A Letter to Charles Butler on the Doctrine of Presuming a Surrender of Terms Assigned to Attend the Inheritance

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Сторінка 32 - Maundrell (/), which was decided in 1804, the question arose, whether a purchaser could protect himself against dower by a prior term of years, unless it was actually assigned to a trustee for him ; and the Lord Chancellor ultimately decided that he could not ; because such had been considered the general rule ; but his Lordship, upon principle, thought that the purchaser would, as in other cases, be entitled to the benefit of the term without an actual assignment. He said that he doubted whether...
Сторінка 24 - that he and many of the judges had resolved never to suffer a plaintiff, in ejectment, to be non-suited by a term standing out in his own trustee, or a satisfied term set up by a mortgagor against a mortgagee; but that they would direct the jury to presume it surrendered.
Сторінка 37 - Newman for 8000/. and a writ of elegit and inquisition thereupon in the year 1818, finding Richard Newman seised in fee of the premises in question. It was further proved that the defendant occupied the land as a tenant, and had declared that he considered it to belong to Richard Newman, and had delivered to him a notice of the judgment received in June 1818 from the lessor of the plaintiff.
Сторінка 26 - The rule, that where trustees ought to convey to the beneficial owner a jury may presume such a conveyance, in order to prevent a just title from being defeated by a mere matter of form, is not denied to be a wise one ; but it does not apply to the case under discussion ; for in this case the trustees ought not to surrender the term ; to do so would be to commit a breach of trust ; and the presumption, if it is made, has not the merit of preventing a just title from being defeated by a mere matter...
Сторінка 24 - Holford, that he would not suffer a plaintiff in ejectment to be nonsuited by a term standing out in his own trustee, or a satisfied term set up by a mortgagor against a mortgagee, but would direct a jury to presume a surrender. He added, " I much approve of that ; and where a surrender is presumed, there is an end of the legal title created by the term.
Сторінка 24 - In Doe v. Sybourn, 7 Term Rep. 2, the same learned Judge said, that in all cases where trustees ought to convey to the beneficial owner, he would leave it to the jury to presume where such a presumption might reasonably be made, that they had conveyed accordingly, in order to prevent a just title from being defeated by a mere matter of form...
Сторінка 6 - Upon principle, therefore, a term of years assigned to attend tbe inheritance ought not to be presumed to be surrendered, unless there has been an enjoyment inconsistent with the existence of the term, or some act done in order to disavow the tenure -under the termor, and to bar it as a continuing interest.
Сторінка 41 - ... right appear to have existed in ancient times, a long forbearance to exercise it, which must be inconvenient and prejudicial to the owner of the house or close, may most reasonably be accounted for by supposing a release of the right. In the first class of cases, therefore, a grant of the right, and in the latter, a release of it, is presumed.

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