appeared, that, after the recovery, amongst other acts indicating ownership, the jointress granted a lease of the land in question to the vouchee in the recovery; this circumstance, clearly acknowledging on his part the continuance of the jointure estate, was considered to repel the presumption of its having previously surrendered: and the remainder-man, in consequence, after the vouchee's death, succeeded in establishing his right, to the extent of the jointure lands, in an ejectment against the person claiming under the recovery (a).

The following decision yet more forcibly illustrates the position last stated, and together with the preceding case, seems to establish the rule, that although a conditional surrender of the legal freehold would sustain the validity of a recovery, such conditional surrender will not be presumed, where the possession of the immediate freeholder appears not to have ceased at the time of the recovery; unless the remainderman in tail live many years after the expiration of the preceding estate, and take no further steps towards the destruction of the entail,-for in this latter case, it should seem, the neglect to suffer a second recovery would be regarded as presumptive evidence of the surrender essential to the validity of the first.

[*]Mr. George Bridges, being tenant in tail of the manor and demesne lands of K., subject, as to part of the land, to an estate for life in the widow of a former owner, suffered a recovery, in terms comprising the whole property, and settled it upon the Duke

(a) Haines Barley's case, 5 Mod. 210.

of Chandos. Mr. Bridges died before the widow; and it was not until her death, which happened above thirty years after the date of the recovery, that the Duke entered upon those lands of which she had been in possession. For this portion of the estate an ejectment (a) was brought by the remainder-man in the original settlement, who obtained a verdict; and on application being made by the defendant in the following term for a new trial, in answer to which it was objected on behalf of the remainder-man, that as the widow did not join with Mr. Bridges in making a tenant to the precipe, the estate tail and remainders over, in the lands she had enjoyed, were not affected by the recovery, the Court of King's Bench concurring in this argument, dismissed the application. Lord Mansfield, in delivering his opinion, said; "The single pretence to any the least ground of presumption in the present case can be only this, that no tenant in tail in remainder would suffer a recovery, without first getting a surrender of the life estate, in order to make it effectual. But even that ground (slight as it is) does not hold here: and for this there are two especial reasons. One is. that there does not appear to have been any intention in the remainder-man in tail to suffer a recovery of these particular lands; and the other, that there has [*]been no possession whatever under the recovery. On the contrary, the ejectment was brought, and the validity of the recovery put in litigation, immediately after the death of the tenant for life." His Lordship, however, expressed himself to be clearly of opinion, that if there had been a long possession by the tenant in tail after the determination of the preceding estates,—though such

(a) Goodtitle d. Bridges v. Duke of Chandos, 2 Burr. 1066.

possession might be ascribed to the entail, the presumption of a surrender, on the ground of acquiescence, and the probability thence arising that the parties knew the recovery was not defective, ought to have been made: and he added, that it was his wish to have it understood, that possession in such cases by tenant in tail, after the death of tenant for life, did leave a ground for presuming that there had been a surrender.

According to dicta of several judges, records, when essential to the stability of titles which are evidence d by long enjoyment, may be presumed, notwithstanding there be no proof that such records ever existed(a)(1). To a certain extent this proposition is undoubtedly true; that is, if confined to grants from the crown, and other instruments (if any) creating original rights, which, to be effective, should appear on record (b). But the doctrine, it is conceived, must be understood with this qualification. It clearly cannot be extended to fines. Nor do recoveries, except under the circumstances which we shall hereafter have occasion [*]to mention, come more properly within its operation. The reason is obvious. Should a contrary rule obtain, not only would twenty years' adverse possession deprive (as it does) the owner of an estate tail vested in possession and his issue of their formedon, but would also be a presump

(a) Per Lord Mansfield, Cowp. (b) Mayor of Hull v. Horner, 109-110. See also 3 T. R. 158; Cowp. 102.

2 Ves. jun. 583.

(1) Dillingham v. Snow, et al. 5 Mass. 547. 13 Johns. 367. Schauber v. Jackson, 2 Wend.

tive bar to those in remainder and reversion ;-a conclusion which would both directly oppose the almost innumerable cases showing that every remainder-man, after his right accrues, is entitled to a certain period for prosecuting it; and would open a new way to elude the enactments of the statute de donis. And indeed it is probable, that Lord Mansfield meant the word record to be understood in the restricted sense, in which only it is contended the principle is just for in the case wherein his dictum on the subject occurs, he appears to use the words "record" and "charter" (i. e. a grant from the crown) as synonymous; and he enumerates, as one of the requisites to the presuming of records, a possession which, in strictness, could commence only under that spe. cies of assurance.

It has been also laid down on various occasions, that for the purpose of confirming and securing titles attested by long enjoyment, Acts of Parliament, if needful, may be presumed (a)(1). And this position appears to be true, as well in regard to rights wherein the public are interested (b), as to those which concern individuals [*]only. That a private act may be presumed has been expressly determined (c).

But it is worthy of remark, that in admitting pre

(a) Vide 1 Eden, 296; Cowp. 215; 6 East, 215; 2 Ves. jun. 583; 1 Jac. and Walk. 63.

(b) Rex v. Mountague, 4 Barn.

and Cress. 598.

(c) Farrar's case, Skinner 78, cited; 12 Vin. 58, pl. 11, S. C.

(1) Mathers v. Trinity Church, 3 Serg. & Rawle, 509. Schauber v. Jackson, 2 Wend. 13.

sumptions to sustain and fortify old possessions, the courts do not restrict themselves entirely to those of rightful conveyances or of rightful possession. The quieting and confirming of titles being the principal object and indeed the origin of the doctrine, such a presumption will be made (provided substantial justice be not sacrificed) as will best meet the necessity of each particular case. And for this reason, the actual ouster of one tenant in common by another will, after twenty years' exclusive possession by his companion, and in order to form a ground for the operation of the statute of limitations, be as readily inferred as a rightful conveyance (a) (1). We may add, that at law, so also between tenants in common of an equitable estate, such transactions may take place, as will amount to a presumptive equitable ouster, and with twenty years' subsequent exclusive possession by the party evicting, will bar the neglected rights of the other(b).

(a) Doe d. Fishar v. Prosser, cular circumstances, will not inCowp. 217. Fairclaim v. Shack- duce the presumption of an evicleton, 5 Burr. 2604, seems contra- tion, see and consider Peaceable ry; but the point on the principle v. Read, 1 East, 568. of presumption was not agitated. (b) See Harmood v. Oglander, That enjoyment for less than 6 Ves. 199; and Lord Eldon's obtwenty years, except under parti- servations thereon, 8 Ves. 131.

(1) Ricard v. Williams, 7 Wheat. 59. Johnsons v. Howard, I Har. & McHenry, 281. Lloyd v. Gordon, 2 Har. & McHen. 254. Bromaghan et al v. Clap, 5 Cow. 295. 3 Cow. 530. Jackson v. Johnson, 5 Cow. 74. Hermes v. Howard, 2 H. & M. 60.

v. Tibbets, 9 Cowen, 241.

Allen v. Hall, 1 McCord, 131.

v. Hutchinson. 3 Bibb, 209.

Jackson

Coleman

Thomas v. M'Tier, 4 Bibb, 412. Jack

son v. Whitbeck, 6 Cowen, 632. M'Clung v. Ross, 5 Wheat. 116.

124. Frederick v. Gray, 10 Serg. & Rawle, 182.