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.
Deficiencies in proof of documents.
Presumption of lost grant.
Presumption of grant from Crown.
(f) See Chalmer v. Bradley, (1819) 1 J. & W. at p. 63.
(g) Lyon v. Heed, (1844) 13 M. & W. 285, 303; 13 L. J. Ex. 377; approved in Creagh v. Blood, (1845) 3 J. & L. 133; and see Monck v. Huskisson, (1827) 1 Si. at p. 285; 4 Russ. 121, n.; A.-g. v. Fishmongers' Co., (1841) 5 M. & C. at p. 25; 5 Jur. 285; and early cases collected in Read v. Brookman, (1789) 3 T. R. 151; and see Delarue v. Church, (1851) 20 L. J. Ch. 183; 15 Jur. 455; and A.-g. v. Ewelme Hospital, (1853) 17 Beav. at p. 390; 22 L. J. Ch. 846.
(h) Gibson v. Clark, (1819) 1 J. & W. 159; A.-g. v. Ewelme Hospital, (1853) 17 Beav. at p. 390; 22 L. J. Ch. 846; and see Re Alston's Est., (1856) 5 W. R. 189; 28 L. T. (O. S.) 337.
(i) Merttens v. Hill, 1901, 1 Ch. 842; 70 L. J. Ch. 489; and see A.-g. v. Horner, 1913, 2 Ch. 140.
(k) Calmady v. Rowe, (1848) 6 C. B. 861; Mulholland v. Kitten. (1875) 9 Ir. R. Eq. 471; A.-g. v. Vandeleur, 1907, A. C. 369. As to what sort of ownership must be established in order to admit of this presumption being drawn, see Benest v. Pipon, (1836) 1 Kn. 60. It is not necessary to prove acts of ownership on every part of the foreshore claimed, the right to the whole may be presumed from acts of ownership in various parts of it; A.-g. v. Mayor of Portsmouth, (1876) 25 W. R. 559. Proof of ownership of a several fishery over the foreshore raises the presumption, against the Crown, that the owner of the fishery is the owner of the freehold; A.-g. v. Emmerson, 1891, A. C. 649; 61 L. J. Q. B. 79; and see Lord Fitzhardinge v. Puroell, 1908, 2 Ch. 139. The presumption does not so readily arise in the case of a Crown or public grant, as in the case of a grant from a private person. But as against a third party it is sufficient to show a possessory title without giving evidence sufficient to displace the title of the Crown; nor is it open to the defendant in trespass, at the suit of persons claiming under such a title, to prove any acts of ownership by the Crown, except such as are proved to have been done with the knowledge of the plaintiffs; Corp. of Eastings v. Ivall, (1874) 19 Eq. 558; 22 W. R. 724. As to immemorial user by fixing moorings in foreshore, see A.-g. v. Wright, 1897, 2 Q. B. 318. Cf. Brighton Corp. v. Packham, 72 J. P. 318.
Of reconveyance of legal estate.
Of lease by production of counterpart.
Of copyhold surrender.
Where property was demised in 1586 for 2,000 years, with a covenant to convey the fee, if required by the lessees within seven years, it was presumed, from the dealings with it, that the property was freehold in 1715; and the presumption was not rebutted by its having been treated as leasehold in documents subsequent to that date (q); and the validity of an award will not be questioned after the lapse of a long period (r); where a memorandum of deposit by way of equitable mortgage by a former owner is found with the title deeds, it will be presumed that the charge has been satisfied (s); after forty years' possession of copyholds under a will, a surrender to the use of the will was presumed in an early case (t); the enfranchisement of copyholds (before 1926) was presumed after an enjoyment of 160 years, even against the Crown (u): but the Court would not readily presume an enfranchisement (a?). In general, it was presumed that mesne assignments of attendant terms had been regularly made (y).
Presumption that property is freehold.
(l) Clippens Oil Co. v. Edinburgh and Dist. Water Trustees, 1904, A. C. 64; 73 L. J. P. C. 32.
(m) Des Barres v. Skey, (1874) 22 W. R. 273; 29 L. T. 592.
(n) Biliary v. Waller, (1806) 12 Ves. 239; and see Emery v. Grocock, (1821) 6 Mad. 54; Noel v. Bewley, (1829) 3 Si. 103; England v. Slade, (1792) 4 T. R. 682. See now, as to outstanding legal estates, Pt. II. of the 1st Sched. to L. P. Act, 1925.
(o) Houghton v. Kcenig, (1856) 18 C. B. 235; 25 L. J. C. P. 218. The counterpart has been allowed to be used for the purpose of correcting the lease, where there was clearly a clerical error in the latter; Burchell v. Clark, (1876) 2 C. P. D. 88; 46 L. J. C. P. 115; Matthews v. Smallwood, 1910, 1 Ch. 777, 784. The signed draft agreement has been referred to where the landlord's and tenant's copies differed. Ingleby v. Slack, (1890) 6 T. L. R. 284.
(p) Wilson v. Allen, (1820) 1 J. & W. at p. 614; and see Scriven, 7th ed. 115; and as to when an admittance will be implied, ib. pp. 138 - 140.
Of validity of award.
Of satisfaction of charge.
Of surrender to the use of will.
Of mesne assignment of terms.
Where rent has been paid to the lord of the manor in respect of a parcel thereof without variation time out of mind, a grant of the freehold at a quit rent ought to be presumed (z); the variation of the rent is, however, sufficient to rebut the presumption (a).
Presumption of grant of freehold from long unvaried payment of rent to lord of manor.
Land in Kent was presumed to be of gavelkind tenure; but by the A. E. Act, 1925, s. 45, all special rules of descent by gavelkind or Borough English, as well as dower, curtesy and freebench, are abolished.
Of land held in gavelkind.
The formalities of a deed are readily presumed. A deed thirty years old and coming from the proper custody proves itself (b); and where the deed is less than thirty years old, if the attestation is in the U6ual form and the signature of the party is proved, due sealing and delivery will be presumed (c). And as regards date, there is a general presumption that all documents (even including a letter) were executed on the day they bear date (d). Alterations in deeds (differing from alterations in wills) are presumed to have been made before execution (e).
Of the formalities of deeds.
(q) Jeffreys v. Machu, (1860) 29 Beav. 344; but see Pickett v. Packham, (1868) 4 Ch. 190; 16 W. R. 1177.