presumptive title and presumptive discharge, and also the sources of conflicting inference, would be a task not only difficult, but in a considerable measure useless. Deductions from peculiar or incidental circumstances (and it is on such circumstances that the decision of individual cases commonly depends) seldom furnish any general principle. There is, however, one feature so peculiarly characteristic of all the cases in which presumptions of the kind in question are made, that it merits particular attention. This is lapse of time: with regard to which it may be observed, that as presumptions of fact proceed universally on the supposition, [*]that the facts presumed were formerly capable of being established by direct proof, and that the evidence only has been destroyed, or lost, or decayed, by the common accidents of time; reason manifestly requires, that lapse of time, since the occurrence of the presumed facts, should be held essential in order to let in the presumption. Indeed, so important an influence has lapse of time in all cases of this nature, that when of great length, and unaccounted for, it is deemed sufficient of itself, and without the aid of other circumstances, to resolve the question of right.(1) And this is not only warranted by the maxim interest rei-publicæ ut sit finis litium, but any supposition that would go to reconcile the usurpation of an estate with long acquiescence on the part of the rightful owner, (1) Presumptions from evidence of the existence of particular facts, are in many cases, if not all, mixed questions of law and fact. If the evidence be irrelevant to the fact insisted upon, or be such as cannot fairly warrant a jury in presuming it, the court is so far from being bound to instruct them that they are at liberty to presume it, that they would err in giving such an instruction. Bank U. S. v. Corcoran, 2 Peters, S. C. 133. [*5] or the abandonment of a pecuniary demand with a subsisting right to it, is utterly incompatible with the activity which distinguishes mankind in whatever relates to the acquisition or preservation of property. It follows, that the only rational conclusion from long unmolested enjoyment of real estate, or of rights incident thereto, is, that the title was lawfully acquired; and from undue delay in urging a personal demand, that such demand is satisfied. Impressed with this reasoning, courts both of law and equity invariably discountenance stale and neglected claims. They hold it to be just and reasonable, that every presumption, which can be fairly made, is admissible to repel old dormant rights :(a) and following up this principle, will, in favour of long possession, [*]presume as well the existence of the needful instruments of conveyance(b)(1) as the observance of all [*]such acts (a) See per Lord Alvanley, M. And such, indeed, is the inclinaR., 2 Ves. Jun. 583. (b) The only exception to this principle occurs in the cases of fines and recoveries, which cannot, it seems, be presumed without evidence directly pointing or alluding to them.-Acts of parliament (Cowp. 215; 1 Jac. and Walk. 63;) and grants from the crown, (Cowp. 102; 1 Jack. and Walk. 159;) though assurances of record are constantly presumed, even within the time of legal memory. tion, generally, to maintain a title founded on long possession, that, in some instances, one device failing, another has been adopted. Thus, in Goodtitle v. Baldwin, 11 East, 488, where the supposition of a grant from the crown was rebutted; a licence to occupy was presumed, in order to give validity to an enjoyment of several years standing. It has been considered doubtful, whether deeds affecting lands in Gray v. Gardner, 3 Mass. 399. (1) Knox v. Jenks, 7 Mass. 488. Coleman v. Anderson, 10 Mass. 105. 277. Pejepscot Proprietors v. Ransom, 14 Mass. 145. Blossom v. Cannon, 14 Mass. 177. Society for propagating the gospel v. Young, 2 N. H. R. 310. Brown v. Wood, et ux. 17 Mass. 72. and solemnities as are requisite to make actual the register counties, can be presumed, in opposition to the want of registration; or to state the point more explicitly, whether the allegation of releases of ancient claims; of reconveyances of old legal estates, by trustees or mortgagees; of surrenders of outstanding satisfied terms; or of conveyances from a prior to a succeeding owner; (which are the usual instances of presumed deeds) must not, in the case proposed, be necessarily regarded as contrary to fact. But doubts of this nature, it is conceived, do not rest on very solid foundation. The object of the Registry Acts was to prevent the commission of fraud; and to protect bona fide purchasers and mortgagees against preceding secret acts, and fraudulent conveyances. And this was their only object: the preamble to each of the statutes adverts solely to the injuries sustained by persons innocently buying, or advancing money, on estates previously sold or encumbered; and the enacting clauses, in order to provide a suitable remedy, merely declare, that all future conveyances of lands should, as against subsequent purchasers for valuable consideration, and mortgagees be adjudged fraudulent and void unless memorials of such conveyances were registered before the registering of the deeds under which the subsequent pur : chasers or mortgagees claimed. (See 2 & 3 Anne. c. 4; 5 Anne. c. 18; 6 Anne. c. 35; 7 Ann. c. 20; and 8 Geo. 2. c. 6.) Nor is there any thing in these statutes making it imperative on parties to register the assurances through which they derive title; an option only is given. The direction in the acts is, that a memorial may (in the 2 & 3 Anne. c. 4. are inserted the words," at the election of the persons concerned,") be registered: and consistently with this, there is nothing either expressly declaring, or tacitly im-. plying, that the want of registration should be otherwise prejudicial to titles, than against subsequent purchasers and encumbrancers. Then why shall these legislative provisions be construed to extend to cases which the legislature never contemplated, which do not fall within the mischief intended to be remedied? It. cannot be supposed, that the object of the register acts was to make the ownership of estates less secure ;-to supply means whereby (to use a judicial expression) holes may be picked in titles. Yet such would be the inevitable consequence, whenever the registration of material instruments should be omitted; a consequence which, in some cases, would not only contravene the principles of justice, but defeat the very end and pur and assurances valid; (a) (1) and will also, in sup pose, of the statutes themselves. Suppose, for example, the case of a first and second mortgagee, the latter only of whom has registered his security, and got into possession; the first discovers, as he imagines, an old outstanding legal estate, or satisfied term, and obtaining from the representative of the trustee or termor, a conveyance or assignment, brings his ejectment; when the second mortgagee produces in defence an old unregistered deed surrendering the term, or reconveyancing the estate from the original trustee :-or to put another case; suppose the conveyance to the mortgagor or his ancestor, being of above twenty years' standing, had not been regis. tered; that the first mortgagee obtains a conveyance from the preceding owner, and that the second rests his title on the unregistered conveyance to the mortgagor :-Is it possible in either of these cases seriously to imagine, that the plaintiff in ejectment would be allowed to recover? If so, the registry acts would frustrate their own design. The negligent, or in the eye of the legislature the fraudulent mortgagee, would deprive the diligent and honest mortgagee of the advantage meant to be ensured him. But, doubtless, the courts would pause ere they made such a decision. ing to the principal point is obvious. If the re-transfer of the outstanding legal estate, the surrender of the satisfied term, or the conveyance from the preceding owner, could not, in the cases just. proposed, be avoided on account of their non-registration; the presumption, by parity of reason, of a re-transfer, surrender, or conveyance, could not, it is conceived, under similar, and therefore under no circumstances, be held conclu sively rebutted, by the fact of a registered memorial of the presumed deed not being found. The cases are parallel: they cannot be distinguished on any clear or satisfactory principle. Another case may, likewise, be mentioned as bearing strongly on the question; that of an easement, as a right of road, which has been uninterruptedly enjoyed for twenty years. Could the presumption from length of time be obviated by showing that no grant had been registered?—and yet the grant of a right of way ought to be registered, as much as any other instrument which relates to landed property. It is a deed affecting the estate, over which the way runs. But see on the subject of this note generally, Doe v. Hirst, 11 Price. 475. (a) Allusion is here made to the solemnities of livery of seisin seal The application of this reason- ing and delivery, &c. port of [*]the extinction or satisfaction of old demands, presume proper deeds of discharge. (a)(2) It is obvious to remark, that if a contrary doctrine prevailed, and it were necessary to adduce satisfactory evidence that every act which is presumable was in reality performed; time, far from strengthening titles, would, by increasing the difficulty of proof, gradually diminish their security; and instead of affording protection against ancient demands, would powerfully contribute to their assertion. Time being thus available as prima facie testimony of instruments conferring or extinguishing rights, is a fortiori efficacious in establishing and giving admissibility to evidence of an inferior order. Hence alleged copies of instruments, whose former existence would account for the quiescence of present claimants, are in the first place received as authentic: and recitals, in ancient deeds, of incidents, such as marriages, heirships, deaths, &c., explanatory of the devolution of an estate, are taken to be faithful representations of facts. In regard to property which admits of a qualified enjoyment, long usage, while supplying presumptive [*]proof of title, determines at the same time, and (a) See 2 Ves. jun. 583. (1) Clap v. Cofran, 7 Mass. 98. 105. Gray v. Gardner, 3 Mass. 399. Colman v. Anderson, 10 Mass. 177. Pejepscot Proprietors v. Ransom, 14 Mass. 145. Abraham v. Matthews, 6 Munf. 159. (2) Ricard v. Williams, 7 Wheaton, 59. Allston v. Saunders, 1 Bay. 26. Sumner v. Phito, 2 Con. Rep. 607. |