duals only. That a private act may be presumed has been expressly determined (a). But it is worthy of remark, that in admitting presumptions to sustain and fortify old possessions, the courts do not restrict themselves entirely to those of rightful conveyances or of rightful possession. The quieting and confirming of titles being the principal object and indeed the origin of the doctrine, such a presumption will be made (provided substantial justice be not sacrificed) as will best meet the necessity of each particular case. And for this reason, the actual ouster of one tenant in common by another will, after twenty years exclusive possession by his companion, and in order to form a ground for the operation of the statute of limitations, be as readily inferred as a rightful conveyance (b). We may add, that as at law, so also between tenants in common of an equitable estate, such transactions may take place, as will amount to a presumptive equitable ouster, and with twenty years' subsequent exclusive possession by the party evicting, will bar the neglected rights of the other (c). We now proceed to treat of the cases which are comprised in the second class, and which are distinguished (a) Farrar's case, Skinner 78, cited; 12 Vin. 58, pl. 11, S. C. (b) Doe d. Fishar v. Prosser, Cowp. 217. Fairclaim v. Shackleton, 5 Burr. 2604, seems contrary; but the point on the principle of presumption was not agitated. That enjoyment for less than twenty years, except under particular circumstances, will not induce the presumption of an eviction, see and consider Peaceable v. Read, 1 East, 568. (c) See Harmood v. Oglander, 6 Ves. 199; and Lord Eldon's observations thereon, 8 Ves. 131. from the former by the circumstance of auxiliary evidence being coupled with time. This evidence, though inconclusive of itself, is such as either specifically recites, or distinctly alludes to, instruments accounting for the present enjoyment; or raises an inference from circumstances that such instruments did once actually exist. In cases of this description, the previous possession and the extrinsic testimony mutually assist and strengthen each other. The lapse of time furnishes a ground for admitting the secondary evidence, (it being an established rule (a), that without some sufficient cause for supposing the existence of instruments alleged to be lost, collateral proof of their contents shall not be allowed), and it verifies that evidence when received; and the deed, will, or other document, being itself accredited by its correspondency with the late enjoyment, attests and confirms the right which prima facie that enjoyment implies (b). Upon these principles, an ancient copy of a deed or will (c), much more an old attested copy (d), or a copy enrolled for the purpose of safe custody (e), and à (a) See 1 Ves. 389; Skin. 673. (b) Brome v. Carr, Cro. Eliz. 863; Green v. Proude, 1 Mod. 117; Ward v. Garnons, 17 Ves. 134; Bull N. P., 254; 7 Com. Dig. 5th edit. 430, tit. Testmoigne B. 5, pl. 4. See also 2 Atk. 72. (c) Lady Griffin v. Boynton, Nels. 82; and Gorges v. Foster, there cited; Medlicot v. Joyner, 1 Mod. Rep. 4; also 2 Atk. 72. (d) Harvey v. Philips, 2 Atk. 541. In this case Lord Hardwicke compelled a purchaser to accept. a title, who objected to it because the enrolment of the original deed, from which enrolment the copy was expressed to have been taken, could not be found: and his Lordship said, that the copy was sufficient evidence, even had it not been attested. (e) H-t's case, 11 Mod. Rep. 109; Combes v. Spencer, 2 Vern. 471. fortiori a counterpart (a); an ancient copy of an admittance to a copyhold, whether or not signed by the steward (b); the rough draft of a release, especially if the original bargain and sale for a year be forthcoming (c), and in like manner the draft of a copyholder's admittance (d), or even the steward's book containing minutes of the surrender and admittance (e); an old abstract (f), particularly where such abstract appears to have been perused by professional persons, and questions or objections relating to the title to have been raised and answered (g); a recital of the supposed deed, in an old writing, as being then extant (h); or a recital or memorandum of it in the records of a court of justice in consequence of its having been produced in a former action or suit (i); will severally be admitted as satisfactory proof of the prior existence, and of the particular contents of the alleged instrument, when the subsequent enjoyment has been consistent with it. Nor will the force of such evidence be destroyed by the fact that an unexecuted engrossment of the deed in question has been discovered (j); for that engrossinent (a) Anon. 6 Modd. 225; Garrett v. Lister, 1 Lev. 25; 2 Atk. 72; Skin. 673. (b) Dean of Ely v. Stewart, 2 Atk. 44. (c) Whitfield v. Fausset, 1 Ves. 387; Ward v. Garnons, 17 Ves. 134. (d) Anon. 1 Lord Raym. 735. (e) Doe v. Hall, 16 East, 208. (ƒ) Bull N. P. 254; Style 205 is cited in support of the position. (g) Ward v. Garnons, 17 Ves. 134. (h) Anon. 12 Vin. Abr. 233, pl. 15; Comb. 340; 6 Mod. 45; 64. (j) Skipwith v. Shirley, 11 Ves. may have been lost or mislaid at the time by accident, and another prepared in its stead, or it may have been intended for a counterpart or duplicate. In default of the preceding species of proof, parol testimony, it appears, is also admissible (a); most undoubtedly so where there is evidence of a wilful destruction of the instrument by the opposite party, on the maxim omnia præsumuntur in odium spoliatoris (b). To which may be added, that in confirmation and support of the above-mentioned evidence, the bill or books of account of a deceased solicitor containing charges for preparing or attending the execution of the averred instrument, (provided a receipt or notification annexed appear, declaring the demand to have been discharged), may be successfully resorted to and relied upon (c). The fact of a robbery having been committed in the place where the original document was probably kept, or of a fire or other accident having happened which might cause its destruction or loss, will likewise conduce to the same result (d). (a) 10 Co. Rep. 92 b.; Villiers v. Villiers, 2 Atk. 71. See also Waller v. Horsface, 1 Camp. 501. (b) Gartside v. Ratcliff, 1 Cha. Ca. 292; Delany v. Tenison, 3 Bro. P. C. by Toml. 659; Dalston v. Coatsworth, 1 P. Wms. 731. It may here be remarked, that a spoliation will not be inferred from slight circumstances, or where the former existence of the deed alleged to be lost is only problematical. See Cowper v. Earl Cowper, 2 P. (c) Warren d. Webb v. Greenville, 2 Stra. 1129, and per Lord Mansfield thereon, 2 Burr. 1072; Skipwith v. Shirley, 11 Ves. 64. (d) Medlicot v. Joyner, 1 Mod. Rep. 4; Rex v. Sir T. Culpepper, Skin. 673; Anon. 12 Vin. Abr. 233, pl. 15; Cookes v. Hellier, I Ves. 234; Robinson v. Davis, 1 Stra. 526; Jenk. 19, at the end of case 35. But it must be observed, that previously to evidence of the kinds just stated being received, the courts expect satisfactory proof of the impossibility of producing the instruments asserted to be lost; and for that purpose require it to be shown, that search in the proper places, and inquiry of the proper persons, have been diligently made. The reason for this precaution is obvious: a contrary rule would lead to, and facilitate the introduction of endless forgeries (a). In like manner, it is only where a chasm occurs in a public registry or in the rolls of a court of record, or where the books of registration or the court rolls have been destroyed, that other evidence is admitted of that which the registry or rolls, had they remained entire or in existence, would themselves have shown (b).— Accordingly, in Green v. Proude (c), where an old copy of a recovery suffered in a court of ancient demesne was received as evidence of such recovery, not only had there since been a long conformable enjoyment, but the rolls, it was also proved, had been burnt. There are two cases, in which the legislature has thought fit, under certain limitations, to give to probable the effect of positive evidence. By the statute 14 Geo. 2, c. 20, s. 5, a recovery of twenty years standing, in cases where the deeds creating the tenant to the precipe are lost or do not appear, is made (a) See 2 Ves. 90. (b) Hardr. 323 ; per Holt, C. J., in Thurston v. Slatford, 1 Salk. 284-5; and per Bayley, J., 3 Barn. and Ald. 152; 1 Jac. and Walk. 620. (c) 1 Mod. Rep. 117. |
