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bable the effect of positive evidence. By the statute 14 Geo. 2, c. 20, s. 5, a recovery of twenty years' standing, in cases where the deeds creating the tenant to the precipe are lost or do not appear, is made [*]presumptive proof of such deeds, provided the persons joining in the recovery had sufficient estate and power to suffer it, and that on the face of the recovery there appears to have been a tenant to the writ of entry(a). Under this act it has been held, that where a lease, the basis of a subsequent release, and making together with it a conveyance to the tenant to the precipe is lost, the recovery suffered in pursuance of the release constitutes after twenty years decisive evidence of the lease (6). The objection made was, that although if both the lease and release had been lost, the statute would undoubtedly have applied, yet as the former only was missing, such instrument might perhaps never have been executed ; and then the deeds making the tenant to the precipe being imperfect, the recovery by necessary consequence could not stand. And to some extent, it must be allowed, this objection had weight; for the benefit intended by the act is construed not to extend to cases where the conveyance to the tenant can be produced : so that in such cases, if the extant deed be ineffective, the recovery grounded upon it will be invalid too(c). It cannot, indeed, for an instant be supposed,
(a) There is an old case in Vi- Vin. Abr. 57, pl. 7. ner, decided long before the 14th (6) Holmes v. Ailsbie, 1 Madd. Geo. 2, c. 20, in which from the 551. circumstance of long enjoyment (c) Keen d. Earl of Portsmouth under a recovery, the jury pre- v. Earl of Effingham, 2 Stra. 1267. sumed a deed making a tenant to See also per Lord Mansfield, 2 the precipe, although no such deed Burr. 1073. was then forthcoming. Anon. 12
that the legislature intended a defective recovery,—defective because suffered on the foundation, and in pursuance of an inoperative deed [*]which exists,-to become, after twenty years, evidence of other instruments, on which its validity might properly be sustained(1).
The other case of legislative interference before alluded to is the converse of that last stated. By the fourth section of the same act, the deeds making a tenant to the writ of entry and declaring the uses of an intended recovery are allowed, in cases where no record of the recovery can be found, but purchasers for valuable consideration have been since in possession for twenty years or upwards, to be adduced as proof of the recovery having been actually suffered ; provided only that the persons making the deeds and declaring the uses had sufficient estate and power to make a tenant to the writ of entry, and to suffer the recovery.-In regard to this provision, it may be useful to observe, (conformably with what is understood to be the general opinion of the profession, that where the mode prescribed in the deeds for suffering a recovery is manifestly irregular, the statute will not avail.
It frequently happens in titles to freehold property, that the chain of documentary evidence is incomplete from the loss of a bargain and sale for a year, which formed the foundation of an extant release. This deficiency, indeed, is in some instances not very material; as where the release on account of a
(1) See Williams v. M'Gee, 1 Const. Rep. 88.
subsisting estate for life or a term of years, admits of being construed as a grant of the reversion. But in others, where the existence of no such particular estate can be shown, the loss unless supplied by evidence [*]aliunde, may perhaps endanger the safety of the title, or prevent its acceptance by purchasers.(1)
Where the transaction is of recent date, it will seldom be safe to overlook this objection. For against the claims of persons who are not estopped by the release, the title clearly must be supported by its own proper evidence ; so that unless the possessor be able to prove his right under an effectual and perfect conveyance, the legal ownership cannot be adjudged to reside in him. Nor will the usual recital of the bargain and sale in the release avail to his protection; for that recital is conclusive only against parties and privies to the deed containing it, and their respective representatives. With regard to others, including, as is apprehended, issue in tail, remainder-men, and reversioners (a), and not improbably creditors by specialty, the recital except as evidence is wholly inoperative, and as evidence is of but little moment, unless corroborated by circumstances. And although in the course of actual litigation the title might be held good, it is manifest that the above reasons, considered as objections to the completion of a contract for purchase, are of such weight as to render the step at least unadvisable.
(a) Ford v. Gray, 6 Mod. 44; 1 Salk. 285. Sed vide 2 Preston
on Conveyancing, 443; and on Abstracts of Title, 1 vol. 80.
(1) Abrahams v. Mathews, 6 Munf. 159.
But, on the other hand, where a considerable length of time, as twenty years or more, has elapsed since the date of the release, and the possession has been consistent with the limitations of it, there a strong ground [*]is afforded for supposing that the time would cure the defect, and that the lease would be presumed. From the recital of such an instrument being contained in the release, there is obvious reason to conclude, that the parties were not ignorant of a lease being needful to the operation and legal effect of the release; and then the maxim omnia præsumuntur recte et solenniter esse acta seems directly and forcibly to apply(1). Under a legislative provision too, we have seen, twenty years are effectual to supply the identical deficiency now spoken of, where a recovery appears to have been suffered according to the directions of an existing release, notwithstanding the consequence be the destruction of an entail. If the legislature has furnished such a precedent, there is surely much greater reason in ordinary cases, where for a similar period the possession of an estate has concurred with the limitations of a release, to hold the recital therein of a bargain and sale to be sufficient proof of such instrument having existed(a).
(a) See 7 Com. Dig. 5th edit. and per Sir T. Plumer, 1 Madd. 430, tit. Testmoigne, B. 5. pl. 4; 554.
(1) Knox v. Jenks, 7 Mass. 488. Gray v. Gardner, 3 Mass. 399. Coleman v. Anderson, 10 Mass. 105. Perkins v. Fairfield, 11 Mass. 277. Society for Propagating the Gospel v. Young, 2 N. H. Rep. 310. Ward v. Folly, 2 South. 482. Pejepscot proprietors v. Ransom, 14 Mass. 145. Blossom v. Cannon, 14 Mass. 177. Brown et ux v. Wood et ux, 17 Mass. 72. Sutton v. Uxbridge, 2 Pick. 436.
Titles to leaseholds for long terms of years are sometimes apparently defective in consequence of the loss of the original leases, the only evidence of the duration of such leases, and of the terms under which they are held, consisting of recitals in subsequent assignments. The question here is,-how far
such recitals be depended on as evidence.
If the term be modern, the loss of the original [*]demise, unless conclusively supplied by other testimony, will of course be irremediable, whether viewed in relation to the claim of the reversioner, or as an objection to the title by purchasers. Nor are recitals of it in later deeds more satisfactorily to be depended on; for those recitals, with regard to strangers, are simply inoperative. Where, however the term is of long standing, as of thirty or forty years, and the enjoyment has always been conformable with the terms of the recital, the case materially varies. These circumstances, especially if a frequent change of owners have taken place, constitute per se an argument for the validity of the title, and coupled with the recitals in the successive assignments, furnish a powerful attestation to the genuineness of these recitals, and to the former existence of the lease as recited(a). Again ; where the alleged demise is of great antiquity, and there is proof by existing deeds of a holding on the supposition of such demise for sixty years or more, the evidence in this case is quite as satisfactory as positive evidence; and objections to the title, on the ground solely of the original demise
(a) See Astley v. Child, Comb. Denn d. Tarzwell v. Barnard, 340; 12 Vin. Abr. 232, pl. 10; Cowp. 595.