survivor of them in fee. The marriage took effect: but although the immediate estate in possession of the [*]whole of the copyhold afterwards became vested in Mrs. Lascelles, no surrender was made to the uses of the settlement. She died in 1764, having had an infant daughter, but who was also then dead. Some time after the death of his wife, Mr. Lascelles was admitted to the copyhold; and in the entry on the court rolls it was stated, that he claimed admittance by virtue of the settlement on his marriage with Elizabeth Dawes, the habendum in such entry being "to Edwin Lascelles pursuant to the said marriage settlement." After his decease, which took place in 1795, an ejectment for the copyhold in question was brought by the heir at law of Mrs. Lascelles; in answer to which it was urged, among other grounds, that under the circumstances of the case, and after a possession for above twenty years, a release to Mr. Lascelles from an ancestor of the lessor of the plaintiff ought to be presumed. But the Court observing, that Mr. Lascelles had a right to admittance as tenant by the curtesy, to which his possession might be referred, held that sufficient grounds were not shown to give probability to the presumption of a release (a).

It is observable, however, that although time alone be not sufficient in cases of the last description, to afford an inference that the legal estate has been conveyed, yet it does not seem necessary, in order to establish such supposition, that direct testimony of the fact should be adduced. The courts are satisfied with reasonable

(a) Doe d. Milner v. Brightwen, 10 East, 583. See also Kenyon, 2 Esp. Rep. 500.

[*]probability, and will receive circumstantial evidence as equally efficacious in this respect with positive. Thus the long and frequent exercise of such acts of ownership by the party beneficially entitled as make it probable that the legal interest has resided in him, will enable the courts to entertain the presumption. So that if the proprietors of an estate have from time to time granted beneficial leases (a), mortgaged, or disposed of certain parts of it absolutely by sale (b), or have otherwise dealt with it so as to give reason to think that the title must, at different times, in the course of negociations and transactions with third persons have been inspected, and due care taken that the right to the future legal enjoyment was secure; in these and similar cases, a strong and sufficient ground will be afforded for presuming, that either before or at the time of such transactions, the. legal estate was got in. But, on the other hand, such acts of ownership as might have been exercised whether the proprietor possessed the legal or only an equitable estate, or which would not necessarily lead to an investigation of the title, cannot, it should seem, be depended on as justifying the supposition of a conveyance. Thus, the making of leases for short terms at rack rent is altogether incompetent to that end (c). And where a trustee, by re-conveying, would obviously be guilty of a breach of trust, there the strongest and most decisive acts of ownership

(a) Lady Stafford v. Llewellin, Greenwood, 1 Turn. 29.

Skin. 77.

(b) See per Le Blanc, J. in Keene.v. Deardon, 8 East, 266; and

per

Lord Eldon in Nouaille v.

(c) Goodright v. Swymmer, 1 Lord Kenyon's Rep. by Hanmer, 385.

[*]by the party beneficially interested, even a sale for valuable consideration, will not amount to presumptive evidence of a re-transfer having been made of the legal seisin (a).

A further instance in which the re-conveyance of a legal estate will be presumed, is where a mortgage in fee of remote date appears to have been long satisfied. This presumption is of course strengthened, if the mortgage deed be found in the possession of the owner of the property; and still more if the estate has, at different recent periods, formed the subject of mortgage or sale.

In 1745, the surviving trustee of a will, for purposes connected with his office, mortgaged the trust estate in fee. The mortgage debt, as it appeared, was soon afterwards paid off; for from the year 1753, when the party beneficially entitled came into possession, to 1823, when his son and heir entered into an agree ment for sale of the estate, no claim for principal or interest had been made. The deed of 1745 was, together with the other documents of title, in the hands of the proprietor: but there was no other evidence of a re-conveyance of the legal estate by the mortgagee, than what was supplied by the length of time, and the fact of a second mortgage having been made in 1791. Under these circumstances, the purchaser refused to complete his contract, insisting that the legal fee must be considered to remain outstanding

(a) Keene v. Deardon, 8 East, 248.

[*]in the representatives of the mortgagee of 1745: but Sir J. Leach, V. C., on a bill for specific performance by the vendor, declared that unless the rule were, that nothing less than a production of the deed of reconveyance should be admitted as proof,-which certainly was not the rule, the court was bound, in the present case, to presume a re-conveyance; and that the title was such as a purchaser was compellable to take(a)(1).

In this place, it may be remarked, that where a mortgage deed in fee, absolutely voidable by payment of the debt on a certain day, is in the custody of the mortgagor, and it cannot positively be shown that interest after such day was ever paid, the primâ facie supposition in this case is, that the loan was repaid at the time appointed, and consequently that the legal estate does not remain outstanding(b).

It has more than once been contended at the bar, that for the purpose of supporting a long possession by cestui que trust, a disseisin of the trustees might under particular circumstances be presumed. The position is not perhaps altogether unsustainable; for that such circumstances may exist has even been intimated by the Court(c): though a decision to that effect, has not, it is believed, yet been made. But,

(a) Cooke v. Soltau, 15 Dec. 1823, reported in Paget's Law Journal for Feb. 1824, p. 30; 2 Sim. and Stu. 154, S. C.

(6) Wilson v. Witherby, Bull. N. P. 110.

(c) See I Ves. 435, and 2 Mer. 360.

(1) Emery v. Graycock, 6 Mad. 54.

indeed, if the point were established, it could not often be of peculiar utility; because the same facts which would support [*]the inference of a disseisin would equally establish that of a conveyance-perhaps with still higher probability; the relation between trustee and cestui que trust being regarded at law precisely as that of landlord and tenant, and the possession of the latter as consistent with, not adverse to, the right of the former (a).

This chapter may not inappropriately be concluded with observing, that by a late Act of Parliament (b), it is enacted, that when any persons seised or possessed of any lands or other property, or any estate or interest therein, upon trust or by way of mortgage, should be out of the jurisdiction of or not amenable to the process of the Court of Chancery or Exchequer, or it should be unknown or uncertain whether they be living or dead, or that such persons should refuse to convey or assure such lands or property or estate or interest to the persons entitled thereto, or as they should direct, or to new trustees duly appointed by virtue of some power or authority or by the Court of Chancery or Exchequer, either alone ort ogether with any continuing trustee or trustees, as occasion should require ; it should be lawful for the Court of Chancery or Exchequer to appoint such person or persons as to such court should seem meet, on behalf and in the names of the persons seised or possessed as aforesaid, to con

(a) 2 Vent. 329 Doe. v. Swymmer ubi supra ; Smith v. King, 16

East, 283.

(b) 6 Geo. IV. c. 74, s. 5.