Ground for presuming deeds, -and other ⚫ matters, From uninterrupted and long-continued possession, the existence of deeds and other suitable conveyances and all acts necessary to give them validity may be presumed. Such possession, however, creates only a presumption of fact and not of law, and is therefore always and in each particular case which may arise merely evidence of a grant or conveyance, not absolutely conclusive in itself, but to be weighed and considered by those whose duty it is to decide the issue to be determined (n). Enjoyment under a title which can only be by record is strong evidence to be left to a jury that it did once exist (o). So a charter, after a usage of 350 years (p); a grant by the Crown in support of the title to an advowson (q), evidenced by deeds for nearly 140 years with three presentations by the possessors and none by the Crown (r); or resting upon possession and user for only thirty-five years (s); the extinguishment of feefarm rents of the Crown after the lapse of 110 years without any payment of them (t), and the existence of a deed and of its execution by the Crown in the reign of Elizabeth (u), have been presumed, but only where the issue has been between subject and subject, and not against the Crown where the issue has been between. the Crown and a subject (v). So also the induction of the incumbent of an ecclesiastical benefice, and the reading by him of the Thirty-nine Articles, after a possession by him for fifteen years, and in the absence of proof to the contrary, have been presumed (x), omnia præsumuntur ritè esse acta (y). (n) 11 Gray's Amer. Rep. 36. (p) Mayor of Hull v. Horner, (q) Bedle v. Beard, 12 Co. 45. W. 159. (8) Trotter v. Harris, 2 You. & Jer. 285. (t) Simpson v. Gutteridge, 1 Mad. 609. (u) See Att.-Gen. v. The Dean and Canons of Windsor, 24 Beav. 679. (v) Vide ante, pp. 94, 95. (x) Powell v. Milburn, 3 Wils. 355; Chapman v. Beard, 3 Anstr. 942. (y) On Presumptions generally, But possession, although of long duration, ought to be consistent with the fact to be presumed. Thus a conveyance was not presumed where the original possession was accounted for, and was consistent with the fact of there being no conveyance, and had continued longer than was consistent with the original condition (z). So where a defendant in ejectment proves no right to the possession, no title, no conveyance, but rests on his own mere naked possession without any evidence how or when he acquired it, no presumption is to be made in his favour (a). So where the person to make a grant cannot lawfully make it (b), or might have been unable to interrupt or to prevent the exercise of the subject of the proposed grant (c), or the exercise of what is called a right (d), no grant by such person will be presumed. And a deed will not be presumed within a less time than that which is fixed by the Statute of Limitation for a bar to the claim (e). We are not, however, to presume so much as to Extent of predestroy the whole law: for, if upon mere possession support possumption to everything is to be presumed to maintain that posses- session. sion, there was no necessity for the Statute of Limitation (f). It will be better for every person in possession to burn his title deeds and rest wholly on presumption. In the case of the Crown and of the Church there was, and in some matters, as will be hereafter shown, still is, a maxim standing in the way. Nullum tempus occurrit regi aut ecclesiæ (g). Lord Denman, C. J., allud- Acts of parlia their classification, nature and application, see Mr. Best's excellent Treatise on the Principles of the Law of Evidence. (2) Doe d. Fenwick v. Reed, 5 B. & Ald. 232. (a) Doe d. Hammond v. Cooke, 6 Bing. 174. (b) Goodtitle v. Baldwin, 11 East, 488; Barker v. Richard20, 4 B. & Ald. 579; Mill v. Commissioner of New Forest, 18 C. B. 60. (c) Chasemore v. Richards, 7 H. of L. Cas. 349. (d) Webb v. Bird, on Error in Exchequer Chamber, 13 C. B., N. S. 844. (e) See Eldridge v. Knott, Cowp. 214; Rees v. Lloyd, 1 Wightw. 123; Doe d. Wilkins v. Marq. Cleveland, 9 B. & C. 864. (f) 3 Gwill. 1176; 1 Mad. 245. (g) Vide Book I. Chap. II. Sects. I. and II.; Chap. IV. of this Book. . ment. Grants from the Crown. General effect ing to the dicta of some great judges, that they would presume even an act of parliament, if necessary, in support of an ancient usage, said (h), "Even this strong presumption it might not be unreasonable to make where the usage has been such as nothing but an act could legalize, and has prevailed in those obscure ages in which, not only the records of parliament may have been negligently kept, but even the form of a parliament itself is scarcely to be discerned. But no judge would venture to direct a jury that they could affirm the passing of an act of parliament within the last 250 years on an important subject of the most general interest, of which no vestige can be found on the parliament roll, in the journals of either house of parliament, in the numerous treatises of enlightened authors, devoting unwearied industry and the greatest accuracy to similar inquiries, or in the history of the country." When the real origin of a right is shown and clearly ascertained, and that origin negatives the presumption, nothing is ever, or can be, presumed to the contrary of that which is established by evidence (i). A grant therefore from the Crown appearing on evidence to be enrolled of record, but not produced, cannot be presumed upon mere evidence of user (k). "Uniform possession," said Lord Lyndhurst, C. (1), of possession. «during a long series of years, establishes a title. That is a great principle in our law, and in the law of every civilized country—a principle which we have drawn from the wise jurisprudence of ancient Rome. . . . . If a party has obtained possession of property, even by a flagrant act of violence, yet, if he be allowed to continue in the uninterrupted possession of that property for a long series of years-indeed, for not a long period (h) Reg.v. The Pres. and Chap. of Exeter, 12 Ad. & E. 512. (i) Per Sir J. Romilly, M. R., 17 Beav. 464. (k) Brune v. Thompson, 4 Q. B. 543. (1) Debates in D. P. on the Dissenters' Chapel Bill, 1844. according to our present law-his title becomes abso- In naked possession, the probability that the pos- Benefits to the sessor has the property is no greater than that he has it possessor of things corponot. But there is a possibility of property in him, and real. this possibility confers on him benefits in matters of fact, in suing and in being sued. The presumption of law is, that he has the property (m), and the possession is evidence (n), but only evidence (o), of property; and, no other evidence appearing in proof, evidence of ownership in fee (p). If, said Mr. Justice Story (q), a person be found in possession of land, claiming it as his own, in fee, it is primâ facie evidence of his ownership and seisin of the inheritance. But it is not the possession alone, but the possession accompanied with the claim of the fee, that gives this effect, by con (m) 7 Mee. & W. 595; 5 Ell. & Bl. 806. (n) 1 Ad. & E. 121; 8 Ad. & E. 879; 5 Ell. & Bl. 806; 13 Q. B. 953. (0) 7 Mee. & W. 312; 8 Ad. & E. 879. (p) 9 Rep. 27 b; Rowe v. Grenfel, Ry. & Moo. 396; 1 Hare, (q) 5 Curt. Amer. Rep. 224. struction of law, to the acts of the party. Possession, per se, evidences no more than the mere fact of present occupation by right, for the law will not presume a wrong; 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 coextensive with his right. This is the doctrine of Littleton (r). Although, therefore, mere possession be for less than twenty years, yet the land goes to the heir or the devisee of the possessor, and not to his executor(s). The presumption of law just mentioned cannot be rebutted by evidence, offered as a defence by a person admitting himself to have no title, and to be a wrongdoer on acquiring the possession, that the property was in a third person (t), but may be rebutted by evidence so offered by a person in possession not merely as a wrongdoer (u). (r) Sect. 695. (s) Doe d. Pritchard v. Jauncey, 8 Car. & P. 99; Asher and Ux. v. Whitelocke, L. R., 1 Q. B. 1; 35 L. J., N. S., Q. B. 17; 14 W. R. 26, S. C.; Clarkev. Clarke, (t) 5 El. & B. 806. (u) Doe d. Carter v. Barnard, 13 Q. B. 945. |