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the maxim—nullum tempus occurrit ecclesia—applies as well to the case of a lay, as to that of a spiritual rector (a). Quit rents, which have not been duly paid, form another instance : here also a release will not be presumed from the circumstance merely of non-payment for twenty years ; the courts conceiving themselves bound, inasmuch as the statute of limitations has allowed to the owners of such rents fifty years for prosecuting their rights, not to attempt indirectly to [*]abridge the time (6). The case of mines belonging to a stranger, but claimed by the owner of the soil in consequence of the former hav- . ing long delayed to work them, falls within the same principle. From the non-user, it is fully settled, no argument arises favouring the supposition of a release : as mines are often purchased with a view only to their being opened at a future time ; and when reserved, it is seldom with any intention to immediate use(c).
Another instance, in which the presumption of a conveyance or release is deemed to be rebutted, is, when the possession, on which the presumption rests, can, in its origin, be satisfactorily accounted for; and it is shown, that the late enjoyment only has been wrongful. Here, until at least twenty years after the commencement of the tortious occupation, the pretence of a lawful title is clearly unsustainable. (d) (1)
(a) Nagle v. Edwards, 3 Anst. (c) Seaman v. Vawdrey, 16 702; Berney v. Harvey, 17 Ves. Ves. 390. 119.
(d) Acherley v. Roe, 5 Ves. 565; (b) Eldridge v. Knott, Cowp. Doe v. Reed, 5 Barn. and Ald. 214.
232. See also Howell v. Price, Prec. Cha. 423.
Personal disability, such as infancy, coverture, imprisonment, absence abroad, &c., are, by analogy to the excepted cases in the statute of limitations, also held effectual to repel the presumption of a grant or release. (2)
The fact of the supposed grantor having but a partial or limited interest, as an estate for life(a), or of [*]his holding by virtue only of an office, and being therefore precluded from alienating(6), supplies a further ground on which the allegation of title may be encountered. Grants of crown lands, since the statute 1 Anne, c. 7. or of lands belonging to the church, cannot for this reason be presumed. The effect is the same where the assumed grantee is incapacitated, either totally as an alien, or to a certain extent as the representative of a corporate body, from purchasing (c) (3).
(a) Bradbury v. Grinsell, 2 (1) Goodtitle V. Baldwin, 11 Saund. by Serjt. Wms. n. 175. d; East, 488; Barker v. Richardson, Wood v. Veal, 5 Barn. and Ald. 4 Barn. and Ald. 579. 454; Daniel v. North, 11 East, (c) Wright v. Smythies, 10 372..
(1) Vid. Jackson v. Johnson, 5 Cowen, 74. Jackson v. Frost, 5 Cowen, 376. Jackson v. Brink, 5 Cowen, 483.
(2) Mitchell v. Owings, 3 Marsh. 316. Demarest v. Wynkoop, 3 Johns. Ch. 129. Hall v. Vandegrift, 3 Binn. 374. Marsteller v. McLean, 7 Cranch, 156. Murray v. Baker, 3 Wheat. 541. 545.
(3) The undisturbed enjoyment of any known legal right for any term of time, raises no presumptive evidence of a grant. This presumption only arises in cases, where the user or occupation would otherwise be unlawful. Tinkham v. Arnold, 3 Greenl. R. 120. Stoever v. Whitman, 6 Binn. 416, Jackson v. Richards, 6 Cow. 617. Jackson v. Vermilyea, 6 Cow. 677. La Frambois v. Jackson, 8 Cow. 589. Burns v. Swift, 2 S. & R. 439. Watrous v. Southworth, 5 Con. R. 305. Hall v. Powell, 4 S. & R. 456.
But no length of time will raise a presumption of right in favour of encroachments on the public: at least no period has ever yet heen mentioned as binding the community. The usual conclusion, therefore, arising from an enjoyment of twenty years, cannot, in such instances, be supported (a). (1)
In regard to rights of common, and easements claimed on the ground of long enjoyment, the prima facie title may sometimes be met by proof of the landowner's having been ignorant of the usage (b): but to make this objection effectual, the ignorance must be clearly shown; or at least such evidence adduced as gives it decided credibility (c). The asserted title, we may further add, is capable of being repelled by showing, [*]that the user has not been uniformly or quietly submitted to. The apparent assent of the adverse party is, in all cases of this sort, the true and essential source of inference : but it is evident that without a total disregard to fact, this cannot be maintained, where the claim has formed a constant subject of contest (d).
Ignorance has, sometimes, in courts of equity, been held to afford an answer to averred releases of de
(a) Vooght v. Winch, 2 Barn. East, 372 ; per Dallas, C. J. 8 and Ald. 662 ; Carter v. Murcot, Brod. and Bing. 671. 4 Burr. 2103 ; per Lord Ellenbo (c) Rex. v. Barr, 4 Campb. 16. rough, 7 East, 199.
(d) Livett v. Wilson, 3 Bing. (6) Dawson v. D. of Norfolk, 115. 1 Price, 246; Daniel v. North, 11
(1) Birch v. Alexander, i Wash. Thinmo's ex'r. v. Commonwealth, 4 H. & M. 57. Johnson v. Irwin, 3 Serg. & R. 292. Stoughton, et al. v. Baker, et al. 4 Mass. 528.
mands. The desertion of a right, it has been judicially observed, always supposes a previous knowledge of it: it is absurd to say that a man has relinquished a right of which he is not aware (a). But this topic of defence, we should observe, when allowed, is never received without extreme caution. The presumption from acquiescence would otherwise be constantly avoided (6). (1)
Fraud and imposition are other circumstances by which, in the case of equitable demands, lapse of time may be accounted for (C). This, however, it is obvious, proceeds on the idea of the fraud or imposition being unknown: the delay is otherwise inexcusable, and must, on the general principle, preclude relief (d). But commonly to permit time to afford protection to fraud would be, in effect, to give fraud encouragement (2)
[*]Recent admissions of the existence of demands, and, in like manner, the circumstance of there not
(a) Per Lord Commissioner Gil- 331; 1 Madd. Prin. and Prac. bert, Sel. Cha. Ca. 11 ; Cowper v. 257. 2d edit. Cowper, 2 P. Wms. 730; per Sir (d) Hovenden v. Lord AnnesW. Grant, 2 Mer. 362.
ley, 2 Scho. and Lefr. 607. 610. (6) Per Sir T. Plumer, 2 Jac. 636 ; Medlicott v. O'Donnel, 1 and Walk. 142.
Ball and Be. 156. 165-6. (c). 1 Fonbl. on Equity, 5th ed.
(1) Vide Storrs v. Barker, 6 Johns. Ch. 166.
(2) Hamilton v. Shepherd, 2 Murph. 115. Thomson v. Blair, 2 Murph. 583. Marks v. Pell, 1 John. Ch. 594. Jones v. Conoway, 4 Yeates, 109. Mass. T. P. Company v. Field, 3 Mass. 201. Homer v. Pish, i Pick. 435. Wells v. Fish, 3 Pick. 74. Troup v. Smith, 20 Johns. 33. Sweatv. Arrington, 2 Hay. N. C. R. 129. Callis v. Waddy, 2 Munf. 511.
having been any person competent or duly qualified to give a proper discharge, are frequently relied upon to disprove the averment of satisfaction(a). The fact of the parties concerned being a body of creditors, entitled under a bankruptcy, or under an assignment to trustees for their benefit, is also an answer to lapse of time: such persons not being expected in their collective capacity to use the same diligence as is incumbent on individuals (6).
Where the distress of an expectant heir, or of a person entitled in reversion, has been taken advantage of, in order to obtain an unconscientious bargain, the continuance of the distress is a sufficient reason for delay in seeking relief (c). But with this exception, in which the fact of distress is an integral part of the case, and is material as evidence of the fraud, poverty or embarrassed circumstances are not allowed to exclude presumptions which originate in long de. lay. This principle has been adopted from a sense of the many inconveniences which would result from a contrary doctrine(d) (1).
(a) See Preston on Abstracts, (c) Gowland v. De Faria, 17 3 vol. 364 ; also 12 Ves. 266 ; 19 Ves. 20; Roche v. O'Brien, 1 Ball Ves. 200.
and Be. 830. (6) Whichcote v. Lawrence, 3 (d) Per Lord Redesdale, 2 Scho. Ves. 740; Hardwick v. Mynd, 1 and Lefr. 639. See also Hickes Anstr. 109; Kidney v. Cousmak- v. Cook, 4 Dow. 16. er, 12 Ves. 136. 158.
(1) Jones v. Conoway, 4 Yeates, 109. Massachusetts Turnpike Company v. Field, 3 Mass. 201 Homer v. Pish, 1 Pick. 435. 3 Pick. 74. Sed vide Troup v. Smith, 20 Johns. 33. Hamilton v. Shepherd, 2 Murph. 115. Callis v. Waddy, 2 Munf. 511.