are to be adverted to, we shall find him anxiously obtaining a further assignment of the term. There is a continued enjoyment under the original trusts, which embraces all the persons who have successively enjoyed the estate. Does, then, the appearance of the adverse claimant weaken the purchaser's case? So far from it, that, in the great majority of the cases in the books, the protection was not sought for until the necessity for it appeared. These cases shew the rules of [ *156 ] equity which flow from the anxiety of the courts to strengthen the title, and protect the possession of pur-. chasers; but if at law the outstanding term is to be presumed to be surrendered, they will no longer afford any protection to purchasers. The doctrine, that the mortgagor shall not set up an attendant term against the mortgagee, does not warrant the presumption of a surrender in this case. In the former case, there are only the rights of the mortgagor and mortgagee still in question, and the presumption is made in favour of the mortgagee; the claim of a third party does not intervene. But does it follow that a surrender should be presumed, not as between mortgagor and mortgagee, but as between two innocent mortgagees, both claiming under the same mortgagor, where one, after the execution of both mortgages, has obtained an assignment of the term? The objection is, not that a surrender cannot be presumed against an owner of the inheritance, but that the presumption ought not to be made against a purchaser of the inheritance, where the contest is between him and incumbrancers claiming under the seller, but of whose claims he had no notice. The rule, that, where trustees ought to convey to the beneficial owner, a jury may presume such a conveyance, in order to prevent a just title from being defeated by mere matter of form, is not denied to be a wise one, but it does not apply to the case under discussion; for in this case the trustees ought not to surrender the term. To do so would be to commit a breach of trust; and the presumption, if it is made, has not the merit of preventing a just title from being defeated by a mere matter of form, but lets in one title to the destruction of another, where the equities are at least equal." The author then cites the following cases in confirmation of the position for which he is contending;-Willoughby v. [ *157 ] Willoughby, 1 T. R. 772; Goodtitle d. Norris v. Morgan,

1 T. R. 755; Doe d. Hodsden v. Staple, 2 T. R. 684; Keene d. Byron v. Deardon, 8 East, 248; Doe d. Graham v. Scott, 11 East, 478; Evans v. Bicknell, 6 Ves. jun. 184-5; and Maundrell v. Maundrell, 10 Ves. jun. 246.

§ 116. Under these circumstances arose the cases of Doe d. Burdett v. Wrighte,(e) and Doe d. Pultand v. Hilder.(f) The first of these was an action of ejectment on the determination of a life estate created by devise, brought by the plaintiff, as heir at law to the testator, against the defendant, who also claimed to be heir-at-law. At the trial before Park, J., in the year 1819, it appeared that a term of 1000 years, created in 1717, was, in 1735, assigned for the purpose of securing an annuity, and after that to attend the inheritance. The annuitants died about 1741, and the estate, with the title-deeds creating and assigning the term, remained undisturbed in the hands of the

(e) 2 B. & A. 710.

(f) Id. 782.

owners of the inheritance and of a devisee for life, who came into possession in 1787; and no notice was ever taken of the term, except that, in 1801, the devisee, on a sale by him of a part of the estate, had entered into a covenant to produce them when called for. The plaintiff having clearly proved his title as heir-at-law to the devisor, one defence set up against his right to recover was the existence of the outstanding term. But the judge told the jury, first, that the great object of the assignment of these terms was to secure an annuity to parties who were long ago dead, and that that part of the trust was therefore satisfied; *and secondly, that, as to attending the inheritance, the other object for which the term was cre[ *158 ] ated, the circumstance that the deeds were not found in the hands of the trustee, but in those of the devisee of the party who had been seised in fee of the estate, and had died upwards of thirty years preceding, and from whom the devisee must have derived possession of them, together with the fact that the beneficial occupation of the estate had continued during all that period unfettered by any such clog, were sufficient to warrant them in presuming that those terms had been surrendered, and a re-conveyance of the legal estate made to the person beneficially interested." The jury having accordingly found for the plaintiff, the direction was recognised and upheld by the court in banc. Bayley, J., there says, "The principle on which the courts proceed in these cases is, that they will presume a surrender, where it is for the interest of the owner of the inheritance that the terms should be considered as surrendered; and where an estate has remained so long in the same hands, there seems no beneficial purpose which can be answered by the continuance of the terms. If, for instance, these terms had been considered as subsisting, it would have been necessary for the devisor, in 1786, to have made inquiry, and found out the personal representative of the trustee, after a lapse of fifty-one years, and perhaps at the expense of a limited administration. I, therefore, can see no benefit, but, on the contrary, a great inconvenience, to the owner of the inheritance, from keeping the term alive. It is true, that, in 1801, the devisee covenants for the production of the deeds; he does not, however, assign the term, but only says, 'I find this deed in my possession, *and I covenant to produce it.' He treats the terms, therefore, as subsisting in parch[ *159 ] ment, but says nothing as to whether they are then subsisting in interest or not."

§ 117. It will be observed, that, in Doe v. Wrighte, the question arose between parties who each claimed the inheritance as heir-atlaw; but the other case, of Doe d. Putland v. Hilder, differs in this respect. It was an action of ejectment, also tried by Park, J. It appeared by the evidence, that the premises in question had been sold in 1779 to one John Newman in fee, and a previously existing term, created in 1762, was assigned to a trustee to attend the inheritance. The estate descended from John Newman to his nephew, Richard Newman, who, on his marriage in October, 1814, settled the estate to the use of himself for life, with remainders over, in strict settlement; and in 1816 conveyed his life interest and reversion to his mother, Mrs. Sarah Newman, as security for a debt; but on neither of these occasions was the term either assigned or noticed. It appeared, also,

that in 1808 the same Richard Newman, under whom the lessor of the plaintiff claimed, had executed a warrant of attorney to the lessor of the plaintiff, on which judgment was entered up. It was revived by sci. fa. in 1818, a writ of elegit issued, and, by an inquisition taken in March, 1818, the premises were extended in the possession of the defendant, who, in 1816, had got into possession under Mrs. Sarah Newman. After the present action had been commenced, the next of kin of the trustee, who had died intestate in 1810, took out letters of administration, and by deed, dated 19th March, 1819, assigned the [ *160 ] term to a trustee for the devisees *of Mrs. Newman, and to attend the inheritance. The deed creating the term in 1762 was produced by a purchaser of the larger part in value of the estate comprised in it, while the deeds of 1779 and 1819 were produced by the defendant. It being objected, on the part of the defendant, that the plaintiff could not recover on account of the term being outstanding in another person, Park, J., directed the jury to presume a surrender of the term; who found a verdict for the plaintiff. A rule having been obtained to set aside this verdict, the case was fully argued, and most of the previous authorities, including Doe v. Wrighte, were cited; and after the court had taken time to consider, the judgment of the court was delivered by Lord Tenterden in favour of the plaintiff. "We are of opinion," says his lordship, "that, in this case, a surrender of the term might lawfully and reasonably be presumed. It is obvious, that, if such a surrender had been made, it would probably not be in the power of the plaintiff to produce it, he being a stranger to the particulars of the title which his debtor had in the land. The principal ground of objection to the presumption was, that such a presumption had in no instance hitherto been made against the owner of the inheritance; the former instances being, as it was said, all cases of presumption in favour of such owner. But this proposition appears to be too extensively laid down. One of the instances in which it has been said that a surrender shall be presumed is the case of a mortgagor setting up a term against his own mortgagee; and this is said generally, and without distinction between a mortgagee in fee and for years. But if such a term be set up against a mortgagee for years, and a surrender presumed, the presumption is [ *161 ] made against and not in favour of the owner of the inheritance. It is made against his interest at the time of the trial, but in favour of his honesty at the time of the mortgage; for if the term existed at the time of the mortgage, he ought in honesty to have secured the benefit of it to the mortgagee at that time, and not to have reserved it in his own power, as an instrument to defeat his mortgage. And upon the same principle on which a surrender is presumed in the case of mortgagor and mortgagee, we think it may reasonably be presumed in the present case; though the principle is applicable, not to the judgment creditor, but to other persons. One of the general grounds of a presumption is the existence of a state of things, which may most reasonably be accounted for by supposing the matter presumed. Thus, the long enjoyment of a right of way by A. to his house or close over the land of B., which is a prejudice to the land, may most reasonably be accounted for, by supposing a grant of such right by the owner of the land; and if such a right appear to

have existed in ancient times, a long forbearance to exercise it, which must be inconvenient and prejudicial to the owner of the house or close, may most reasonably be accounted for, by supposing a release of the right. In the first class of cases, therefore, a grant of the right, and in the latter a release of it, is presumed. Where a term of years. becomes attendant upon the reversion and inheritance, either by operation of law or by special declaration upon the extinction of the objects for which it was created, the enjoyment of the land by the owner of the reversion, thus become the cestui que trust of the term, may be accounted for by the union of the two characters of cestui que *trust and inheritor, and without supposing any surrender [ *162 ] of the term; and therefore, in general, such enjoyment, though it may be of very long continuance, may possibly furnish no ground to presume a surrender of the term. But where acts are done or omitted by the owner of the inheritance, and persons dealing with him as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made, in such cases the things done or omitted may most reasonably be accounted for, by supposing a surrender of the term; and, therefore, a surrender may be presumed. We think there are such things in the present case. In the year 1814, Richard Newman, the debtor, and then owner of the inheritance, made a settlement upon his intended marriage, which took place immediately. Upon such an occasion the title and title-deeds of the husband would probably be looked into by professional men, on the part of the husband at least, if not on the part of the wife also; and, notwithstanding the assertion of the learned gentleman who argued the case on the part of the defendant, and by whom we were informed that it is not usual on such occasions to take any notice of an outstanding satisfied term, we cannot forbear thinking that such a term always ought to be, and frequently is, in some way noticed, either by the deed of settlement, or by some separate instrument; because, if it be not noticed, and the termor be not called upon to assign the term to the uses of the settlement, nor any declaration of trust made of it to those uses, it may afterwards be made an instrument of defeating the settlement. The title-deeds usually remain with the husband; and if he be driven *by [ *163 ] necessity to borrow money, he may meet with a lender who has no notice of the settlement, and may, by handing over his deeds, and obtaining an assignment of the term to him, and other conveyances, give to him a title that must prevail both at law and in courts of equity against the settlement. **** If, in the present case, it had appeared that the deeds relating to the term were delivered to the trustees of the marriage settlement, as one of the securities for the settlement, the case would have stood on a very different ground. The marriage settlement, however, is not the only occasion on which, we think, it may most reasonably be supposed that this term, if existing, would have been brought forward. It appears, that, in 1816, the same Richard Newman, being then indebted to his mother, and desirous of giving her security for the debt, prevailed upon his wife to join with him in conveying to her the interests they derived under the settlement. Upon this occasion an assignment of

the term, or a delivery of the deeds relating to it, would undoubtedly have been most important acts in favour of the mortgagee, because they would have protected the mortgagee against any subsequent use of the term to defeat her mortgage. On both these occasions, therefore, the term, if existing, could not have been wholly disregarded, without either want of integrity on the part of Richard Newman, or want of care and caution on the part of the professional men engaged in those transactions. We think it more reasonable to presume a prior surrender of the term, than to presume such deficiencies. It certainly might not unreasonably be left to the jury to consider to what cause they would attribute these omissions; and this was done at the trial. It is true that an assignment of the term

[ *164 ] *was taken a few days before the trial, for the alleged benefit of the legatees of the mortgagee, Mrs. Newman, on whose behalf we were informed the present cause was defended. But this tardy act cannot be of any avail, and leads not to any presumption. The assignment was made by the administrator of the person in whom the term had been vested; and the administrator would probably be ignorant of any previous surrender made by the intestate. The time for dealing with the term, on behalf the mortgagee, was the date of the mortgage. An actual assignment of the term is more regarded than its mere quiescent existence. * * * * These observations respecting the settlement and the mortgage receive additional force from the consideration of their dates. They were both long subsequent to the judgment, and they are the acts of a person materially interested in protecting the land from the judgment, and excluding all questions on the subject of priority or otherwise, in the case of the settlement, for the sake of his intended wife, and the issue that he might expect by her, and in the case of the mortgage, for the sake of the mortgagee, to whom he was so nearly related, and who was evidently a favoured creditor. And it cannot be denied that an actual assignment of the term would have been in many respects more operative against the judgment, than its mere existence. For these reasons we thing the verdict ought not to be disturbed."

§ 118. Whether the cases of Doe d. Burdett v. Wrighte, and Doe d. Putland v. Hilder were rightly decided, may admit of different opinions. It will be observed, that, in the former case, the presumption was not made against a purchaser, but between parties claiming as heir-at-law; and the decision in the latter is defended [ *165 ] by *Mr. Starkie, on the ground, that, taking the whole case together, there was evidence from which a jury might, in their discretion, have presumed a surrender, and having so presumed, the court would not disturb the verdict.(g) But the principle contained in those cases, namely, that the surrender of a term assigned to attend the inheritance may be presumed from the fact of its not being noticed in family settlements, or other similar conveyances, soon attracted the attention of the profession.(h) The reason given by the judges in support of this position are principally two: first, the incorrect

(g) 3 Stark. Ev. 926, 3rd ed. See, also, the judgment of Tindal, C. J., in Doe d. Hammond v. Cooke, 6 Bing. 180, (19 Eng. Com. Law Reps.), and the case of Townsend v. Champernown, 1 Y. & J. 544. (h) 3 Sugd. V. & P. 59, 10th ed.