being lost, are in practice considered as untenable. For besides the increased presumption in favour of the title from longer enjoyment, there may also be taken into account by a purchaser the improbability of the reversioner's being aware of his right, and the difficulty if conusant of it, while asserting his reversionary title, and thereby necessarily admitting a previous tenancy of some kind by the [*]termor, to avoid giving support to the termor's actual pretensions,

An analogous case presents itself where the documentary proof of a title does not extend backwards sixty years, but the history of it for such period may be collected from recitals of former deeds contained in existing instruments. Now here primo intuitu, from the single consideration that every purchaser is supposed to inspect the deeds he recites, and to be satisfied that they are recited truly, there is much reason to conclude the former existence of those deeds, and the accuracy of the recitals. (1) And if, in addition to this, a long unmolested enjoyment has followed the conveyances in which the recitals in question are found, the presumption then becomes so strong as scarcely to allow of dispute; since to argue from the non-appearance of the instruments recited to their never having existed, would be repugnant to all the rules and deductions of probability (a). Titles accordingly thus situated, are generally regarded as in the main unobjectionable; and though perhaps not so strictly marketable as to be forced upon an un

(a) See Prosser v. Watts, 6 Madd. 59.

(1) Jackson v. Harrington, 9 Cowen, 86.

willing purchaser, are accepted and relied upon as satisfactory and secure.

Circumstances which serve to account for the absence of the earlier deeds, necessarily add weight to the credit which recitals of those deeds in subsisting instruments possess of themselves. Of this description is the not unusual fact, that sometime previously to [*]the date of the oldest deed extant, the property in question formed part of a more extensive estate : from which an inference is conceived to arise, that the muniments of title were retained by the then vendor, or delivered into the custody of a larger purchaser (a)

(a) See also other circumstances are held enough to acount for the enumerated ante, p. 198, which loss or absence of deeds.

[*206]

[*]CHAPTER XII

PRESUMPTIONS OF FACT CONTINUED.

Of presumed Conveyances of outstanding Legal Estates.

THE apparent outstanding of legal estates may commonly be attributed to the absence either of some intermediate conveyance in the direct deduction of the title from prior to succeeding owners, or of a reconveyance from former trustees whose duties have been discharged, or from mortgagees whose debts have been satisfied. It is proposed to consider, under what circumstances in cases of this nature, the principle of presumption may be introduced in order to supply the defect (1).

Where a change in the ownership of an estate appears to have taken place at a remote period, and the title deeds both previous and subsequent are forthcoming, and the possession has gone according to the limitations in the letter, but the deed by which the change of ownership was effected does not appear, such deed, unless the case be met by contrary

(1) Schauber v. Jackson, 1 Wend. 14. Ricard v. Williams, 7 Wheat. 109. M'Clure v. Hill, 2 Const. R. 420.

proof, will be presumed. On this ground, where a chasm in the documentary evidence of a title occurred between a will creating a trust and a deed forty or fifty years [*]old purporting at that time to convey the trust estate to trustees then newly appointed, successive conveyances from the old to new trustees were accounted to have been regularly made (a). In like manner, the existence and regularity of old mesne assignments of leasehold property will be presumed, where a corresponding possession is shown to have followed the later transfers (b). And on a similar principle, it seems probable, that where the title to a term is derived immediately through assignment from a person described as executor or administrator of a former owner, but the will, or letters of administration, cannot be found, nor proper evidence of them obtained, enjoyment for thirty or forty years under the assignment would constitute satisfactory proof, that the will or letters of administration once existed (c). Nor, as it is conceived, would the circumstance of the probate of the will, or of the grant of the administration, not being recorded in the ecclesiastical court, decisively negative the supposition; for the want of enrolment, without at all violating

(a) Roe d. Eberall v. Lowe, 1 Barnsley, 1 Mau. & Selw. 377; H. Black. 446, 459.

(b) Goodwin v. Baxter, 2 Black. Rep. 1228; Anon. 12 Vin. Abr. 233, pl. 15. See also per Lord Eldon, 11 Ves. 350.

(c) See and consider Rex v. [*208]

and Doe v. Murless, 6 Mau. & Selw. 110; which cases show, that a will or letters of administration may be presumed on proper occasions.

probability, may be accounted for on the score of negligence (a) (1).

It has likewise been determined, that long possession of copyholds under a devise affords the presumption of a surrender having been made to the uses of the will(b).

[*]The deeds proper to have caused an alteration in the nature or quantity of interest vested in the earlier proprietors of a family estate,-for example, those which are requisite to convert a tenancy in tail to a tenancy in fee simple,—may likewise, it should seem, be presumed, where from the more modern documents of title it is deducible, that such alteration must in all likelihood have been effected, and the later generations of the family have invariably considered themselves and treated the estate, as possessing the unqualified dominion of it. Such, at least, was the construction in a case where, about two centuries before, an entail had been created of copyhold lands, but several of the issue in tail, on coming succe ssively to the property, had been admitted as tenants in fee simple (c). And in another case (long

(a) See per Lord Keeper North, 1 Vern. 195, on an analogous question.

(b) Lyford v. Coward, 1 Vern. 195, edit. by Raithby; 2 Cha. Ca. 150, S. C.; Knight v. Adamson,

2 Freem. 106. See also Wilson v. Allen, 1 Jac. and W. 611, 620.

(c) Wadsworth's case, Clayton's Rep. 26. See also per Lord Loughborough, 1 H. Black. 461.

Gray v. Gardner, 3 Mass. 399.
Perkins v. Fairfield, 11 Mass.

(1) Knox v. Jenks, 7 Mass. 488. Coleman v. Anderson, 10 Mass. 105. 277. Pejepscot Proprietors v. Ransom, 14 Mass. 145. Blossom v. Cannon, 14 Mass. 177. Society for propagating the Gospel v. Young, 2 N. H. R. 310. Brown v. Wood, et ux. 17 Mass. R. 72.