Зображення сторінки

that he believed there was no case, in which, during the continuance of the same situation in which a party entered into a contract for the sale of a reversion, acquiescence had ever gone for any thing : it had always been presumed, that the same distress, which pressed him to enter into the contract, prevented him from coming to set it aside; and that it was only when he was relieved from the distress that he could be expected to resist the performance of the contract. His Honour, accordingly, in that very case, set aside the sale of a reversionary interest, because of the inadequacy of price, although twenty-five years had elapsed before the filing of the bill.

[*]The acquiescence of the vendor, unless it be excused on the grounds above noticed, or on that of ignorance of the actual or constructive fraud(a), is in general reckoned from the completion of the contract; or if there be a temporary distress or ignorance of the unfairness of the transaction, then from the time when such distress or ignorance terminated(b).

On what particular lapse of time the court might refuse to invalidate a sale of the present kind, cannot very satisfactorily be determined. But twenty years, supposing there are no reasons to excuse the delay, or to excuse its continuance if such reasons did once

and Be. 330; Dunbar v. Tre (6) Medlicott v.. O'Donel, i dennick, 2 Ib. 304. Sed vide Ball and Be. 156; Whalley v. Earl of Deloraine v. Browne, 3 Whalley, 3 Bligh, 1, 12. See alsa Bro. C. C. 633.

per Lord Manners, 1 Ball and Be. (a) Roach v. O'Brien, 1 Ball 342; and Earl of Deloraine v, and Be. 330.

Browne, 3 Bro. C. C. 633.

exist, will of course have that effect(1). And, in Medlicott v. O'Donel(a), Lord Manners accordingly dismissed a bill to set aside certain reversionary leases obtained about twenty seven years before by an agent at a considerable undervalue, referring in direct terms to the period in the statute of limitations. It seems, however, not improbable, that an acquiescence of shorter duration would be held confirmatory of the transaction, and Moth v. Atwood is strong as an authority for the point--although perhaps for the reasons before given, it is impossible to go to the full extent of that decision.

(a). 1 Ball and Be. 156. See page 166.

(1) Wurd v. Van Bokkelen, 1 Paige Ch. R. 100. S. C. 2 Paige R.



Of the presumed Waiver of Rights of Appropriation, --of Resumption, on Forfeiture, Pre-emption, and Election ;-of Rights under Executory Trusts, Devises in Equity, Agreements to Purchase, and Covenants for Renewal ;---of the Responsibility of Executors, Administrators, and Trustees ;-of the Liability of Purchasers to see the Application of the Purchase Money, and of other miscellaneous Rights and Equities.

I. From long non-user, the grant of a privilege to appropriate land, not before capable of exclusive occupation, will be presumed to be abandoned.

This was decided in a case, where it appeared that a grant had been made by the Crown, in 1629, of certain mud lands and lands overflowed with the sea, situate on each side of the town of Gosport, to the intent they might be recovered and embanked, but which right until 1734 was never exercised: on an information against the claimant under the grant, for making erections in a place which, adjoining the town of Gosport, was supposed to come within the terms of the grant, the Court of Exchequer first, and afterwards on appeal, the House of Lords, were of opinion, that the grantees, if they ever had a title to the [*]locus in quo, had, by their long delay to use the

right conferred, abandoned it ; and that the title of the Crown, by the long possession of its subjects, had since revived(a).

But the dereliction of rights affecting land is not in all cases held to be evidenced by mere non-user, Rights to mines and minerals, with the incidental privilege of boring for and working them, are an exception to this rule. When such rights are granted, their being continually exercised is never contemplated, nor when réserved, is it often with a view to immediate use. Hence the supposition of a relinquishment on the ground of non-user is excluded, and the title, however long dormant, unless it be opposed by proof of actual adverse pernancy for twenty years, may be enforced at an indefinite period (6).

II. The right of Resumption for a Forfeiture, when neglected, (if such case does not fall within the statute of limitations,-a point not yet expressly determined), is another instance of the doctrine under consideration ; long forbearance, as for twenty years, especially if there are circumstances evincing a disposition in the party to waive the right, will be held to create a presumption of its relinquishment.

Thus, the forfeiture of a copyhold, from the copyholder's having levied a fine or having committed any other [*]like act in prejudice of the lord's title, or the forfeiture of a lease, from the lessee's not hav

(a) Att. Gen. v. Richards, 2 (6) Seaman v. Vawdrey, 16 Ves. Anstr. 603; Parmeter v. Att. Gen. 390 ; Adair v. Shaftoe, 19 Ves. S. C. on appeal, 1 Dow. 316. 156, cited.

ing paid his rent within the stipulated time, or from his having otherwise acted contrary to the terms of the demise, will, after long neglect on the part of the lord or lessor to take advantage of the forfeiture incurred, be presumed to have been remitted. And this presumption is the more immediate and necessary, where the continuance of the copyholder's.or lessee's interest has been either directly or indirectly acknowledged since the forfeiture ; as where on the death of the copyholder admission has been granted to his heir, or rent subsequently due has been

received from the lessee. The fact of a lessee, who has incurred a forfeiture of his lease, being mentioned under the appellation of tenant in letters written by the landlord after the forfeiture, is also presumptive proof that the forfeiture has been remitted(a).

III. Unreasonable delay will prove fatal to a right of Pre-emption, as it is manifest from the very nature of rights of this kind, that under ordinary

(a) Doe d. Tarrant v. Hellier, due, was not waived by the land3 T. R. 162; and Milfax v. Baker, lord's distraining before the twenthere cited; 1 Lev. 26 ; Malone ty-one days were past, and contiv. Malone, 1 Ball and Be. 32, n. nuing in possession of the distress In regard to the point of recogni- on the premises, after they had extion it may be useful to add, that pired. And in the above-menan act, which does not necessarily tioned case of Doe v. Hellier, it imply an acknowledgment of the was laid down, that an acceptance continuance of the tenancy, affords of rent after a forfeiture was not no ground for presuming a dis- conclusive of the forseiture being pensation of the forseiture. Hence waived ; for the possession of the in a late case at N. P. (Doe d. tenant might remain though his Taylor v. Johnson, 1 Stark. 411), former estate was gone, and the it was held that a right of entry rent might be accepted from him for non-payment of rent within under a tenancy from year to twenty-one days after it became year.

« НазадПродовжити »