (s), Ch. 11th July 1748. Sir Thomas Bury being seised of a freehold estate, and also possessed of a leasehold estate, on the marriage of his son, Thomas Bury, by lease and release, 3d and 4th January 1725, settled the freehold estate on himself for life; remainder to his wife for life; remainder to Thomas, his son, for life; remainder to his intended wife for life; remainder to his first and other sons in tail-male, with remainder to plaintiff for life, with remainder to his first and other sons in tail-male; with remainder over and the leasehold premises were assigned to trustees, to raise money to renew the lease, then to pay the rents to Thomas, the son, for his life; remainder to his intended wife for her life; remainder to his first and other sons; remainder to the trustees, to pay the rents to plaintiff for his life; remainder to his first and other sons, with remainders over. The marriage took effect; the wife died without leaving any issue male. Sir Thomas died. Thomas Bury, on his second marriage with the defendant, having renewed the lease, by indenture, dated 31st Dec. 1736, settled the leasehold premises to himself for life, remainder to his second wife, the defendant, for life, with remainders over; and therein taking notice, that the said Thomas Bury was seised for the term of his natural life with the power of jointuring in the said freehold lands, did, for enlarging the jointure, grant the same to her, for life, with remainders over. The marriage took effect. Thomas Bury died without leaving any issue male, either by his first or second wife; so that the plaintiff became entitled to the leasehold premises, by virtue of the settlement made on Thomas Bury's first marriage. The bill was brought against the second wife for an account of the rents and profits of the leasehold premises, and to have all deeds and writings relating thereto delivered up. The defendant denied that she had any notice of the deeds 3d and 4th Jan. 1725, or that there was any settlement of the leasehold premises, or that any such deed was delivered to her with the rest of the writings. There was only one witness who had proved he had been employed to look over the title for Thomas Bury and defendant; and that amongst the papers he had seen a foul draft of the former settlement, and that there was no power of jointuring in the leasehold premises, which he told Thomas Bury of. Lord Chancellor.-There are two questions: 1st, Whether she had notice? 2dly, if no notice, Whether she can protect herself under the lease renewed by her husband? As to the 1st, there is no positive evidence of notice: she denied it by her answer, and there being only one witness against that answer, a decree cannot be made upon that one witness's testimony. Where an agent has been employed for a person in part, and not throughout, VOL. II (s) Vide supra, p. 1042, 1056. [*1128] yet that affects the person with notice: here the recital in the deed of the power of jointuring was sufficient to have made defendant have inquired into it, and therefore shall affect her. In Le Neve v. Le Neve she admitted Norton was her agent; and so that differs from this case. As to the 2d, There was no surrender of the former lease, for the legal estate was in trustees, and therefore the Court is to judge only as between cestui que trusts; and though the lease was renewed by T. Bury, yet it must follow the trust of the whole term, and he can have no contribution for what he paid, for he enjoyed it during his life. If a lease or deed is wrongfully given up or destroyed, you may give evidence of the purport of the deed, or have a discovery from the grantors. Decreed, that no alteration was made in the former trusts by Thomas's renewal of the lease. No. XXVI. OF PRESUMING A SURRENDER OF TERMS. 1. Presumption where trustees ought to convey. 20. Doe v. Subourn. 21. Objection against the presumption. 2. Not where jury find the term still 22. Trustees ought not to surrender. continues. 3. Policy of the law: nature of a term. 5. Presumption of surrender of term as- 9. The like on a purchase of the heir's 10. Analogy of doctrine of casements. 13. Of the assignment being by a repre sentative. 14. Former practice as to assignments. 18. Goodtitle v. Morgan. 1. WHERE trustees ought to convey to the beneficial owner, it will, upon a trial, be left to the jury to presume, where such a presumption may reasonably be made, that they have conveyed accordingly, in order to prevent a just title from being defeated by a matter of form (t). 2. But where the trustee of a term is not joined in an ejectment brought by his cestui que trust, and the jury state in a special verdict, or a special case, that the term still continues, the plaintiff cannot prevail at law, but will be defeated by the legal estate in his trustee (u), This must inevitably happen where a term of years has been assigned to attend the inheritance upon a purchase of the fee, and the purchaser brings an ejectment in his own name only. It were clearly too much to presume a surrender of a term which the owner has so anxiously kept distinct from the inheritance (x). This was so stated in the last edition of this work; but the point has since undergone much discussion, and the leading heads of the argument, and the present state of the law on this head, must now be retraced (I). 3. It has long been the policy of our Legislature to encourage the free alienation of real property, and secure the titles of bona fide purchasers. Our statute book abounds with laws having this tendency. The same spirit pervades the common law. We are told that the maxims of the common law, which refer to descents, discontinuances, nonclaims and collateral warranties, are only the wise arts and intentions of the law to protect the possession and strengthen the rights of purchasers. A purchaser is a favorite of a court of equity. It is the settled law of that court, that if a man buy an estate fairly he may get in a term of years, or other incumbrance, although it is satisfied, and thereby defend his title at law against any mesne incumbrance of which he had not notice. It were idle to discuss the policy of our law. In a commercial country like ours, where one great stimulas to enterprise in commerce is the hope to possess territorial ownership, every one is interested in the free interchange of property, and the safety of purchasers. The danger of latent incumbrances renders it necessary that every possible guard should be thrown around purchasers. The policy of the law in this respect led to the received doctrine as to terms of years attendant on the inheritance. Abstractedly considered, nothing can be more absurd than that a purchaser of the fee should procure a term of years, created a century ago, to be assigned to a trustee for him. But with reference to the protection to be derived from such a term of years, it is of the deepest importance to a purchaser that he should keep it on foot. At law, every term of years in a trustee is a term in gross. This, which was distinctly laid down by Lord Hardwicke (y), should never be lost sight of. The moment that a court of law acts upon the term as a part of the inheritance, it strikes at the root of the settled doctrines of centuries, shakes the landmarks of the (t) Lade v. Holford, Bull. Ni. Pri. 110, as explained in Doe v. Sybourn, 7 Terin Rep. 2; and Roe v. Reade, 8 Term Rep. 118; and see Doe v. Staple, 2 Term Rep. 634; Tankard v. Wade, Irish Term Rep. 162; and Hillary c. Waller, 12 Ves. jun. 239; supra, p. 527, pl. 76. (u) Goodtitle v. Jones, 7 Term Rep. 47; Roe v. Reade, 8 Term Rep. 118; and see Doe v. Staple, 2 Term Rep. 684. (x) See Doe v. Scott, 11 East, 478. (y) 1 Term Rep. 765. (I) This was the statement in the 6th edition. law of real property, and renders insecure the title of every purchaser in the kingdom. Our law permits the creation of terms of years for any period of time. Where a term, whether for one hundred or ten thousand years, is created by way of use, it invests the person to whom *it is granted with a legal right to the estate during the period specified. It is not necessary by our law, that possession should accompany the legal estate in order that the title of the legal owner should continue unbarred. Possession by my tenant, or by a person with my permission, or acknowledging my title, is in law possession by me, and during such tenancy or holding my title remains unimpeached; therefore, although the legal owners of the fee of an estate have enjoyed it for the last one hundred years, yet that will not affect the existence of a term of years in the trustee to attend the inheritance, because the possession of the legal owner of the fee is the possession of the termor; their titles are consistent, and support each other (I). The owner of the fee is as a tenant at will to his own trustee. It frequently happens that the owner of the fee is indebted to the term of years for his peaceable possession; such a possession, therefore, operates as continual acknowledgment of the legal title of the termor, and proves its efficacy. The term is anxiously assigned to attend the inheritance; it does accordingly attend the inheritance; and the performance of the very service for which it was created never can be a ground for defeating its legal operation. Upon principle, therefore, a term of years assigned to attend the inheritance ought not to be presumed to be surrendered unless there has been an enjoyment inconsistent with the existence of the term, or some act done in order to disavow the tenure under the termor, and to bar it as a continuing interest. This has always been the received opinion of the Profession, and particularly of that class of the Profession to whom titles are more particularly referred. It matters very little what is the opinion of any individual conveyancer; but the opinion of the conveyancers, as a class, is of the deepest importance to every individual of property in the state. Their settled rule of practice has accordingly, in several instances, been adopted as the law of the land, not out of respect for them, but out of tenderness to the numerous purchasers who have bought estates under their advice. 4. As judgments, and other incumbrances, are infinite, and it is impossible to rely even upon searches for them, the doctrine, that a term of years attendant on the inheritance should protect a purchaser against incumbrances of which he had not notice, was long since established. This rule of property was shaken in the time of Lord Mansfield, when the courts of law broke down the boundary between them and courts of equity; but the barrier has since been restored, and equitable doctrines are no longer acted upon in courts of law. B 5. Now, with a view to discuss at large the doctrine of presuming a surrender of a term assigned to attend the inheritance, let us suppose a term of years to be created in the year 1700, by way of mortgage. buys the fee in 1760, and pays off the mortgage, and the term is assigned to a trustee for B, his heirs and assigns, and to attend the inheritance. B lives till 1819, without disturbing the term, or in any manner recognizing its existence. Can it be contended that a surren (I) See now the 3 & 4 Will. 4, c. 27. der of the term should be presumed? Was not B's possession consistent with the existence of the term immediately after the assignment in 1760? If so, when did it become adverse to it? What necessity was there for any act recognizing the existence of the term whilst B's continued possession was consistent with the term, and was supported *by the trust upon which it was assigned? If the term ought to have been recognised from time to time, how often should this act be repeated; once a week, or once a month? Is there any ground upon which, in 1819, a surrender can be presumed on the strength of B's possession, which would not be equally operative the first week, nay, the first day after the purchase in 1760? In the absence of evidence of a surrender, it is impossible, on any sound principle, to presume on; unless the precise instant can be pointed out when the owner of the inheritance was desirous no longer to have the benefit of the term. Without his presumed concurrence a surrender cannot be presumed; for the trust was not to surrender the term, by which mesne incumbrances might be let in, but expressly to keep it on foot, in order to exclude them. A surrender by the trustee, therefore, without the direction of his cestui que trust would be a breach of trust. It is said that the expense of making out a representation to a termor makes the term a burden instead of a benefit to the owner of the fee. It is not, however, denied that the owner of the fee may keep on foot a term attendant on the inheritance, and that no court of law can control his power to do so. Where he has exercised his power, and declared, without any limitation of time, that the term shall be attendant on the inheritance, and be in trust for him, his heirs and assigns, does not this mean that the inheritance shall be so attended during all the years to come in the term?—and if it do, what power has a court of law out of a morbid compassion for him, on account of the expense which it may occasion, to presume a surrender of the term which he has so anxiously kept on foot particularly as at the very moment that a surrender of the term is presumed, its existence may be required to protect the estate against a latent incumbrance; and the Court has no means whatever to ascertain whether there is any such incumbrance. The amount of the expense, too, must depend upon the particular circumstances of each case: and yet it would hardly be desirable that the rule should depend on the quantum of expense which an assignment would occasion. If, however, expense is to be adverted to, on that ground alone surrenders should not in such a case be presumed; because that doctrine would weaken a purchaser's reliance on any given term of years; he would in almost every case search for judgments. This could not be done without expense; and where a man has been in the habit of confessing judgments, it very seldom happens that satisfaction is entered upon them when they are paid off. This leads to great expense, and difficulty in practice; because a purchaser expects the judgments to be regularly discharged; and where even a few years have elapsed since the payment of the debt, if the creditor is living and can be traced, yet he hesitates to do any further act in relation to a transaction which he considered long since closed (I). 6. If the surrender of the term cannot be presumed at B's death, in 1819, we will suppose the estate to descend to B's heir at law. (I) See now 2 Vict. c. 11, and supra, ch. 12, s. 1, p. 652. Now |