for the production of the deed of 1735: he does not, [*]however, assign the terms, but only says, I find this deed in my possession and I covenant to produce it.' He treats the terms, therefore, as subsisting in parchment, but says nothing as to whether they are then subsisting in interest or not. The case of Doe v. Scott is very different from this: there the term had been dealt with as subsisting, and it would, besides, have been prejudicial to the owner of the inheritance, if a surrender had been presumed. I think, therefore, that the learned judge was quite right in his directions to the jury upon this point."

The facts of the case of Doe v. Hilder were these: Mr. Naylor, in 1762, made a demise of land by way of mortgage for 1000 years, and afterwards by his will devised the land to trustees to sell. In 1779, the trustees conveyed part of the estate to John Newman in fee; and the term was assigned to W. Denman, in trust for Newman, and to attend the inheritance. The property descended from John to his nephew Richard Newman, who, upon his marriage in October, 1814, settled it on himself for life, remainder to his wife for life, remainder to the issue of the marriage, with the reversion to himself in fee. In 1816, Richard Newman and his wife conveyed their lifeestates and his reversion to Sarah Newman, Richard's mother, as a security for a sum of money. Sarah Newman died in the following year, having devised the premises to a person under whom the defendant claimed as tenant. In 1819, an ejectment having been brought by the lessor of the plaintiff on a judgment recovered in 1808 against [*]Richard Newman, and upon a writ of elegit and inquisition thereon in

1818 finding R. Newman to be seised in fee of the premises in question, the devisees of Sarah Newman, in order to the defence of the action, procured an assignment of the term of 1000 years from the son and administrator of W. Denman to a trustee for them. The deed creating the term was produced by a purchaser of the larger part in value of the estate comprised in it. The deeds of 1779 and 1819 were produced by the defendant. At the trial Mr. Justice Park directed the jury to presume a surrender of the term, which they did in express words, and returned a verdict for the plaintiff. A rule nisi was obtained in the following term to set aside the verdict; but, after argument before the Court of King's Bench, and time taken to consider, it was discharged,-the Judges approving of the direction given to the jury. The judgment of the court was delivered by Abbott, C. J.; after stating the circumstances, he said, "We are of opinion, that in this case a surrender of the term might lawfully and reasonably be presumed. The principal ground of objection to the presumption was, that such a presumption had, in no instance hitherto, been made against the owner of the inheritance; the former instances being, as it was said, all cases of presumption in favour of such owner. But this proposition appears to be too extensively laid down. One of the instances in which it has been said that a surrender shall be presumed, is the case of a mortgagor setting up a term against his own mortgagee; and this is said generally, and without distinction, between [*]a mortgagee in fee or for years. But if such a term be set up against a mortgagee for years, and a surrender presumed, the presumption is made against, and not in favour of the owner of the inheritance.

It is made against his interest at the time of the trial, but in favour of his honesty at the time of the mortgage; for if the term existed at the time of the mortgage, he ought in honesty to have secured the benefit of it to the mortgagee at that time, and not to have reserved it in his own power, as an instrument to defeat his mortgage. And upon the same principle on which a surrender is presumed in the case of mortgagor and mortgagee, we think it may reasonably be presumed in the present case; though the principle is applicable not to the judgment creditor, but to other persons. One of the general grounds of a presumption is, the existence of a state of things, which may be most reasonably accounted for, by supposing the matter presumed. His Lordship then instanced the case of a right of way, which from long use is presumed to be founded in a grant, and from long nonuser is supposed to have been surrendered (1). He then proceeded," Where a term of years becomes attendant upon the reversion and inheritance, either by operation of law, or by special declaration, upon the extinction of the objects for which it was created, the enjoyment of the land by the owner of the reversion (thus becomes the cestui qui trust of the term) may be accounted for by the union of the two characters of cestui qui trust and inheritor, and without supposing any surrender of the term; and therefore in general such enjoyment, though it may be of very long continuance, may possibly furnish no ground to presume [*]a surrender of the term. But where acts are done or omitted by the owner of the inheritance,

(1) Schauber v. Jackson, 2 Wend. 14. Ricard v. Williams, 7 Wheat. 109.

and persons dealing with him as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made; in such cases the things done or omitted may most reasonably be accounted for, by supposing a surrender of the term; and therefore a surrender must be presumed(1). We think there are such things in the present case. In the year 1814, Richard Newman the debtor, and then owner of the inheritance, made a settlement upon his intended marriage, which took place immediately. Upon such an occasion the title and titledeeds of the husband would probably be looked into by professional men, on the part of the husband at least, if not on the part of the wife also: and notwithstanding the assertion, that it is not usual, on such occasions, to take any notice of an outstanding satisfied term; we cannot forbear thinking that such a term always ought to be, and frequently is, in some way noticed, either by the deed of settlement, or by some separate instrument; because if it be not noticed, and the termor be not called upon to assign the term to the uses of the settlement, nor any declaration of trust made of it to those uses, it may afterwards be made an instrument of defeating the settlement. The title-deeds usually remain with the husband, and if he be driven by necessity to borrow money, he may meet with a lender who has no notice of the settlement, and may by handing over his deeds, and obtaining an assignment of the term to him, and other conveyances, give to him a title that

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

[*]must prevail both at law, and in courts of equity against the settlement. The supposed practice of taking no notice of outstanding terms on such an occasion appears to have been insisted upon before Lord Hardwicke, in the case of Willoughby v. Willoughby, as applied to marriage settlements and purchases. But that very learned judge, in giving his judgment in that case, says, he had inquired of a very learned and eminent conveyancer, and could not find that there had been any such general rule. And he afterwards proceeds to say, Where the assignment has been generally in trust to attend the inheritance, and the parties approve of the old trustees, they may safely rely upon it, especially in the case of a purchase or mortgage, where the title-deeds always are, or ought to be, taken in; for if he has the creation and assignment of the term in his own hands, no use can be made of it against him. Such instances as these may account for the practice in many cases, but cannot constitute a general rule.' If in the present case it had appeared, that the deeds relating to the term were delivered to the trustees of the marriage settlement, as one of the securities for the settlement, the case would have stood on a very different ground. The marriage settlement, however, is not the only occasion on which we think it may most reasonably be supposed, that this term, if existing, would have been brought forward. It appears that in 1816, the same Richard Newman, being then indebted to his mother, and desirous of giving her security for the debt, prevailed upon his wife to join with him in conveying to her the interests they derived under the settlement. Upon this occasion, an assignment of the [*]term, or a delivery of the deeds relating to it, would [*239] [*240]

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