I. S. in pursuance of the trust. In these cases, when a conveyance is presumed, there is an end of the legal estate, created by the term. But where the facts of the case preclude such presumption, or if there are not any premises, from which a surrender of the term can be presumed (4); or, if it appear in a special verdict, or special cases, that the legal estate is outstanding in another person, the party who is not clothed with the legal estate cannot prevail in a court of law (5). In 1772, a term of 1000 years was created by deed for the purpose of securing a sum of £5000; and in 1787, the principal and interest having been paid, the residue of the term was assigned in trust for the devisees of the person who created the term. In 1789, the premises were conveyed to a purchaser by deed, and the residue of the term was assigned in trust for the purchaser, her heirs, and assigns, or as she should appoint, and in the meantime to attend the inheritance. The purchaser entered into the possession of the premises, and continued so possessed till her death. In 1808, she executed a marriage settlement, reserving to herself a power of appointment by deed or will, and after the marriage, she, in 1815, devised all her real estate. Neither in the marriage settlement, nor in the will, was any mention made of the term of 1000 years. She and her husband having both died, it was holden", on ejectment brought by her heir at law, that there was no ground whatever for presuming that this term, which was assigned to attend the inheritance, was ever surrrendered (6). It will be observed e Doe d. Blacknell v. Plowman, 2 B. g Roe d. Reade v. Reade, 8 T. R. 122. and Ad. 573. h Doe d. Blacknell v. Plowman, 2 B. and Ad. 573. f Goodtitle d. Jones v. Jones, 7 T. R. 49. (4) "Upon principle, a term of years assigned to attend the inheritance, ought not to be presumed to be surrendered, unless there has been an enjoyment inconsistent with the existence of the term, or some act done in order to disavow the tenure under the term, and to bar it as a continuing interest." 1 Sugden, V. & P. 472. 9th edition. (5) "As to the doctrine, that the legal estate cannot be set up at law by a trustee against his cestui que trust, that has been long repudiated." Per Ellenborough, C. J. in Doe d. Shewen v. Wroot, E 44 G. 3. B. R. 5 East, 138. See further on this point Lessee of Massey v. Touchstone, reported in a note to Shannon v. Bradstreet, 1 Sch. &. Lefr. p. 67. (6) In this case, the Court of K. B. denied the authority of the cases of Doe d. Burdett v. Wrighte, 2 B. & A. 710, and Doe d. Putland v. Hilder, 2 B. & A. 782, which went to establish the presumption of also, that in the foregoing cases, in which a surrender was presumed, the presumption was made in favour of the party who had proved a right to the beneficial ownership; the possession was consistent with the existence of the surrender required to be presumed, and made it not unreasonable to believe that the surrender should have been made in fact. But where the court were called upon to declare that the presumption ought to have been made in favour of a person who had proved no right to the possession, no title, no conveyance, and one who stood on mere naked possession, without any evidence how or when he acquired it, and who laid before the jury only a partial statement of the ground of presumption, the court refused to make it. The plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of that of the defendantk. Possession gives the defendant a right against every person who cannot shew a good title1. But a lessee will not be permitted to defend an ejectment against his own landlord, from whom he has received possession, on a supposed defect in the title of the landlordm; nor if B. claiming under A. let lands for a year and die, and A. after the expiration of the term brings an ejectment against C., can C. dispute the i Doe d. Hammond v. Coke, 6 Bingh. 1 Per Lord Mansfield, C. J. 4 Burr. 174. k Per Lee, C. J. delivering the opinion of the court in Martin v. Strachan, 5 T. R. 110. n. 2487. m See Driver d. Oxendon v. Lawrence, 2 Bl. R. 1259. n Barwick v. Thompson, 7 T. R. 488. the surrender of a satisfied term, on the mere ground that the term had been left undisturbed for a long period. In Doe d. Putland v. Hilder, a term of years was created in 1762, and assigned over to a trustee in 1779, to attend the inheritance. In 1814, the owner of the inheritance executed a marriage settlement, and in 1816, conveyed his life interest in the estate to a purchaser, as a security for a debt; but no assignment of the term, or delivery of the deeds relating to it, took place on either occasion. In 1819, an actual assignment of the term was made by an administrator of the trustee in 1779, to a new trustee, for the purchaser in 1816. It was holden, that under these circumstances, on an ejectment brought by a prior incumbrancer against the purchaser, the jury were warranted in presuming that the term had been surrendered previously to 1819. This decision* (which was called in question by Lord Eldon, C. and by Richards, C. B. and Graham, B.) may now be considered as overruled. See Aspinall v. Kempson, 1 Sug. V. & P. 508. 9th Edit. Doe v. Putland, ib. 502.Matthews on the Doctrine of Presumption, 226. title of A.; nor where tenant in possession has paid rent to the lessor of plaintiff, can a third person come in and defend as landlord without the tenant, and dispute the lessor of plaintiff's title. "Neither the tenant, nor any one claiming by him, can controvert the landlord's title. He cannot put another person in possession, but must deliver up the premises to his own landlordP." Where possession has been fraudulently obtained, if the title is to be disputed, the lessor of the plaintiff may insist upon being first put into the situation in which was before the possession was taken. he In a Where a copyholdera has been admitted to a tenement and done fealty to the lord of a manor, he is estopped in an action by the lord for a forfeiture from shewing that the legal estate was not in the lord at the time of admittance. case, however, where the lessor of the plaintiff holding an estate under a lease for 21 years, underlet the same to the defendant for a year, and the defendant held over after the expiration of the 21 years, after which the lessor of the plaintiff gave the defendant a regular notice to quit, which not being complied with, an ejectment was brought; it was holden, that it was competent to the defendant to shew, that the lessor's title had expired, and that he had no right to turn him out of possession. So where the tenant has not received possession from a person, to whom, however, under a misrepresentation or by mistake, he has paid rent, such payment of rent will not estop the tenant from setting up the title of the real ownerc. Premises being in possession of a tenant under an indenture of lease, a party claiming them by an alleged title adverse to that of the lessor, and prior to the lease, demanded them of the lessee, and ultimately obtained possession by paying him £20. The landlord afterwards brought ejectment against the party so in possession, the term having been forfeited by nonpayment of rent, and there being no sufficient distress on the premises. It was holden, that this case fell o Doe d. Knight v. Smythe. 4 M. and a Doe on the demise of Sir E. Nepean c Fenner v. Duplock, 2 Bingh. 10. within the rule whereby the tenant is precluded from contesting his landlord's title. Doe d. Bullen v. Mills, 2 Ad. & Ell. 17. II. By whom an Ejectment may be brought. AN ejectment may be brought by the following persons: 1. Bargainee, under a commission of bankrupt, 1 Wils. 276. 2. Conusee of a statute merchant or staple. 3. Copyholders (7), Moor, 569. 1 Leon. 4 Cro. Eliz. 535. (7) If a copyholder, without license, makes a lease for one year, or, with license, makes a lease for many years, and the lessee be ejected, he shall not sue in the lord's court by plaint, but shall have an ejectio firma at the common law; because he has not a customary estate by copy, but a warrantable estate by the rules of the common law. Co. Cop. s. 51. If the copyholders of a manor belonging to a bishopric, during the vacancy of the see, commit a forfeiture by cutting timber, the succeeding bishop may bring ejectment. Read v. Allen, Oxford circuit, 1730, per Comyns, Bull. N. P. 107. The lord may seize copyhold land quousque, in virtue of a right which accrued to the preceding lord, on default of the heirs coming in to be admitted; and that, although he be the devisee, and not the heir of the preceding lord; but, to entitle the lord to make such seizure, there must be three proclamations made, at three consecutive courts. Doe d. Bover v. Trueman, 1 B. & Ad. 736. An heir to whom a copyhold descends, may surrender before admittance, because he is in by course of law, and the custom, which makes him heir to the estate, casts the possession upon him from his ancestor; consequently such heir may maintain ejectment before admittance*. So the grantee of a copyhold in reversion has a good and perfect title by the grant, without admittance, and may maintain ejectment on the death of the tenant for life. Roe v. Loveless, 2 B. and A. 453. But a stranger, to whom a copyhold is surrendered, has nothing before admittance, because he is a purchaser. Until the admittance of surrenderee the copyhold remains in the surrenderor, and if he die, his heir may bring ejectment. Wilson v. Weddell, Yelv. 144. But after admittance surrenderee may maintain ejectment against surrenderor, and lay his demise on a day between the times of surrender and admittance. Holdfust v. Clapham, 1 T. R. 600. Admit Adm. Per Cur. in Roe d. Jeffereys v. Hicks, 2 Wils. 15, and Per Kenyon C. J. in Doe v. Hellier, 3 T. R. 169. S. P. 4 Rep. 26. a. Cro. Jac. 31. Yelv. 144. 1 T. R. 600. A copyholder cannot make a lease for more than one year without a license, or by special custom, without incurring a forfeiture of his estate: but a lease for one year is good without either, and a copyholder may maintain an ejectment upon it. Frosel v. Welsh, Cro. Jac. 403. Erish v. Rives, Cro. Eliz. 717. 4. Corporation aggregate, Carth. 390. 12 Mod. 113. or sole. 5. Devisee, 1 Inst. 240. b. 6. Grantee of rent charge, with a power to retain until satisfaction, 1 Saund. 112. 7. Guardian in socage (8). tance of tenant for life is admittance of him in remainder, without any other admittance. Auncelme v. Auncelme, Cro. Jac. 31. Warsopp v. Abell, 5 Mod. 307. But if a copyhold be surrendered to one for life, remainder to another in fee, if the lord is to have a fine from the remainder-man there is occasion for a new admittance. Gippen v. Bunny, Moor, 465. And a custom that the remainderman coming into possession on the death of tenant for life, shall be admitted and pay a fine is a good custom. Doe d. Whitbread v. Jenny, 5 East, 522. An heir at law may devise his copyhold estate, without having been admitted, and without previous payment of the lord's fine. Wright v. Banks, 3 B. & Ad. 664. The devisee of a copyhold or customary estate, which had been surrendered to the use of the will, having died before admittance, it was holden, that her devisee, though afterwards admitted, could not recover in ejectment; for the admitttance of the second devisee had no relation to the last legal surrender, and the legal title remained in the heir of the surrenderor. Doe d. Vernon v. Vernon, 9 East, 8. A copyhold tenant surrendered his estate to the use of another, and afterwards committed and was convicted of felony before admittance of the surrenderee: it was holden, that the estate was by the custom forfeited to the lord. R. v. Lady St. John Mildmay, 5 B. & Ad. 254. Where a copyholder was convicted of a capital felony, but pardoned, upon condition of remaining two years in prison, and the lord did not do any act towards seizing the copyhold; it was holden, that at the expiration of the two years, the copyholder might maintain ejectment against one who had ousted him; inasmuch as the pardon, by virtue of stat. 6 Geo. 4. c. 25. s. 7. restored him to his competency, and the estate would not vest in the lord without any act done by him. Doe d. Evans v. Evans, 5 B. and C. 584. Copyholds are within the statute against fraudulent conveyances, 27 Eliz. c. 4. Doe d. Tunstall v. Bottriell, 5 B. & Ad. 131, overruling the dictum of Blencowe, J. in Bull. N. P. 108. (8) Guardian in socage may make a lease for years, and his lessee may have an ejectio firma, per three justices, Cro. Jac. 99. Adm. |