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.
Such declarations must be made "ante litem motam " - extent of the rule.
It seems to be now settled that, to constitute a " lis mota" there must be not merely the existence of facts which may lead to an action, but an actual controversy: and also, if a controversy exist, it must be on the very point in respect of which the declarations are sought to be used (k). In Slaney v. Wade (l), a copy of an ancient mural inscription was held not to be rendered inadmissible in evidence by reason of its having been made at the time when it was known that, on the death of a tenant for life of the family estates, questions would possibly arise as to who was entitled under a limitation in a will to the testator's right heirs.
What is a lis mota?
(e) See Shields v. Boucher, (1847) 1 De G. & S. 40; Doe v. Davies, (1847) 10 Q. B. 314; Lloyd v. Wait, (1842) 1 Ph. 61; 6 Jur. 45; Betty v. Nail, (1856) 6 Ir. C. L. R. 17; and see Re Perton, (1886) 53 L. T. 707. But such evidence is admissible only in proof of genealogical facts or of pedigrees, and not of title; Shields v. Boucher, sup.; and see Smith v. S., (1876) 10 I. R. Eq. 273; 1 L. R. Ir. 206; Haines v. Guthrie, (1884) 13 Q. B. D. 818; 53 L. J. Q. B. 521.
(f) Reilly v. Fitzgerald, (1843) 6 Ir. Eq. R. at p. 348; Dru. 153; see Taylor, 11th ed. p. 432.
(g) Slane Peerage, (1835) 5 Cl. & F. 23. To be admissible the document must be a spontaneous family declaration made before any question has arisen; and therefore a deposition in the form of an affidavit, though not sworn, is ipso facto inadmissible; Hill v. Hibbit, (1871) 19 W. R. 250; 25 L. T. 183; and see Dysart Peerage, (1881) 6 A. C. 489; Taylor, p. 433.
(h) See Monkton v. A.-g., (1831) 2 R. & M. 164; Berkeley Peerage case, (1815) 4 Camp. 418; Slaney v. Wade, (1836) 1 M. & C. 338; Reilly v. Fitzgerald, (1843) Dru. 122; 6 Ir. Eq. R. at p. 348; Taylor, pp. 433, 434.
(i) Airth Earldom, cited in Hub. on Ev. 668.
(k) Shedden v. Patrick, (1861) 2 Sw. & Tr. 170, 188; 23 L. T. (O. S.) 194; following Reilly v. Fitzgerald, (1843) Dru. 122; 6 Ir. Eq. R.
A verdict or judgment upon the matter directly at issue, though the suit in which it was given was between other parties, is good evidence of an adjudication by a competent tribunal upon the state of facts and the question of usage at that time, and is admissible wherever evidence of reputation is received (m), but a verdict not followed by judgment is no evidence at all, and if a judgment is set aside the verdict falls with it (n). ,
Old judgment, verdict.
A declaration is not rendered inadmissible in evidence by reason of the declarant, and the party relying on his declaration, having been in the same situation with respect to the matter in question (o).
Declaration by party in the like interest admissible.
And, as against third parties (p), recitals in a deed are not evidence, unless the deed was executed by some disinterested member of the family (q), and even then only on the footing of declarations or admissions. In a case where a conveyance by parties claiming as heiresses of the bodies of two female joint-tenants in tail recited their pedigree, this recital of their title by the then vendors was held to be no evidence against a subsequent purchaser, although the deed was thirty years old; there being nothing to show that the previous possession had been consistent with the pedigree (r): but in an ejectment case, where a person entitled in remainder joined with the tenant for life (who was her relation) in selling the property, and the conveyance recited that she was the daughter of J. D., and the conveyance was executed by the tenant for life, the recital was held to be evidence of the fact, "no dispute having existed, and the parties having done that which they had a right to do if members of the family" (s).
Recitals, when evidence of pedigree.
At p. 348; and Davies v. Lowndes, (1843) 7 Sc. N. R. 198; (1840) 1 M. & G. 473, which together must be taken to have overruled Walker v. Countess Beauchamp, (1834) 6 C. & P. 552; and see Frederick v. A.-g., (1875) 44 L. J. P. & M. 1.
(l) (1836) 1 M. & C. 338; 7 Sim. at p. 614; Taylor, 11th ed. p. 434.
(m) Pirn v. Curell, (1840) 6 M. & W. 234; Neill v. Duke of Devonshire, (1882) 8 A. C. 135, 147; 31 W. R. 622; and see Re Manor of Walton-aum-trimley, (1873) 21 W. R. 475; 28 L. T. 12; Taylor, 11th ed. 430.
(n) Butler v. B., 1894, P. 25; 63 L. J. P. 1.
(o) Monkton v. A.-g., (1831) 2 R. & M. 157; Doe v. Tarver, (1826) Ry. & Mo. 141; Freeman v. Phillipps, (1816) 4 M. & S. 486, 491.
(p) Including persons named as parties, but who do not execute; see Tull v. Owen, (1840) 4 Y. & C. 192.
(q) Slaney v. Wade, (1836) 1 M. & C. 338 (but see the judgment of the V.-c. contra, 7 Si. 614); see Doe v. Davies, (1847) 10 Q. B. 314. 325; 16 L. J. Q. B. 218.
By the L. P. Act, 1925, s. 45 (6), re-enacting s. 2 of the V. & P. Act, 1874, recitals in (inter alia) Acts of Parliament twenty years old are, as between vendor and purchaser, made sufficient evidence of the truth of the facts and matters stated, except so far as they may be disproved. Save so far as it may have been altered by this enactment, the general rule is that recitals in recent private Acts of Parliament are not evidence of the facts stated in them, inasmuch as it is no longer the practice to submit the evidence in support of private bills to the Judges for their report (t). The Court has refused to act upon the recital of a death in a private Act on the application of a person claiming under the Act (u).
Recitals in private Acts of Parliament.
Land tax (which is capable of subsisting as a legal interest under the L. P. Act, 1925, s. 1 (2)) if not noticed in the agreement, is presumed to be a charge on the property; if stated to be redeemed its redemption should be shown by the certificate of the Commissioners, the receipt of the cashier of the Bank of England, and memorandum of registration (x): or if redeemed after the 12th August, 1889, by the certificate of the Minister of Agriculture (y), or the Commissioners of Inland Revenue (z). The loss of the receipt is not, however, of any real importance; for, as a matter of practice, the certificate is never issued before the money is paid. In one case (a), where an estate was described as land tax redeemed, a statutory declaration by a former owner that no land tax had been paid in respect of the land, "subsequently to the purchase or redemption thereof, in or about the year 1799," was held insufficient to satisfy a purchaser; for it left it doubtful whether the land tax ever was redeemed, so as to free the land from liability either to the Crown or to a purchaser under the Land Tax Redemption Act, 1802, or his representatives: and in the same case it was held, that a statement in the operative part of a conveyance that the consideration was for the absolute purchase of the land "free from land tax," did not fall within the usual condition making deeds of a specified age conclusive evidence of everything recited or stated therein. On an exchange of lands under the Inclosure Act, 1836, the liability to land tax is not transferred from the property exchanged to that taken in exchange (6), and the site of an ancient hospital, which was exempt as such, retains the exemption, though the hospital has been removed, and the land discharged from the charitable trusts (c). Where the land tax upon land adjoining a public highway has been redeemed, the presumption that the soil of the highway ad medium filum belongs to the owner of the adjoining land applies so as to extend the exoneration from tax to the middle of the highway (d).