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.
Under Land Registration Act, 1925.
By the Public Record Office Act, 1838 (y), the records of the Courts of Chancery, Exchequer, Queen's Bench, and Common Pleas, are committed to the custody of the Master of the Rolls; and by ss. 12 and 13, certified copies of such records under the seal of the Record Office are made evidence in all Courts of justice and before either House of Parliament, without further proof, in every case in which the original record would have been receivable as evidence.
Certified copies of public records.
(t) Copyhold Act, 1894, s. 71. which replaces ss. 47, 49 of the Copyhold Act, 1858. See 9 & 10 Geo. 5, c. 91, s. 1 (1). (u) Lunacy Act, 1890, s. 144.
(x) Taking the place of ss. 16 and 17 of L. T. Act, 1897. (y) 1 & 2 Vict. c. 94.
British Diplomatic and Consular Agents abroad are, by the Commissioners for Oaths Acts, 1889 to 1891, empowered to do notarial acts; and any document, impressed or subscribed [with the seal or signature of any such agent, in testimony of 6uch notarial act having been done by or before him, is sufficient evidence without proof of the seal or signature (z).
Notarial acts by Consular
By the Evidence Act, 1851 (a), it is enacted that "whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence in any Court of justice, or before any person now or hereafter having by Law or by consent of parties, authority to hear, receive and examine evidence, provided it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted; ' and such copies or extracts are to be furnished on request at a charge not exceeding fourpence per folio of ninety words.
Examined or certified copies under the Evidence Act, 1851, a. 14.
Extracts from parochial registers, purporting to be signed and certified by the rector, incumbent or even curate. have been admitted in evidence without verification of his signature or proof of his being the proper custodian of the registers (b); and an extract from a register of births, purporting to be signed by a Deputy Superintendent Registrar, as the person having custody of the register, is admissible in evidence on mere production (c).
(z) R. S. C. 1883, Ord. XXXVIII. r. 6, and notes thereto in Ann. Pr.; and see Cooper v. Moon, (1884) W. N. p. 78; Brettlebank v. Smith, (1884) 32 W. R. 675; 50 L. T. 491.
(a) S. 14. This rule does not apply to the Bank of England, so as to compel it to depart from its practice in reference to proof of death; see Prosser v. Bank of England, (1872) 13 Eq. 611; 41 L. J. Ch. 327; and for a similar reason does not, strictly speaking, bind a purchaser.
(b) Re Neddy Hall's Estate, (1853) 17 Jur. 29; 22 L. J. Ch. 177; incorrectly reported in (1852) 2 D. M. & G. 748; see Re Porter's Trust, (1856) 2 Jur. N. S. 349; 25 L. J. Ch. 482, 688; Miller v. Wheatley, (1890) 25 L. R. Ir. 144.
(c) Reg. v. Weaver, (1874) L. R. 2 C. C. 85; 43 L. J. M. C. 13.
Sect. 174 of the Supreme Court of Judicature (Consolidation) Act, 1925, provides that in the principal probate register and in every district probate register, there shall be used such seal as the president of the Probate Division may direct, and that all probates, letters of administration, orders and other instruments and copies thereof, and all exemplifications purporting to be sealed with any such seal shall be received in evidence in all parts of the United Kingdom without further proof. By s. 155 of the same Act probate or administration in respect of the real estate of a deceased person may be granted either separately or together, with probate or administration of his personal estate, and may be granted in respect of real estate only where there is no personal estate.
Probates and letters of administration.
Part II. of the Fifth Schedule to the Act sets out provisions to have effect in relation to proceedings for proving in solemn form a will affecting real estate, or for revoking probate; such provisions are to apply in the case of persons dying before the commencement of the Act.
Whether or not probate of a will in a colony is sufficient evidence may depend on the constituted jurisdiction of the Court which granted such probate (d). But under the Colonial Probate Act, 1892, provision is made for the recognition in the United Kingdom of probates and letters of administration granted in British possessions, and by a British Court in a foreign country, and a copy of such probate or letters of administration deposited with and sealed by a Court of 'probate in the United Kingdom is to have the same force and effect as if granted by that Court (e).
(d) Re Tootal's Trusts, (1883) 23 Ch. D. 532; 52 L. J. Ch. 664; Re Vallance, (1883) 24 Ch. D. 177; 52 L. J. Ch. 791. For the purposes of the usual preliminary judgment in a partition action, letters testimonial of the Superior Court of Victoria have been held sufficient; Waite v. Bingley, (1882) 21 Ch. D. 674; 51 L. J. Ch. 651.
(e) S. 2. For a list of Orders in Council applying the provisions of this Act to various British possessions, see L. R. Digest of Cases, under heading "Probate." And see In the goods of Smith, 1904, P. 114; 73 L. J. P. 28.
Where the possession has been consistent with the prima facie title, presumption may supply deficiencies in proof of the existence or due execution of material instruments (f): the principle in the case of deeds (which, in general, seems equally applicable to other instruments operating inter vivos) being, that where there has been long enjoyment of any right which could have had no lawful origin except by deed, there in favour of such enjoyment all necessary deeds may be presumed, if there be nothing to negative such; presumption (g:). For instance, a grant from the Crown of an advowson (excepted in a former grant under general words) has been presumed as against a purchaser, after an uninterrupted possession evidenced by title deeds for 133 years and three presentations (h); and (it seems) a grant of the manor by the Crown from the fact of the grantee of land therein having for a long period held Courts and kept the manor rolls (i); a grant of foreshore has been presumed from a series of acts of ownership over it by an adjoining proprietor (k); a right of support has been presumed to have been properly acquired after nearly eighty years uninterrupted enjoyment (l); a confirmatory or supplementary-grant has been presumed, where the original grant would have been void for uncertainty (m); a reconveyance of the legal estate from trustees has been presumed, the property having for 110 years been dealt with without reference to its remaining outstanding, though the enjoyment was consistent with the supposition of such being the case (n); the fact of a lease having been duly executed has been held sufficiently proved by the production of the counterpart (o); so a surrender of copyholds will generally, after long uninterrupted possession consistent therewith, be presumed as between vendor and purchaser (p).