CHAPTER XXIV. OF PRESUMPTIVE EVIDENCE, AS IT RELATES TO ABSTRACTS OF TITLE; AND FIRST, OF PRESUMPTIONS OF GRANTS. We shall now consider the subject of presumptive evidence, as it relates to abstracts of title. We have already had occasion to touch incidentally upon many points relating to the doctrine of presumption, (a) but have reserved for the present occasion all the most important and substantive rules. It is obvious, that if there were no limits appointed for establishing claims and demands, there could be no safe enjoyment of property: for this reason the legislature has wisely passed certain acts for restricting such claims. These acts, as far as they are applicable to this work, have been discussed in a preceding page: (b) but there are many kinds of property, and interests and rights of various natures, which are not directly within these statutes. The (a) See these points collected in (b) Ante, pp. 228--231. the Index, word Presumption. courts both of law and equity have, however, remedied this defect, and, in analogy to the rules prescribed bythe Statutes of Limitation, have established, by a series of decisions, that the quiet enjoyment of almost all kinds of property for a considerable period shall prevail against all claims and demands whatever; and for this purpose, although they cannot make such possession a positive bar to such claims, yet they will, calling the doctrines of presumption to their aid, support and protect the title of the person who has so enjoyed the property, and all legal presumptions are held to be founded in equity. (a) But on the other hand, if the presumption can be fairly rebutted, such possession will not avail. If the claimants, therefore, be ignorant of their rights, or labour under disabilities; if the transaction be effected by fraud, or if the possession has not been uninterrupted, or can be satisfactorily accounted for-in all these cases, the presumption will never arise. A fact must not be inferred, without premises that will warrant the inference. 66 "In drawing an inference or conclusion from facts proved," says a distinguished authority, regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, and no explanation or (a) Fenner v. Duplock, 2 Bing. 10. S. C. 9 Moo. 38. contradiction is offered, human reason cannot do otherwise than adopt the conclusion to which the proof tends." (a) There are some exceptions, however, to these general rules; and these it will be most proper to mention in detail, as they occur, under the several chapters into which this part of the work will be divided. It is proper here to observe, that in the case of Barnwell v. Harris, (b) the reporter's marginal note is incorrect; for, according to that, it was decided by that case, that a purchaser is not compellable to accept a title to premises, formerly subject to an incumbrance, the discharge of which is shown only by presumption. Now this principle is in direct opposition to all the doctrines of presumption, and was not laid down by any of the learned judges who decided that case. Mansfield, C. J., did not allude to the doctrine of presumption; Heath, J., only said "an apportionment may be presumed here, but is it not such a presumption as may be rebutted by contrary evidence?" and Chambre, J., laid down the true rule on the subject in these words: "The question here is not what may be presumed, but whether a purchaser is compellable to accept a purchase, where his title only rests on presumptions which may be rebutted by other evidence; and in this case there is much to be rebutted." The rule, therefore, is, not that a purchaser shall not be compelled to accept a title depending on the doctrine of presumption, but that he shall not be compellable to accept it, if that presumption can be rebutted by contrary evidence. (a) Per Abbott, C. J. in Rex v. Sir F. Burdett, 4 B. & A. 161. (b) 1 Taunt. 430. Presumptions are frequently classed by text-writers into presumptions of law and presumptions of fact. (a) This division, however, is apt rather to confuse than assist the consideration of the subject; and, therefore, it has been thought better, for practical purposes, not to adopt this classification. It has been endeavoured, wherever it was possible, to ascertain the precise time when the presumption will arise, and for this purpose some of the cases have been stated somewhat fully. This is the question which occurs most frequently on the examination of abstracts; and it is hoped that the succeeding pages will be found particularly serviceable in this respect. We shall devote the present chapter to the consideration of the rules on the presumption of grants, both of corporeal and incorporeal hereditaments; and shall then mention the qualifications with which these rules must be received. It is a well-known rule, that where there has been a long undisturbed possession of lands or other property, a grant will be presumed, not only between private persons, but also as against the crown. All shall be presumed to have been solemnly and properly done, rather than ancient grants, which were necessary for the perfection of the thing, should be called in question, although the grants cannot now be shown, otherwise ancient possession would injure rather than strengthen a title. (b) Possession is so strong a title, says Lord Northington, that an act of parliament may be presumed to support and confirm it; (c) and Lord Kenyon is reported to have said, that (a) See Goodtitle d. Bridges v. Duke of Chandos, 2 Burr. 1068. (b) Bedle v. Beard, 12 Co. 5. Per Buller J. Read v. Brookman, 3 (c) 1 Eden, 296. E E he would not only presume one, but one hundred grants, if necessary, to support a long enjoyment. (a) This is the general rule; it has, however, qualifications and exceptions which must be fully considered. And first it is important, if possible, to ascertain what length of time will be necessary to constitute a long possession. This will be found to vary to a certain extent with the nature of the property. In some kinds of property a grant will not be presumed until sixty or one hundred years' quiet enjoyment have expired; in others, the presumption will arise after a possession of twenty years. A late writer on this subject has laid down the rule much too generally, when he says, that an undisturbed possession of real property for twenty years is primâ facie evidence of an absolute ownership; and that although other titles are proved to have existed, they will be presumed to have been released, or otherwise transferred, by instruments which have been lost. (b) In Bedle v. Beard, (c) which has always been considered a leading case on the point, the general rule is laid down by Lord Chancellor Ellesmere as quite clear, but no time is attempted to be fixed for its application. This case related to an advowson. In a much later case, Mayor of Kingston upon Hull v. Horner, a grant or charter from the crown, which (a) 11 East. 284; 16 East. 339. And see Turn. 218. (b) Matthews on Presump. 188, citing 1 Eden, 296, and Turn. 218, neither of which authorities bear out the learned author's proposition. As we shall have frequent occasion, in the following pages, to differ with the conclusions to which Mr. Matthews has arrived, we are the more desirous of noticing that that gentleman has exhibited considerable learning and research throughout his whole work. (c) 12 Co. 5. |