CHAPTER XXII. PRESUMPTIONS OF FACT CONTINUED. Of the presumed Waiver of Rights of Appropriation, -of Resumption on Forfeiture, Pre-emption, and Election-of Rights under Executory Trusts, Devises in Equity, Agreements to Purchase, and Covenants for Renewal ;-of the Responsibility of Executors, Administrators, and Trustees;—of the Liability of Purchasers to see the Application of the Purchase Money, and of other miscellaneous Rights and Equities. I. FROM long non-user, the grant of a privilege to appropriate land, not before capable of exclusive occupation, will be presumed to be abandoned. This was decided in a case, where it appeared that a grant had been made by the Crown, in 1629, of certain mud lands and lands overflowed with the sea, situate on each side of the town of Gosport, to the intent they might be recovered and embanked, but which right until 1734 was never exercised: on an information against the claimant under the grant, for making erections in a place which, adjoining the town of Gosport, was supposed to come within the terms of the grant, the Court of Exchequer first, and afterwards on appeal, the House of Lords, were of opinion, that the grantees, if they ever had a title to the locus in quo, had, by their long delay to use the right conferred, abandoned it; and that the title of the Crown, by the long possession of its subjects, had since revived (a). But the dereliction of rights affecting land is not in all cases held to be evidenced by mere non-user. Rights to mines and minerals, with the incidental privilege of boring for and working them, are an exception to this rule. When such rights are granted, their being continually exercised is never contemplated, nor when reserved, is it often with a view to immediate use. Hence the supposition of a relinquishment on the ground of non-user is excluded, and the title, however long dormant, unless it be opposed by proof of actual adverse pernancy for twenty years, may be enforced at an indefinite period (b). --- II. The right of Resumption for a Forfeiture, when neglected, (if such case does not fall within the statute of limitations, a point not yet expressly determined), is another instance of the doctrine under consideration; long forbearance, as for twenty years, especially if there are circumstances evincing a disposition in the party to waive the right, will be held to create a presumption of its relinquishment. Thus, the forfeiture of a copyhold, from the copyholder's having levied a fine or having committed any other (a) Att. Gen. v. Richards, 2 Anstr. 603; Parmeter v. Att. Gen. S. C. on appeal, 1 Dow. 316. (b) Seaman v. Vawdrey, 16 Ves. 390; Adair v. Shaftoe, 19 Ves. 156, cited like act in prejudice of the lord's title, or the forfeiture of a lease, from the lessee's not having paid his rent within the stipulated time, or from his having otherwise acted contrary to the terms of the demise, will, after long neglect on the part of the lord or lessor to take advantage of the forfeiture incurred, be presumed to have been remitted. And this presumption is the more immediate and necessary, where the continuance of the copyholder's or lessee's interest has been either directly or indirectly acknowledged since the forfeiture; as where on the death of the copyholder admission has been granted to his heir, or rent subsequently due has been received from the lessee. The fact of a lessee, who has incurred a forfeiture of his lease, being mentioned under the appellation of tenant in letters written by the landlord after the forfeiture, is also presumptive proof that the forfeiture has been remitted (a). III. Unreasonable delay will prove fatal to a right of Pre-emption,-as it is manifest from the very nature of rights of this kind, that under ordinary circumstances (a) Doe d. Tarrant v. Hellier, 3 T. R. 162; and Milfax v. Baker, there cited; 1 Lev. 26; Malone v. Malone, 1 Ball and Be. 32, n. In regard to the point of recognition it may be useful to add, that an act, which does not necessarily imply an acknowledgement of the continuance of the tenancy, affords no ground for presuming a dispensation of the forfeiture. Hence in a late case at N. P. (Doe d. Taylor v. Johnson, 1 Stark. 411), it was held that a right of entry for non-payment of rent within twenty-one days after it became due, was not waived by the landlord's distraining before the twenty-one days were past, and continuing in possession of the distress on the premises, after they had expired. And in the above-mentioned case of Doe v. Hellier, it was laid down, that an acceptance of rent after a forfeiture was not conclusive of the forfeiture being waived; for the possession of the tenant might remain though his former estate was gone, and the rent might be accepted from him under a tenancy from year to year. the party's option should be speedily declared. Long neglect to exercise that option, it has been held, afaffords, with more than usual propriety, an inference that the privilege has been waived. By the will of John Huckstep, lands, after payment of his debts and legacies, were devised to two persons in fee, subject however to a condition, that if any of the testator's name should be desirous of purchasing, they should be sold to him for 2007. less than their estimated worth. Twenty-five years after the testator's death, a nephew bearing the same surname, exhibited his bill, and claimed a conveyance of the lands at the undervalue which the will specified. But the Lord Chancellor conceiving the demand after so great a length of time to be contrary to the testator's intention, dismissed the bill (a). IV. To constitute a binding Election, where by the rules of equity an election must be made between a gift by will, and property previously possessed or taken as heir to the testator, it is necessary that the party should have a knowledge of the nature and relative value of the different funds between which he is required to elect; for election imports deliberate preference. So long as ignorance in regard to these particulars continues, lapse of time, unless sufficiently great to show that the alleged ignorance must have been wilful, does not determine the general equity (b). (a) Huckstep v. Mathews, 1 Vern. 362. See also Orby v. Trigg, 9 Mod. 2. (b) Pusey v. Desbouvrie, 3 P. Wms. 315; Wake v. Wake, 3 Bro. C. C. 255; 1 Ves. jun. 335, Another rule respecting election is, that the party must have a distinct apprehension, that he is under an obligation to elect, and to signify his election by some plain and intelligible act. The cases to which it has been held this rule may apply, that is, when such an apprehension may possibly not exist, are where the devisee or legatee, according to the will, would take an immediate particular estate as well in the property previously possessed, as in that newly given (a); or where the antecedent property of the devisee or legatee being future or contingent, it is apparent from the general scope of the will, that the election need not be made until the reversionary interest falls into possession (b). But where an election is plainly necessary, and the comparative value of the funds is easy to be ascertained, and the devisee or legatee neglecting to make the needful inquiries, either receives the provision under the will, or limits himself to the enjoyment of his other property, though without expressly electing,—an S. C.; Whistler v. Webster, 2 Ves. jun. 367, 371. See also Rumbold v. Rumbold, 3 Ves. jun. 65. The principle which these cases establish was, in Lord Beaulieu v. Lord Cardigan (Amb. 533; 3 Bro. P. C. by Toml. 277), carried to an extreme length. It was there held, that a right to elect lasted till the whole of the testator's affairs were wound up, and the trusts executed;—which in that case consumed a space of fifty years. But the authority of this decision, as affording a general rule, is very questionable. Lord Thurlow, on its being mentioned before him (1 Ves. jun. 172), referred the determination to the particular circumstances; and he is elsewhere said to have declared over and over again, that it should never bind any other case where there was the least apparent difference between them. See 1 Ves. jun. 336. (a) Edwards v. Morgan, M‘Clel. 541. Sed vide Stratford v. Powell, 1 Ball and Be. 1. (b) Tucker v. Sanger, McClel. 424, 439. |