-and does not and does give title against, the Crown. the onus probandi, or burden of proving title, is thrown upon the Crown (o), and, consequently, upon its grantee (p). The possession, however, although for twenty years and upwards without disturbance, is still insufficient to give to the possessor, as against the Crown, any title to the property, distinct from the possession (7), but, to give such title to property in England, must be continued for such further period as, together with the past possession, will make a period of sixty years of such possession, or during which the possessor has been in receipt of the profits of the property next before any proceeding by the Crown to recover it, without the Crown having been answered the profits of the property (r). The property until the passing of the statute last cited was also recoverable by the Crown when the profits had been duly in charge according to the 9 Geo. 3, c. 16 (s), or had stood insuper of record within the same period, but could not so stand unless they were before duly in charge (t). Lord Ellenborough, C. J., said (u) the 9 Geo. 3 does not give a title; . . . . it only takes away the right of suit of the Crown, or those claiming from the Crown, against such as have held an adverse possession against it for sixty years. His lordship meant, of course, a title in less than that period. For the Act is, in this respect, in the same or similar terms to 21 Jac. 1, c. 2, and of this latter act Lord Coke says (v) the first part of the act is negative, and exclusive of the right and (0) See Att.-Gen. v. Parsons, 2 Mee. & W. 23. (p) Doe d. Watt v. Morris, supra. (g) 9 Geo. 3, c. 16; Goodtitle d. Parker v. Baldwin, 11 East, 488. (r) Ib. ; 24 & 25 Vict. c. 62, s. 1; Att.-Gen. v. Lord Hotham, Turn. & R. 210; Parmeter v. Att.-Gen., 1 Dow, 316; Tuthill v. Rogers, 1 Jo. & La T. 36. (8) See Att.-Gen. v. Lord Eardley, 8 Pri. 39. Doubted by Sir E. Sugden, C., 1 Jones & La T. 82. (t) 3 Inst. 189; 8 Pri. 74, 76. (u) Goodtitle d. Parker v. Baldwin, 11 East, 488. (v) 3 Inst. 190. title of the king, and the second part is affirmative, and establishes the state of the subject (x). Ireland. In relation to lands in Ireland, where the possession As to lands in of them belonging to the Crown by a subject gives a title, as distinguished from the mere possession, the law differs from that applicable to lands in England. To exclude the title of the Crown to lands in Ireland the possessor of them must have been in the possession, or in the receipt of the profits, of them for sixty years next before any proceeding by the Crown to recover the lands, without the Crown during that period having been answered the profits thereof, or without the profits have been duly in charge according to the 48 Geo. 3, c. 47, that is, where the Crown is entitled to and in the possession of the issues and profits (y), which differ from the subjects of sect. 5 of that statute (z). After that period the possessor acquires, and the Crown loses, all title to the property so held (a). Lands in Ireland were granted by King Charles the Second to A. in tail male, reserving a rent equal in amount to the quit rent which would have been payable for them if granted in fee. The rent reserved was put in charge in the rentals of the Crown as a quit rent, and so continued until 1844. In 1776 the estate tail determined, and from thence to 1844 the persons claiming under the grantee continued in possession of the lands, claiming them in fee simple and paying the reserved rent as a quit rent. The grantee, shortly after the grant, conveyed to a purchaser in fee, but expressly saving the king's reversion. The estate was ever afterwards conveyed by fine and otherwise as a fee simple. When the estate tail determined, the seisin was vested in the Crown, and it had the right to "the possession (a) See also Tuthill v. Rogers, 1 Jo. & La T. 36. (y) 1 Jo. & La T. 68. (z) Ib. 67. (a) 3 Inst. 189; Att.-Gen. v. Lord Hotham, Turn. & R. 210; Tuthill v. Rogers, 1 Jo. & La T. 36. Tuthill v. Statutes as to the Crown disregard how the possession acquired. Position of a Crown. and the seisin ;" and it was held that the payment of the reserved rent was not an answering to the Crown of the rents of the lands by force of any right, title or interest to or in the lands; that the entry of the reserved rent in the rentals of the Crown, though naming the lands out of which the rent issued, was not a putting in charge of the lands themselves, and that the Crown, although not in the "actual seisin" within the meaning of the 48 Geo. 3, c. 47, was barred of the title to the land; and all these questions were determined in proceedings between subject and subject only, and in which the Crown was no party, and took no part (b). The statutes (c) pay no regard to the mode in which the possession of the subject has been acquired or commenced. It may have been by tortious intrusion, without colour of title; or it may have lawfully commenced by virtue of title from the Crown, and have been unlawfully continued after the determination of that title, as in the case of Tuthill v. Rogers just stated. A grantee of the Crown stands in the same position grantee of the and has the same right against the possessor as the Crown itself; and, in some cases at least, although not in general (d), is entitled to the benefit of the prerogative maxim, nullum tempus occurrit regi (e). Presumption the Crown. After the statute 21 Jac. 1, c. 2, and before that of of grants from 9 Geo. 3, c. 16, grants from the Crown were (ƒ), and since and independent of the latter statute have been (g), presumed in favour and support of long and peaceable possession. So also, after the lapse of more than sixty years without the payment of rents, the subject of the (b) Tuthill v. Rogers, supra. (d) Poph. 26. (e) See Lee v. Norris, Cro. El. 331; Run. Eject. 59; Doe d. Watt v. Morris, supra; Doe v. Roberts, 13 Mee. & W. 520. (f) Powell v. Milbanke, Cowp. 103, n. (g) The Mayor of Kingstonupon-Hull v. Horner, Cowp. 102; Roe d. Johnson v. Ireland, 11 East, 280; Gibson v. Clark, 1 Jac. & W. 159; Trotter v. Harris, 2 You. & Jer. 285; Doe d. Devine v. Wilson, 10 Moore, P. C. C. 502. 7th sect. of the latter statute, the extinguishment of such rents has been presumed (h). In Read v. Brockman (i), Ashurst, J., said, "I believe it has been held, on a question respecting a right of advowson, that after a long series of presentations even a grant from the Crown may be presumed; and that is the strongest instance of a presumption, because all the grants from the Crown are matters of record. And this may have come before the Court on the pleadings, because in quare impedit there is no general issue. The question must be brought before the Court in some mode allowed; and if the party cannot plead a grant from the Crown without a profert, and the grant is lost, his title would be also lost; therefore ex necessitate he must plead it as a non-existing grant, and that it is lost by time." In Doe d. Devine v. Wilson (j), the court said from the long possession of the lands in that case in New South Wales for thirty years, the jury would have been justified in presuming, not a substitutional, but a supplementary and confirmatory, grant by the Crown, and that it was competent to the Crown to make such a confirmatory grant. But in all these cases of presumed grants, the grants could have been legally made by the Crown, and then a court will direct a jury to presume in favour of possession any such grant (k), and in all the cases here cited the question was, not between the Crown and a subject, but between subject and subject only, and then the presumption seems to have been properly made in support of such a possession. But it does not follow that, in a case between the Crown and a subject, the presumption would have been made, or at least so readily made, as in cases between subject and subject. In Parmeter v. Att.-Gen. (1), lands were claimed under Presumption for the Crown (h) Simpson v. Gutteridge, 1 Mad. 609. See also Tuthill v. Rogers, supra. (i) 3 T. R. 151. (j) 10 Moore, P. C. C. 502. (k) See Goodtitle d. Parker v. › Baldwin, 11 East, 488; Doe d. Derine v. Wilson, supra. (2) 1 Dow, 316. against its own a grant from the Crown, but the only mode of making grant. a title to them as against the Crown appearing to be by showing a sufficient possession, which was not shown, and the Crown, notwithstanding such grant, having remained in possession of them for upwards of 150 years after the grant, that possession was held to create a presumption in favour of the title of the Crown against even such grant, and against the appellant, whose possession had been for only nineteen or twenty years. Grant not presumed where alienation restrained. Length of time to raise presumption of the Crown. Where, however, the possession is for a period less than sixty years (m), and à fortiori where in addition to the shorter period the Crown is restrained from alienating the property in question (n), the presumption of a grant by the Crown cannot be made. The 9 Geo. 3, c. 16, has not the effect of repealing the statute imposing upon the Crown restraints against alienation (o). It is said, however, that in order to raise the presumption of a grant against the Crown a longer time is grant against required than against a private individual (p). But the authorities cited in support of this proposition were all cases between subject and subject only, involving indeed the question of presuming a grant by or from the Crown in support of possession, but not against the Crown in an issue between the Crown and a subject, and none of them involving the question as to the greater or less degree of time requisite in the one case than in the other. The cases of Trotter v. Harris (q) and Doe d. Devine v. Wilson (r) also are the other way. Prerogatives of the Crown The Crown has the same prerogative in relation to the possessions of the duchy of Lancaster as in relation to those jure corona (s), and therefore is not by usurpaLancaster and tion put out of possession of an advowson held in right extend to the duchies of Cornwall. (m) See Goodtitle d. Parker v. Baldwin, 11 East, 488; Mill v. The Commissioners of the New Forest, 18 C. B. 60. (n) Ib.; see also Doe d. Devine v. Wilson, supra. (0) See Goodtitle d. Parker v. Baldwin, supra. (P) Best on Ev. s. 381. (q) 2 You. & Jer. 285. (r) 10 Moore, P. C. C. 502. (s) Reg. v. Archbishop of York and another, Cro. El. 240. |