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ment, or for the benefit of the mortgagee. But this argument is entitled to little weight. For without insisting on the ground above stated, that such assignment was unnecessary, it belonged clearly, in the first case, to the intended wife or her friends to demand and prepare the requisite instrument; and in the second, as the universal course of practice evinces, it was not the part of the mortgagor to point out, but of the mortgagee to consider and decide on, the assurances proper for his security.
The only point remaining to be noticed is the assertion, that an assignment deferred until the lapse of five or three years after the time when regularly it should have been made, can never be considered as available for the purpose of a collateral security. That this position is not tenable seems to flow as an immediate consequence from what has been before observed with regard to the protection, which (as in Goodtitle v. Morgan) the assignment of a satisfied term has been always held to afford against mesne encumbrances; and this conclusion is corroborated by the verdict which was given in the case of Goodtitle v. Jones(a), where the jury found a term to be in existence, although the assignment of it for the security of a purchaser was not obtained until eleven years [*]after the purchase was completed, and until an action of ejectment had been in fact commenced against him by an adverse claimant.
The rights of the parties in Doe v. Hilder, as decided by the Court of King's Bench, have since been
(a) 7 Term Rep. 43, ubi sup.
reversed; though it should be observed, that the reversal was grounded principally on a fact not adverted to at the first trial. An ejectment was brought by the defendants in the former action to recover back the estate ; and at the trial they produced in evidence a mortgage deed, still in force, which was made to one Markwicke in 1814, and which contained a general declaration of the trust of all outstanding terms for his benefit. It appeared that the assignment of the term in 1779 upon trust to attend the inheritance had been delivered over to Markwicke, and that a memorandum of that instrument had been inserted in a schedule of the title deeds, which was made at the time of the mortgage and was signed by the mortgagee. In reply to these circumstances, it was urged, that as no notice was taken in the mortgage deed of 1814, of any particular term, nor an assignment made of the term in question, and that when it was recently assigned, or attempted to be assigned, the interest of the prior mortgagee was in no manner provided for or alluded to, there were not sufficient reasons for impeaching the former decision. But under the direction of Garrow, B., who tried the cause, a verdict was returned for the plaintiff. In his charge to the jury, he said, that “the facts as they then appeared, were very different from those proved at the formertrial; and that [*]his present opinion was sanctioned by the suggestion in that very case.
Here the deeds were handed over to the mortgagee before the settlement and the conveyance to Newman's mother, which accounted for the term not having been mentioned in those securities. The circumstance of the deed haying been scheduled and handed over to Markwicke showed that the term had not been surrendered." A
new trial was afterwards moved for,.but refused by the Court of Exchequer; and both Richards, C. B., and Mr. Baron Graham took the opportunity of strongly expressing their disapprobation of the doctrine laid down by the Court of King's Bench. The Lord Chief Baron said, that the doctrine of presumption had of late been carried to a frightful extent ; and Mr. Baron Graham observed, that he had never suffered these presumptions to be made, except in cases very strongly warranting them, and where nothing was shown to the contrary.
This account of the second ejectment and motion for a new trial is abridged from the statement in Mr. Sugden's late edition of his Treatise of the Law of Vendors and Purchasers(a). That able writer has also brought together several dicta of the Lord Chancellor, wherein his lordship pointedly and earnestly reprobates the principle of the cases just considered(b). Sir T. Plumer, M. R. likewise expressed a similar [*]disapprobation of it(c): and neither in the offices of the Masters in Chancery, nor in common practice, is the doctrine received or acted on as being permanently established. The mischievous effect of the above decisions is not, however, inconsiderable. They tend to perplex and create doubts in cases where no difficulty would otherwise occur. Pur
(a) Seventh Edit. 437. Mr. fully shows that such a presumpSugden adds the following note :- tion ought not to be made on slight " It appears, therefore, that the grounds." presumption was made on the first (6) Sugden on Purchases, 7th ejectment, against the real faets Edit, 139, et seq. and merits of the case as they ulti (c) See 2 Jac. & Walk. 159. mately appeared.
chasers scarcely know when they may, and when they may not, rely on attendant satisfied terms for their protection; and vendors are encouraged in unjustly objecting to procure representations to trustees in whom old terms were formerly vested, insisting that such terms must be presumed to be surrendered.
Thus far, our attention has been confined to the case of a term assigned over to trustees, for the express purpose of being kept on foot, and attending the inheritance. Between this case, and that of a term which has never been so assigned, nor since the completion of the purpose for which it was created has been noticed as continuing in existence, an important difference occurs on the question of presuming a surrender. The objection in the former instance, which principally arises from the necessity of contravening the declared intention of the parties, cannot apply here where no such intention is manifested. Unembarrassed by that consideration, it is accordingly held that time alone will afford evidence of the surrender of a satisfied term: and fifty or sixty years, [*]though the estate during all such period continues in the same family, will be sufficient for this purpose(a). The ground of presumption is of course stronger, if in the interim the estate has been frequently the subject of mortgage or sale(6).
The lapse of twenty years, however, unless sup
(a) Emery v. Grocock, 6 Madd. on this principle. But see Doe v. 54. The decision in Bartlett v. Scott, 11 East, 478, ubi supra. Downes, 3 Barn. and Cress. 616, (6) Ex parte Holman. Sugden may also perhaps have proceeded on Purchases, 7th Edit. 443.
ported by other circumstances, cannot be confidently depended on as evidence of a surrender. For even courts of law will not sanction the alleged destruction of a term, until after an interval of twenty years from the time. when it is shown to have been satisfied (a).
(a) See and consider Doe v. Calvert, 5 Taunt. 169.