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priators are entitled to the same privilege. By the second section of that statute, it is enacted, that sonages belonging to the then or previously dissolved monasteries should be held and enjoyed by the new proprietors in as large and ample a manner as the abbeys themselves had before held them ; which clause, though not without opposition(a), has been interpreted to confer on the presentlay possessors a title by common right to the tithes of their impropriate rectories, as absolute and uncontrolled by prescriptions [*]in non decimando, or any other unauthorised pretence, as when those rectories were in the hands of the ancient ecclesiastical corporations (6). When therefore the owner of any particular land sets up a title to the portion of the tithes issuing out of that land, as the only effect between him and the rector is mere retention or non-payment, such a mode of proving title by reason of the above mentioned rule cannot be resorted to : for no presumption is ever made when by possibility it may contradict and subvert a clear rule of law.
In order therefore to raise the presumption of title there must in these cases be something more than long
; (a) See 5 Ves. 186; 17 Ves. Petre v. Blencoe, 3 Anst. 945 127 ; 2 Price, 347, et seq. Gwil. 1484, S. C. ; Meade v. Nor
(6) Bury Corp. v. Evans, Com. bury, 2 Price, 338 ; Berney v. Rep. 643; Benson v. Olive, Bunb. Harvey, 17 Ves. 119 ; Heathcote 284; Fanshaw v. Rotherham, i
V. Aldridge, 1 Madd. 236, 243; Eden, 276, 294 ; Fanshaw v. More, Wolley v. Platt, M'Clel. 468 ; Gwil. 780; Jennings v. Lettis, Ib. Williams v. Bacon, 1 Sim, and 952 ; Nagle v. Edwards, 3 Anst. Stu. 415. 702 ; Gwil. 1442, S. C. ; Lord
possession (1). Documentary evidence (for the reputation of the neighbourhood (a) is nothing) must be adduced. And by this it must be satisfactorily shown, not only that the tithes claimed have not been paid to the owner of the rectory, but also that they have been held by the proprietor of the land out of which they arise, as a distinct possession under a separate and independent title. For such purpose however, it is not necessary that the original deed of severance should be forthcoming (6), which like all other instruments being liable [*]to be lost or destroyed, secondary or presumptive evidence of its existence is admissible. If it can be shown that the tithes in question have at different times formed the specific and express subject of purchase, demise, mortgage, settlement, or testamentary disposition, other evidence will be dispensed with ; and these circumstances will be held effectual to prove that the asserted right is not founded in long retention or non-payment, but in a valid discharge granted by parties competent to make it (c).
(a) Wolley v. Platt, M.Clel. den, 276 ; 3 Gwil. 1177 ; Scott, 468; Donnison v. Elsley, 1 M.Clel. Airey, 3 Gwil. 1174; Strutt v. and You. 1.
Baker, 2 Ves. jun. 625; Foxcroft (6) See 1 Eden, 297. Contra v. Parris, 5 Ves. 221. See also Jennings v. Lettis, 2 Gwil. 952, Kinaston v. Clark, 5 T. R. 265, 959.
n.; Berney v. Harvey, 17 Ves. (c) Medley V. Talmy, Com. 126. The case of Heathcote v. Rep. 652; 1 Eden, 299, 300, cit. Aldridge, 1 Madd. 236, decided by ed ; Fanshaw v. Rotherham, 1 E- Sir T. Plumer, then V. C., seems
(1) In Virginia, it has been held that uninterrupted possession of real estate for twenty seven years is not sufficient ground for presuming a grant, Bolling v. The Mayor, fc. 3 Rand. 563. See 2 Const. Rep. 420. Clark v. Faunce, 4 Pick. 245. Hurst's lessee v. M'Neil, 1 Wash. C. C. 70.
Where presumptive testimony of a severance is given by the production of some ancient deed, it is not material, though the point seems to have been doubted formerly (a), that the person in possession should be able to show all the intervening conveyances, wills, and descents, whereby the title is brought down to him (1). It is enough if he possess the later evidences of his right; that is to say, documents or other satisfactory proof carrying back the title sixty years, - the period at which titles to real property are usually expected to commence. It would be preposterous, that a chasm in [*]the evidence, occurring perhaps at the distance of a century, should furnish ground to let in the common-law right of the rector, after it has been once distinctly negatived (6).
at first sight to oppose the doctrine ficiency and impropriety of the established by cases just cited : plea. but on a careful perusal, it will be (a) See Burslem v. Burbage, 4 found, that although his Honor's Gwil. 1324. argument trenches perhaps too far (6) See Fanshaw v. Rotherham, on the principle of presumption ; Strutt v. Baker, and Foxcroft v. the decision did not turn on the Paris, ubi supra. want of evidence, but on the insuf
(1) After a long possession a deed of partition may be presumed, Hepburn et al. v. Auld, 5 Craneh, 262.
5 Cranch, 262. Where premises had been separated within living memory, in the absence of any deed whereby the defendant or his predecessors bound themselves to repair the fence dividing the premises, held that it could not be presumed from the fact of repairs having been twice done ; but that such evidence though slight ought to have been submitted to the jury. Boyle v. Tamlin, 6 B. & Cres, 329. Two adjoining owners of land having occupied for twenty nine or thirty years according to a division line agreed upon between them cannot question the correctness of the division, although it be not according to their titles, Jackson v. Hubble, 1 Cow. 613. And see Schauber v. Jackson, 2 Wend. 14.
As to the least period of time to which in order to create the presumption of a severance evidence of title should ascend, no precise rule can be offered. In none of the cases which have occurred hitherto has the point been distinctly raised ; nor do they contain data for a satisfactory opinion. In Scott v. Airey, Edwards v. Lord Vernon, Lady Dartmouth v. Roberts, Fanshaw v, Rotherham, and Williams v. Bacon, the period of adverse enjoyment varied from 130 to 170 years. And although in Medley v. Talmy, on forty-two years' possession the rector's bill was dismissed, yet the authority of that case, should we even disregard the subsequent decision in Jennings v. Lettis(a), (which has never been positively overruled), is too slender to be relied on as warranting the general inference, that forty or fifty years are competent to raise the supposition of a legal discharge. It is conceived therefore in the present state of the question, that evidence of perception for much less than a century cannot be safely depended on.
It remains only to notice, that where there is clear and satisfactory evidence, that prior to the restraining statutes, a portion of tithes which has since come to the hands of the owner of the premises was severed [*]from the parsonage to which it originally appertained, long possession alone without any modern proof of holding under a distinct title will be sufficient to establish the asserted right. The rector's claim de communi jure being distinctly negatived, and the continuing adverse enjoyment serving to show that the portion was not afterwards re-annexed to the rectory,
(a) 3 Gwil. 952. See also Wolley v. Platt, M'Clel, 468.
every reason is obviated for calling in aid the additional documentary evidence which the cases of retention usually require(a). The same rule, by parity of reason, applies to the case of tithes held by the land owner, though without any late evidence of a separate title, under an ancient existing discharge granted subsequently to the time when the parsonage became impropriate.
It may not be amiss to add in this place, that disputes between rectors and vicars concerning their respective tithes are sometimes decided on the principle of presumption. Occasions of this sort are,first, where the endowment of a vicarage is lost, and the extent of the vicar's right is by consequence not positively known ;-secondly, where the endowment being extant the vicar sets up a claim to tithes not specified in it ;—and thirdly, where the rector asserts a right plainly at variance with what according to the terms of the endowment belongs to the vicar. In each of these cases, evidence of long enjoyment is adjudged to be conclusive of the pernor's title(b). Thus, [*]If a vicar has been accustomed to receive all the small tithes within the parish, it will be presumed that he was endowed generally of the small tithes; and therefore if a new titheable matter of that denomination be cultivated, he will be entitled to the tithe of it (c). So, where a vicar has been accustomed to receive certain tithes not mentioned in the endowment,
(a) Oxenden v. Skinner, Gwil. Walker, Gwil. 1231 ; Payne v. 1513.
Powlett, ib. 1247; Wolley v. (6) Gibs. Cod. 720; Crimes v. Brownhill, M'Clel. 317. Smith, 12 Rep. 4; Robinson v.
(c) Per the Lord C. B., in JackBrooke, Gwil. 471, 2; Jackson v. son v. Walker, Gwil. 1232.