This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(k) R. v. United Kingdom El. Tel. Co., (1862) 31 L. J. M. C. 166; Locke King v. Woking U. D. C, (1897) 77 L. T. 790; 62 J. P. 167.
(l) Neeld v. Hendon Urb. Dist. Council, (1899) 81 L. T. 405; 63 J. P. 724; Belmore (Countess of) v. Kent Coal Co., 1901, 1 Ch. 873; 70 L. J. Ch. 50; Harvey v. Truro Rur. Co., 1903, 2 Ch. 638; 72 L. J. Ch. 705; and see Copestake x. W. Sussex C. C, 1911, 2 Ch. 331; East v. Berkshire C. C, (1911) 106 L. T. 65.
(m) Ford v. Harrow Urb. Co., (1903) 88 L. T. 394; 67 J. P. 248.
(n) A.-g. v. Lindsay-hogg, 1912, W. N. 176.
(o) Callis on Sewers, 51; and Rex v. Tarborough, (1824) 3 B. & C. 91; affd. by H. L. 5 Bing. 163; Withers v. Purchase, (1889) 60 L. T. 819; Hindson v. Ashby, 1896, 2 Ch. 1; 65 L. J. Ch. 515; Brighton and. Hove General Gas Co. v. Hove Bungalows, Ltd., 1924, 1 Ch. 372; qu. whether the doctrine of accretion applies where the original boundary, such as a 6-ft. bank, remains, and the owner is not entitled to the soil to the middle of the river.
(p) Re Hull & Selby R. Co., (1839) 5 31. & W. 327. An exclusive right of fishery in a stream is not affected by its gradual deviation, nor does the owner of the land encroached upon acquire any right of fishery by such encroachment; Foster v. Wright, (1878) 4 C. P. D. 438; 49 L. J. C. P. 97. But such a right of fishery will not follow the waters of a river which has not deviated merely, but has permanently altered its channel; Mayor of Carlisle v. Graham, (1869) L. R. 4 Ex. 361; 38 L. J. Ex. 226; and see Miller v. Little, (1878) 4 L. R. Ir. 302; Hindson v. Ashby, sup. As to presumption of right to use an artificial watercourse, see Baily v. Clark, 1902, 1 Ch. 649; 71 L. J. Ch. 396.
(q) Hindson v. Ashby, 1896, 2 Ch. 1; 65 L. J. Ch. 515.
Seisin being once proved, or presumed, will be presumed to have continued until the contrary is shown (x).
Of continuance of seisin.
In the case of the intestacy of a person dying between 1897 and 1926 entitled to real property, s. 2 of the L. T. Act, 1897, and in the case of a death after 1925, Part I. of the A. E. Act, 1925, make it necessary to take out letters of administration before a sale of the property.
It will be presumed that persons who have acted in official capacities were duly appointed thereto (y), though the statements of such persons to that effect are not of themselves evidence of the fact.
Of official appointments.
(r) Vowles v. Miller, (1810) 3 Taun. 137; Doe v. Pearsey, (1827) 7 B. & C. 304; 5 L. J. O. S. Q. B. 310; Guy v. West, (1808) 2 Sel. N. P. 1244; Marshall v. Taylor, 1895, 1 Ch. 641; 64 L. J. Ch. 416; Henniker v. Howard, (1904) 90 L. T. 157; Taylor, 11th ed. p. 126.
(s) Guy v. West, sup.
(t) Cubitt v. Porter, (1828) 8 B. & C. 257; 6 L. J. O. S. K. B. 306; Watson v. Gray, (1880) 14 Ch. D. 192; 49 L. J. Ch. 243; Holland v. Wallen, (1894) 70 L. T. 376; Taylor, 9th ed. 113; Irving .v. Turnbull, 1900, 2 Q. B. 129; 69 L. J. Q. B. 593. As to party walls in the metropolis, see London Building Act, 1894; Drury v. Army & Navy Stores, 1896, 2 Q. B. 271; 65 L. J. M. C. 169; Re Stone and Hastie, 1903, 2 K. B. 463; 72 L. J. K. B. 846. As to notices under s. 90, see List v. Tharp, 1897, 1 Ch. 260; 66 L. J. Ch. 175; Hobbs v. Graver, 1899, 1 Ch. 11; 68 L. J. Ch. 84.
(u) Mellor v. Walmesley, 1905, 2 Ch. 164.
(x) Cockman v. Farrer, (1681) T. Jones, 182.
(y) See, as to Inclosure Commissioners, Casamajor v. Strode, (1832) 5 Si. 87, 98; (1833) 2 M. & K. 708; as to Churchwardens, Ganvill v. Utting, (1845) 9 Jur. 1081; as to Charity Trustees, A.-g. v. Bolton, (1851) 13 Beav. 141; 20 L. J. Ch. 569; Taylor, 11th ed. p. 165.
The statutory presumption that the person last entitled to land was the purchaser, and the stock of descent under the Inheritance Act, 1833, may be relied on by a vendor; though he is bound to disclose matters within his own knowledge which tend to rebut the presumption (z). But this is a matter of rapidly diminishing importance; since (except in the special cases mentioned in s. 51), in the case of any death on or after the 1st January, 1926, the rules of descent existing prior to that time are abolished by s. 45 of the Administration of Estates Act, 1925.
Of person last entitled having been the purchaser and stock of descent.
It is a general presumption of Law, that a child born in wedlock, even a day after the marriage (a), is the child of the husband: and this, though the parties have separated by voluntary agreement (b), and the wife is living in adultery (c). But the presumption does not arise in the case of a child born after an interval, exceeding the usual period of gestation, since the date of a divorce a meyisa et thoro (d). The old rule of the Ecclesiastical Courts, by which it was assumed that there is no access between husband and wife during the existence of a divorce a mensd et thoro applies to a modern separation order, including an order for separation made by a magistrate under the Summary Jurisdiction (Married Women) Act, 1895 (e). The ordinary presumption in favour of legitimacy (where the parents are not judicially separated), is not to be rebutted by circumstances which create only doubt and suspicion; but it may be removed by proper and sufficient evidence, showing that the husband was, 1st, incompetent; 2ndly, entirely absent at the period during which the child must in the course of nature have been begotten; or 3rdly, only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse (f); the evidence in the last two cases being given by persons other than the husband and wife (g). It seems that where the interview between the husband and wife has not been such as to raise an irresistible presumption of the fact of sexual intercourse, the subsequent conduct of the parties may be referred to for the purpose of establishing the fact of non-intercourse; e.g., the circumstance that the wife who was living in adultery concealed the birth of the child, that the husband acted up to his death as if no such child were in existence, and that the adulterer aided in concealing the birth and subsequently reared and educated the child and left it all his property by his will (h).