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 limitatoins (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(1).

(1) Jackson ex dem. Putnam v. Bowen, 1 Caine R. 358. Ridgely's lessee v. Ogle & Leonard, 4 Har. & M'Hen. 123. Hilton's lessee v. Brown, 1 Wash. C. C. 204. Jackson v. Camp, 1 Cowen, 605. Jackson v. Woodruff, 1 Cowen, 276. Plummer v. Lane, 4 Har. & M'Hen. 72.

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 released [*]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)(1).

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)(2), 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

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

218.

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

(1) A general usage like that of depositing lumber on the banks of a river, not accompanied by a claim of title, or an intention of occupyng the land to the exclusion of the owner's rights, cannot furnish any legal presumption of a grant. Bethune v. Turner, 1 Greenl. R. 109.

(2) Homes v. Howard, 2 Harr. & M'Hen. 60. Lloyd v. Gordon, ib. 254. 260. Allen v. Hall, 1 M'Cord, 131. Coleman v. Hutchinson, 3 Bibb, 209. Johnson v. Howard, 1 Har. & M. 210. Thomas v. Mather, 4 Bibb, 412. Jackson v. Whitbeck, 6 Cow. 632. M'Clung v. Ross, 5 Wheat. 116. 124. Clap v. Bromagham, 9 Cowen, 530. Jackson v. Tibbets, 9 Cowen, 241.

tenement (a). On the same principle a deed enfranchising a copyhold was, in one case, presumed from long enjoyment even against the Crown(b); 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(c).

But in order to sustain the presumption of a conveyance in cases of this description, the possession, on [*]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 (d), or under a term of years limited, or created for raising portions (e), or a right as tenant by the curtesy (f); or where the pos

(a) Steward v. Bridger, 2 Vern. 7-8, 288.

516.

(d) Doe d. Fenwick v. Reed, 5

(b) Roe d. Johnson v. Ireland, Barn. & Ald. 232. 11 East, 280. (e) Acherley v. Roe, 5 Ves.

(c) Att. Gen. v. Bowyer, or Vigor, 3 Ves. 714, 720, 724, 730; 5 Ves. 303-4; 8 Ves. 273, 273-6

565.

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

ession was taken in consequence of a mistaken construction of a deed or will (a), or was continued under a supposed new agreement entered into on the expiration of a preceding lease(b); 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(c) (1).

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 [*]estate was apparently outstanding, in which case, if a subsequent possession of twenty or thirty years have corresponded with the uses of the recovery, a previous surrender of the freehold will be presumed (d). Recoveries, though in their form

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

(d) Green v. Froud, 1 Vent. 257; 1 Mod. 117, S. C. See al

(b) Roe d. Pellatt v. Ferrars, 2 so Warren v. Greenville, 2 Stra. Bos. & Pull. 542. 1129; and Lord Mansfield's com(c) See per Lord Eldon, 1 ment thereon, 2 Burr. Rep. 1072.

Mer. 125.

(1) Where a mixed possession can be used to prevent the presumption of a deed, it must be held by both parties claiming title to the same land. Beall v. Lynn, 6 Har. & Johns. 336. If two are in possession, one by right and the other by wrong, it is his possession who has the right. Hammond v. Ridgley's lessee, 5 Harr. & John. 263. No possession of one claiming under a defective title can raise a presumption of a good title. Bown v. O'Neale, 5 Har. & Johns. 230. See Gittings v. Hall, 1 Har. & John. 18. Beal v. Lynn, ub. sup.

they imply an adversary suit in which the demandant seeks by real action to establish his title to the land demanded, have for centuries been regarded in the light of common assurances founded in the agreement of the parties; so that there is the same cause for entertaining every such reasonable supposition in their behalf as is admitted in the case of other assurances. Accordingly it was observed by Lord Mansfield, that where the persons interested to set aside a recovery have had opportunities to prefer their objections, but instead of doing so, have acquiesced, and not at all disputed its validity, a presumption fairly arises, that the usual and proper means were employed to render it effectual(a).,

That the presumption, however, of an antecedent surrender by the immediate freeholder may arise, the case must be clear of all circumstances inconsistent with such presumption. If the previous estate be shown to have existed since the time of suffering the recovery, the courts will be bound by that fact; so that although a subsequent possession of even great length may have accorded with the uses declared, yet if that possession have been not incompatible with the actual continuance of the prior interest, it will not countervail the want of the previous surrender. (1) Thus, where an estate for [*]life by way of jointure, in lands part of a larger property, was proved to have existed previously to the time when the tenant in tail suffered a recovery; and it

(a) See 2 Burr. Rep. 1073.

(1) Williams v. M'Gee, 1 Rep. Const. C. 88.