stronger in the case of a legacy to the executor, which is merely, though in pointed terms, ordered to be paid out of the personal estate (a).

Parol testimony may, in like manner, be adduced by the next of kin, to oppose similar evidence on the part of the executors, and to fortify the presumption that the latter were not intended to take a beneficial interest (b). But such testimony is not admissible, in the first place, to show the testator's intention to impose a bare office of trust. To allow its admission would violate the principle before noticed, that external evidence shall not be received to contradict a written instrument (c).

(a) 19 Ves. 642.

(b) Bishop of Cloyne v. Young, 2 Ves. 91; Rachfield v. Careless, 2 P. Wms. 158.

(c) Osborne v. Villiers, 2 Bac.

Abr. 426; 2 Eq. Abr. 416, S. C.;
White v. Williams, 3 Ves. and Be.
72; Coop. C. C. 58, S. C.; 19
Ves. 643-4.

CHAPTER XI.

PRESUMPTIONS OF FACT.

On the Presumption of Instruments of Assurance.

OUR attention has hitherto been confined to presumptions of law. We now proceed to treat of presumptions of fact; which are so called because the facts presumed are exclusively deduced from the particular circumstances of individual cases, such circumstances containing them implicité, and yielding a kind of indirect or presumptive evidence of their existence.

In reference to the subjects which come within the scope of the present treatise, it will be invariably found, that as length of peaceable possession is for the most part the consequence only of rightful ownership, lapse of time since the first commencement of titles which depend for their validity on the doctrine of presumption, is in all cases an essential, and in some the only inducement to the presumption requisite for their support.

It is on the consideration just adverted to, and with a view to give effect to long and quiet possession, and to corroborate and affirm titles which are

founded chiefly or only upon this circumstance, that the courts will in many cases presume the previous existence of such instruments of assurance as are necessary to clothe that possession with the legal title. In some cases this presumption is made without any specific evidence of the existence of those instruments in others it is made upon evidence which tends specifically to show that once they actually did exist, although they are not forthcoming. These two classes of cases will be considered in their order.

It has been stated at a preceding page that there are a variety of cases to which the provisions of the statute of limitations (21 Jac. 1, c. 16) do not apply either directly or by construction; and that in order to extend the beneficial operation of this statute, courts of law and equity have established certain positive rules, framed by analogy to the provisions it contains, and which as far as possible meet and comprehend the omitted cases-that in all such cases, where the question concerns the title to real property, they hold peaceable enjoyment for a period of twenty years to be prima facie evidence of absolute and rightful ownership.

This principle affords in its application many examples of the first class of cases, in which a presumption is made of instruments of assurance without specific evidence of their former existence. So that after a long undisturbed possession, state opposing titles (though indisputably proved to have once existed, and against the present validity of which no positive testimony appears) will be presumed to have been re

leased or otherwise transferred by instruments which have been since lost. The preceding enjoyment, unless originating in such instruments, cannot be reasonably accounted for, and thence the probability arises (a).

Pursuant to the above-mentioned rule of analogy, possession for twenty years by one of two tenants in common, accompanied by an exclusive appropriation of the rents and profits, has been held to afford the presumption of a conveyance from the party out of possession (b); and receipt for the like period of a copyhold rent by a stranger, the presumption of a grant from the lord, of the freehold of the customary tenement (c). On the same principle a deed enfranchising a copyhold was, in one case, presumed from long enjoyment even against the Crown (d): and in another, from time coupled with other circumstances, a conveyance or release of an equity of redemption was presumed, so as to impress upon the mortgaged estate (which was in the mortgagee's possession) the character of his absolute property, and to bring it within the operation of a will made by the mortgagee about eight years after a clear recognition of a subsisting interest in the mortgagor (e):

But in order to sustain the presumption of a conveyance in cases of this description, the possession, on

(a) See 1 Eden, 296; 1 Turn.

218.

(b) Doe d. Fishar v. Prosser, Cowp. 217.

(c) Steward v. Bridger, 2 Vern.

516.

(d) Roe d. Johnson v. Ireland, 11 East, 280.

(e) Att. Gen. v. Bowyer, or Vigor, 3 Ves. 714, 720, 124, 730; 5 Ves. 303-4; 8 Ves. 273, 275-6-7-8, 288.

which that presumption rests, must have been not a possession merely for twenty years, but an adverse possession for that period. If the enjoyment can be accounted for on grounds consistent with the former proprietor's title, inferences drawn from such enjoyment alone will necessarily fail; and the latter, notwithstanding his long exclusion from the possession, will be entitled to recover. Hence, where the possession may be referred to, and can be shown to have commenced under an elegit, or an agreement to hold until a debt were satisfied (a), or under a term of years limited, or created for raising portions (b), or a right as tenant by the curtesy (c); or where the possession was taken in consequence of a mistaken construction of a deed or will (d), or was continued under a supposed new agreement entered into on the expiration of a preceding lease (e); in all these cases, the length of enjoyment, however considerable, will not be deemed conclusive of the question of title; unless, indeed, the debt, right, or agreement, should appear to have been satisfied or determined twenty years or more before legal proceedings instituted (f).

Another instance of the favourable disposition of the courts to protect long established titles against dormant claims, is afforded in the case of an old recovery suffered at a time when the immediate freehold of the

(a) Doe d. Fenwick v. Reed, 5 Barn. and Ald. 232.

(b) Acherley v. Roe, 5 Ves. 565.

(c) Doe d. Milner v. Brightwen, 10 East, 583.

(d) Cowper v. Earl Cowper, 2 P. Wms. 720.

(e) Roe d. Pellatt v. Ferrars, 2 Bos. and Pull. 542.

(f) See per Lord Eldon, 1 Mer. 125.