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vey, surrender, release, assign, or otherwise assure the said lands or property or estate or interest [*]to such persons and in such manner as the said court should direct; and that every

such

conveyance, release, surrender, assignment, or assurance, should be as valid and effectual, to all intents and purposes, as if the persons being out of the jurisdiction, or not amenable to the process of the said courts, or not known to be alive, or having refused, had by themselves executed the same.

[*326]

[*]CHAPTER XIII.

PRESUMPTIONS OF FACT CONTINUED.

Of presumed Surrenders of Terms.

There are perhaps few questions which have given rise to more discussion, or which, from the opposite determinations that have prevailed, have been kept longer in suspense, than that which relates to the

presumed surrender of terms. Nor are there many subjects of legal inquiry more interesting or more important than the present, whether we regard the high authorities from whom principles so contradictory have emanated, or the magnitude of the interests which are affected. We shall therefore enter more at large than it has yet been our custom to do, into the particulars of the various cases, in which the matter treated of in this chapter has come under judicial considera

tion (1).

It was declared by Lord Mansfield, in the case of Lade v. Holford (a), that he and many of the judges

(a) Bull. N. P. 110. See also Bristow.v. Pegge, 1 T. R. 758, n.

(1) Livingston v. Livingston, 4 Johns. Ch. 287. Springstein v, Schemerhorn, 12 Johị. R. 357,

had resolved, never to suffer a plaintiff in ejectment to be nonsuited by a term standing out in his own trustee, or a satisfied term to be set up by a mortgagor against a mortgagee; but that they would, in such cases, [*]direct the jury to presume the term surrendered. This rule was on several different occasions adverted to by Lord Kenyon in terms of general approba. tion (a);- but it must be understood, said his Lordship, with this restriction, that although in either case the jury may presume the term surrendered, yet without such (presumed] surrender the estate in the trustee must prevail at law(6). The proposition even thus qualified has not, however, commanded univers sal assent. For admitting, that in some cases the doctrine may possibly correspond with the strict principles of justice, yet the effect of such doctrine, if not to overthrow, is at least to weaken the protection, which, according to numerous decisions both in law and equity, the owner of an estate derives from a satisfied attendant term vested for his benefit in the person of his trustee.

The advantage which a purchaser acquires by the assignment of a satisfied term to a trustee of his own nomination, was broadly stated by Lord Hardwicke to be a protection against all estates, charges, and encumbrances, created intermediate between the raising of the term and the purchase(c).. The impor. tance and beneficial tendency of this rule, whether as respects the security it affords to purchasers, or the consequent facility of disposition it gives to vendors,

(a) In Doe v. Staple, 2 T. R. 696, and in Roe v. Reade, 8 T. R. 122.

(6) Vid. 7 T. R. 45.
(c) I T. R. 768.

is obvious: and it cannot excite surprise, that under an impression of its extensive utility Lord Eldon, adverting to the rule laid down in Lade v. Holford, though qualified [*]by the restriction imposed by Lord Kenyon, should have expressed his dissatisfaction of it. “ Titles to property,” said his Lordship, " may possibly be found to be very considerably shaken by the doctrine of the Court of King's Bench · as to satisfied terms. In equity a second mortgagee

having no notice of the first mortgage, may, if he can get in a satisfied term, thereby protect his estate against the first mortgagee. But when once it is said at law, that a satisfied term shall not be set up in an ejectment, the whole security of that title is destoyed; so that even with the modern correction which the doctrine has received, namely, that you may set up the term, though satisfied, and put it as a question to the jury, whether a surrender is to be presumed, it still seems to me to be very dangerous between purchasers. The leaning of the court ought to be that it was not surrendered : and I fully concur with Lord Kenyon, that it is not fit for a judge to tell a jury, they are to presume a term surrendered merely because it is satisfied. To that end there ought to be some dealing upon it : otherwise you take from a purchaser the effect of his diligence in having got in the legal estate ; to the benefit of which he is entitled.” (a)(1).

A recognition of the importance attached to satisfied

(a) Vid. 6 Ves. 184-5.

(1) Schauber v. Jackson, 2 Wend. 14.

terms attendant on the inheritance, seems to have formed the ground of decision on one of the points in Doe d. Graham v. Scott(a);-which occurred in 1809. There the lessor of the plaintiff sought to [*]recover a rectory;—to which he had been presented by the Earl of Oxford, jointly with three other persons in whom the remainder of an ancient term was vested,-from the defendant, the then incumbent, but whose title as rector, it was insisted, had ceased by reason of his collation to another living. Mr. Scott rested his defence, in part, on the ground, that the term in question was not then subsisting, but must be presumed to have been surrendered, and that as the Earl, previously to Mr. Graham's presentation, had granted the rectory, among other estates, to trustees for payment of his debts, none of the parties presenting had, at the time, any legal interest in the rectory; so that the presentation of Mr. Graham was void. The term it appeared, had been created in 1727 by an ancestor of Lord Oxford's, to secure 20,0001. to a mortgagee. The next mention of it was in an indenture of 1751, (the marriage settlement of the late Lord Oxford), wherein it was stated that 27,0001., part of the lady's fortune, was to be applied in discharge of the mortgage : but from that time no notice had been taken of it, nor was there any other evidence of its existence, until in a mortgage deed in 1802, (subsequently to Mr. Scott's presentation), the term was assigned by the representatives of the original termors, under the direction of Lord Oxford, as a further security for the mortgage money.' At the trial the jury returned à verdict for the plaintiff, un

(a) 11 East. 478.

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