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Presumption of the surrender of terms by trus tees for years.

Formerly carried to an unreasonable length.

of the owner of the inheritance, and not one against his interest (r); and the rule is subject to this further limitation, that the presumption cannot be called for where it would be a breach of trust in the trustees to make the conveyance (s). On the same principle, reconveyances from the trustees to the cestui que trust will be presumed (t), as also will, under proper circumstances, conveyances from old to new trustees (u).

§ 375. Few subjects have given rise to greater difference of opinion than that of the presumption of the surrender of their terms by trustees for terms of years. In Lord Mansfield's time, the courts seem to have entertained notions on this subject which, if carried out in practice, would have gone far to subvert the trial by jury on the one hand, and confound all distinction between legal and equitable jurisdiction on the other (x). In the case of Lade v. Holford (y), "Lord Mansfield,” we are informed, "declared that he and many of the judges had resolved never to suffer a plaintiff in ejectment to be nonsuited by a term standing out in his own trustee, or a satisfied term set up by a mortgagor against a mortgagee, but direct the jury to presume it surrendered." There is no objection to the latter branch of this proposition, which has been always recognised in practice; for, by not assigning the term for the benefit of the mortgagee, and afterwards setting it up against him, the mortgagor

(r) Phill. & Am. Ev. 476; Doe d. Graham v. Scott, 11 East, 483; Doe d. Burdett v. Wrighte, 2 B. & A. 719, 720.

(s) Phill. & Am. Ev. 476; Keene d. Byron v. Deardon, 8 East, 267.

(1) Hillary v. Waller, 12 Ves. 250, 251. See 2 Sugd. Vend. & Pur. 196, 10th Ed.

(u) Roed Eberall v. Lowe, 1 H. Bl. 446.

(r) See 3 Sugd. Vend. & Pur. 39, 40, 42, 10th Ed.; Evans v. Bicknell, 6 Ves. 184; Lessee Lord Massey v. Touchstone, 1 Sch. & L. 67, n. (c); Wallwyn v. Lee, 9 Ves. 31; Doe d. Hodsden v. Staple, 2 T. R. 696; Doe d. Bristow v. Pegge, 1 T. R. 758, n.

(y) Bull. N. P. 110.

would be guilty of a gross fraud, so that the presumption of the surrender of the term is really an application of the legal maxim which presumes against fraud and covin (z) and it has accordingly been held that such a presumption will not be made in favour of a prior mortgagee, against a subsequent mortgagee in possession of the title-deeds, without notice of the prior incumbrance (a). But the general proposition, never to suffer a plaintiff to be nonsuited by a term outstanding in his trustees, is at least, if taken in its literal sense, inconsistent with principle, and at variance with subsequent authority (b). The surrender of a term is a question of fact, and the court has not only no right, but it would be most dangerous, to advise a jury to presume such a surrender when all the evidence clearly indicated the

reverse.

presum

§ 376. The surrender of a term, like any other fact, Surrender of may be inferred from circumstances (c). It is said, how-able from cirever, that the fact of a term having been satisfied is not, cumstances. when standing alone, sufficient to raise the presumption of a surrender, but that there must be some dealing with the term (d).

term presumable from acts

§ 377. Where acts are done or omitted by the owner Surrender of of the inheritance and persons dealing with him as to the land, which ought not reasonably to be done

(z) See 3 Sugd. Vend. & Pur. 42, 10th Ed., and per Abbott, C. J., in Doe d. Putland v. Hilder, 2 B. & A. 790.

(u) Goodtitled. Norris v. Morgan, 1 T. R. 755; Evans v. Bicknell, 6 Ves. jun. 184.

(b) Doe d. Hodsden v. Staple, 2 T. R. 684; Doe d. Bowerman v. Sybourn, 7 Id. 2; Doe d. Goodtitle v. Jones, Id. 43; Doe d. Reade v. Reade, 8 Id. 118;

or

Doe d. Shewen v. Wroot, 5 East,

132.

(c) 3 Stark. Ev. 926, note (m), 3rd Ed.,; White v. Foljambe, 11 Ves. 351; Doe d. Brune v. Martyn, 8 B. & C. 497; Bartlett v. Downes, 3 B. & C. 616.

(d) Evans v. Bicknell, 6 Ves. J. 185; Williams v. Duy, 2 C. & J. 460; Doe d. Hodsden v. Staple, 2 T. R. 684.

of owner of the inheritance, &c.

Attendant term long time, &c.

unnoticed for a

Surrender of non-attendant

term.

8 & 9 Vict. c. 112.

omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made, a surrender of the term may be presumed (e). But a term of years assigned to attend the inheritance will not, as among purchasers or incumbrancers, be presumed to have been surrendered on the ground of its having remained for a series of years unnoticed in marriage settlements and other family documents; and the cases in which a contrary doctrine has been laid down must be considered as overruled (ƒ). It seems, however, that in equity a term which has not been assigned to attend the inheritance, and which has not been disturbed for a long time, will be presumed to be surrendered, on a question of specific performance between seller and purchaser (g).

§ 378. A great change in the law on this subject has been effected by the stat. 8 & 9 Vict. c. 112, which, after reciting that "the assignment of satisfied terms has been found to be attended with great difficulty, delay, and expence, and to operate in many cases to the prejudice of the persons justly entitled to the lands to which they relate," enacts, in the first section, "that every satisfied term of years which, either by express declaration or by construction of law, shall upon the 31st day of December 1845 be attendant upon the inheritance or reversion of any lands, shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attend

(e) Phill. & Am. Evid. 477; 1 Phill. Evid. 490, 10th Ed.; Doe d. Putland v. Hilder, 2 B. & A. 791-2.

(f) See on this subject Sugden's V. & P. vol. 3, c. xv, 10th Ed., where the cases are collected and ably commented on: also Doe

d. L. Egremont v. Langdon, 12 Q. B. 711; and Garrard v. Tuck, 8 C. B. 231.

(g) 3 Sugd. V. & P. 66, 10th Ed., citing Emery v. Grocock, Madd. & G. 54, and Er parte Holman, MS., 24th July, 1821.

ant as aforesaid by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand, as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said 31st day of December 1845, and shall for the purpose of such protection be considered in every court of law and of equity to be a subsisting term." By the 2nd section "Every term of years now subsisting or hereafter to be created, becoming satisfied after the said 31st day of December, 1845, and which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance or reversion of any lands, shall immediately upon the same becoming so attendant absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid." The cases on the construction of this statute have hitherto been few. See however Doe d. Cadwalader v. Price, 16 M. & W. 603; Doe d. Hall v. Moulsdale, Id. 689; Doe d. Clay v. Jones, 13 Q. B. 774; and Freer v. Hesse, 17 Jur. 177 and 703.

§ 379. Whether in cases of this nature the jury are Belief of juries. bound to believe in the fact which they profess to find, has been made a question; and there certainly are authorities both ways (h). Upon the whole, it may perhaps be safely laid down, that as in all presumptions of this nature legal considerations more or less predominate, the jury ought to find as advised by the judge, unless the fact appear absurd or grossly improbable; in which case, as he ought not to advise them to find, so they ought not to find it.

(h) See 3 Stark. Ev. 918 and 926, note (m), 3rd Ed.; per Richards, C. B. in Doe d. New

man v. Putland, 3 Sugd. V. & P.
61, 10th Ed.; per Bayley, B. in
Day v. Williams, 2 C. & J. 460.

Presumptions derived from the course of nature.

Physical.

SUB-SECTION IV.

PRESUMPTIONS DERIVED FROM THE COURse of nature.

§ 380. Presumptions derived from the course of nature have been already noticed as in general entitled to more weight than such presumptions as arise casually(k); and they may be divided into physical and moral. As instances of the first, the law notices the course of the heavenly bodies, changes of the seasons, and other physical phenomena, according to the maxim-"lex spectat naturæ ordinem (1)." "If," says Littleton (m); "the tenant holds of his lord by a rose, or by a bushel of roses, to pay at the feast of St. John the Baptist, if such tenant dieth in winter, then the lord cannot distrain for his relief, until the time that roses by the course of the year may have their growth." So the law presumes all individuals to be possessed of the usual powers and faculties of the human race; such as common understanding, the power of procreation within the usual ages, (n), &c.; for which reason idiotcy, lunacy, &c., are never presumed. The usual incapacities of infancy are not overlooked. It is a præsumptio juris et de jure that children under the

(k) Supra, sect. 1, sub-sect. 3,
§ 321.

(1) Co. Litt. 92 a, 197 b.
(m) Sect. 129.

(n) Huberus, Præl. Jur. Civ.
lib. 22, tit. 3, n. 17. In the case of
gifts in tail, the tenant is pre-
sumed never too old to be capable
of having issue to inherit by force
of the gift. Phil. & Am. Ev. 462.
See also Reynolds v. Reynolds, 1
Dick. 374, and Leng v. Hodges, 1

Jac. 585. Several instances are given in Beck's Med. Jurisp. 148, 7th Ed., of females having borne children above the ages of fifty, and even sixty, years. See the celebrated Douglas cause, given by him at page 402. Under the feudal system, if the guardian in chivalry married the heir to a woman past the age of child-bearing, it was deemed by law a disparagement. Litt. sect. 109; Co. Litt. 80 b.

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