the dislike, disfavour, and discouragement constantly shown to the writ, and the jealousy with which the proceedings were watched (z). Very great difficulties also attended the proceedings, and the courts, although they would aid a demandant in any difficulty arising therein by the act of God, acting on the maxim, Actus Dei nemini facit injuriam (a), almost invariably refused him any aid for correcting any of his own errors therein (b). Wood, B., indeed, is said to have had always a bias on the subject of amending writs of right (c), and is reported to have said on one occasion that he could not agree that writs of right were to be discouraged by the judges, while they remained part of the law of the land, and that he was not for holding it so strict, but that the rule to amend was sometimes to be allowed (d). This bias, if, on the grounds assigned by the learned judge, his view can be properly so designated, has been shared by another distinguished judge in a still later case, and on similar grounds but more explicitly stated. Thus, Best, C. J., said (e), "Whilst the law allows writs of right to be brought at any time within sixty years from the accruing of the title, judges cannot assent to the argument, that all such writs are vexatious, and that the courts should take advantage of any accident to prevent the demandant's proceeding. Judges have no authority to defeat a legal right, because they think it ought not to be insisted on. If a law be inconvenient or unwise, I am not for defeating it by indirect means. Let the full force of its inconvenience be felt, and then the legislature will alter it in a proper manner." (z) Slade v. Dowland, 2 Bos. & P. 570; 1 N. R. 66; Jennings v. Earl Howe, 5 L. J., N. S., Ch. 12, 14; Miller v. Miller, 2 Scott, 116. (a) Tooth v. Bagwell, 3 Bing. 173. (b) Adams v. Radway, supra; Worley v. Blunt, supra; Jennings v. Earl Howe, supra. (c) 9 Bing. 642. (d) 1 Roscoe, Real Prop. Actions, 179. (e) Tooth v. Bagwell, supra. Why amend ment refused. Disregarded as to equitable claims. Right of entry existing after sixty years. A title for sixty years generally accepted. The principal ground for not permitting an amendment in a writ of right was that it would tend to relax that vigilance which ought always to attend the assertion of contested claims; for it is essential to justice that the claimant should, if possible, come to the court within such time as his opponent may reasonably be expected to be furnished, if at all, with the evidence on which he may defend his right (ƒ). As regards the limitation of time applied to claims of an equitable nature courts of equity never regarded writs of right, or writs of formedon, or others of the same nature, but constantly acted upon the statute of James (g). Notwithstanding these old Statutes of Limitation and the considerations in connection with them here noticed, however, after an adverse possession of sixty years by which the highest remedy, the writ of right, was barred, under some circumstances a right of entry might still be put in force (h). Thus the possession might be by or against the owner of an interest less than the fee by virtue of such interest, and might continue for more than sixty years without effect upon the subsequent interests (i). The general rule, however, has always been that a title should be shown for at least sixty years, and when so shown, and supported by proper documentary evidence, and accompanied by possession consistent with such evidence, and the evidence is free from inference Cautions when impeaching, such title is generally accepted (k). If a resting on mere title for that period rest upon mere possession, unacpossession. companied by any such evidence, a rigid and jealous investigation is essential for the protection of a pur (f) Worley v. Blunt, 9 Bing. 635. (g) Per Lord Redesdale, Cholmondeley v. Clinton, 2 Jac. & W. 1, 192. (h) Bevil's case, 4 Co. 8, 11 b; 1 Pres. Ab. 21; 1 Real Property Rep. p. 40. (i) 1 Pres. Ab. 250, 251, 267. (k) See Hayes on Conv. 442, 4th ed. chaser. The possession may have originated by or against a person having only a particular estate, which may be still in existence, and the title, good primâ facie, may prove, on the production of the earlier evidence of it, defective (1). But in the absence of such evidence a purchaser will be compelled to take even such a title (m). The precautions, however, formerly taken with such titles for the safety and protection of the purchaser are no longer available (n); for fines and recoveries have been abolished (o), the Statute of Fines (p) has been practically repealed, a feoffment deprived of its tortious operation (7), and increased jealousy and vigilance in the investigation of such a title are therefore now demanded on the part of a purchaser. perfect. This period of at least sixty years is the approved A title for less technical rule among conveyancers (r), and a title shown period is imfor only forty-three years was considered by Lord Eldon (s) as undoubtedly imperfect and unquestionably not satisfactory. When a title is shown for this period, mere suggestions of probable or possible grounds of claim in other persons (t), or of suspicion of fraud (u), or of doubts or rumours of defects (a), under circumstances existing more than sixty years ago, and which, if well founded, would affect the title, were and are disregarded. Moral, and not mathematical, certainty must govern (y). The rule not affected by suggestions of defects, &c. Various reasons for this rule that the title was to be Reasons for (1) 1 Pres. Ab. 247. (n) Ib. 24, 255. (0) 3 & 4 Will. 4, c. 74. (p) 4 Hen. 7, c. 24. (q) 8 & 9 Vict. c. 106, s. 4. (r) See Barnwell v. Harris, 1 Taunt. 430; 2 V. & P. 132, 10th ed.; 1 Pres. Ab. 20. (8) Paine v. Meller, 6 Ves. 349. (t) Lydall v. Weston, 2 Atk. shown for sixty years have been assigned. Sometimes the reason assigned is the duration of human life (2), sometimes that the old Statutes of Limitation (a) could not confer a title in a shorter period (b), and sometimes on both grounds (c). One ground, said Lord Lyndhurst (d), and the real cause, said Lord Campbell (e), of the rule is the duration of human life; for where, as in the statute just mentioned, there are exceptions by reason of infancy and other disabilities, there the estimate of the life of man is still to be regarded as measuring the period during which a title must be proved (ƒ). Probably the limitation to a writ of right originally suggested the period of sixty years, but did not, or did not alone, furnish the ground and reason of the practice which requires the title to be deduced for that period at least (g). The rule, however, was never founded on any assumption that it gave a title absolutely safe against eviction (h); but, admitting that a title shown for sixty years might still be the subject of eviction, assumed that, after sixty years, there was a moral certainty that no facts existed which could support eviction (i). The probability is that when it became necessary to establish the minimum extent to which abstracts of title under all circumstances should reach, sixty years were fixed on as being the period when an adverse possession would confer an unimpeachable title (k), or, as there can be no mathematical certainty (1), yet as there may be a strong probability, in favour of a title being good, as the favourable result of a scrutiny, prosecuted through the res gestæ of the last sixty years was thought to afford that probability, and as the more extended the period of research, the greater the assurance of safety, convenience required and practice established a conventional limit (m). It has often been lamented, said Lord Mansfield, C. J. (n), by eminent lawyers, that the period of possession sufficient to acquire a title has not been shortened, who have thought that sixty years was too long a time for titles to remain in dubio; for whilst the title to lands remains in doubt, all improvements are suspended. The public interest, as well as that of the possessors, requires that titles should be rendered indefeasible as soon as those who may be supposed to have claim on estates have had a fair opportunity of establishing them (o). The Real Property Commissioners in their first Report said (p), although a claim can seldom be set up after twenty years' adverse possession, the instances, however rare, in which this occurs, render all titles questionable to the extreme limit ever allowed; and upon the sale and mortgage of land, it is necessary that every title should be strictly examined for nearly a century, and that evidence should be given of the enjoyment, transfer and devolution of the property during that long period. This is a main cause of the length of abstracts necessary to be laid before conveyancers, and of the harassing and expensive inquiries to which abstracts give rise. Many titles, notwithstanding long enjoyment, are found unmarketable . ... From the increased frequency with which real property changes hands in modern times the length of abstracts is a growing evil which calls loudly for remedy; and ed. (m) 1 Hayes' Introd. 282, 5th (n) Charlwood v. Morgan, 1 New Rep. 66. (0) Per Best, C. J., Tooth v. Bagwell, 3 Bing. 373. (p) Page 41. |