Bierce and others v. Pierce and others.

T. W. Powell, for Complainants.

It is claimed by the complainants, that after such a lapse of time, during all which they have been in possession of the premises, the law will presume they hold by legal conveyances. In relation to presumption, the following maxims have been established:

First

Presumption is only made in favor of him who is in

possession. 11 Ohio Rep. 477,

Second: That whatever was done, was right.

Third That what should be done, was done.

Fourth: That, after a lapse of time, courts will not permit the manner in which a thing was done to be called in question. Fifth That it applies to intermediate parties, whether privies or not. See 1 Fonb. Eq. 258; 1 Phil. Ev. 124, note a, old edition; Caine's Rep. 89, note a; 3 Stark. Ev. 1220, 1227; Matthews' Pres. Ev. 5, 6 and 221. In 1 Pow. Mort. 398; (Hillary v. Waller, 12 Ves. Rep. 239,) Sir W. Grant says: "There was much occasion for presuming conveyances of legal 'estates when, from the length of time, it had become impossible to discern in whom the legal title was invested;" Ibid. 401, note 2; Matthews' Presumptive Evidence, 221. "But, 'although time alone be not sufficient, in cases of this descrip'tion to afford an inference that the legal estate has been conveyed, yet it does not seem necessary, in order to establish ' such supposition, that direct testimony of the fact should be 'adduced. The courts are satisfied with reasonable probability, and will receive circumstantial evidence as equally conclusive in this respect with positive. Thus, the long and frequent ex'ercise of such acts of ownership, by the party beneficially entitled, as make it probable that the legal interest was vested in him, will enable the Court to entertain the presumption." See, also, 3 Stark. Ev. 1227; see an instructive note, 1 Phil. Ev. 124, note a; also, in 1 Caines' Rep. 89, 2d ed.

Another principle which comes in aid of raising a presumption is, the rule of law by which all things done are presumed

IN BANK.

Dec. Term,

1846.

Bierce and others v Pierce and others.

IN BANK. to be legally done, unless the contrary appears, (see note to 1 Dec. 'Term, Caines' Rep. 89,) omnia rite esse acta, (3 Stark. Ev. 1249);

1846.

and, also, that, after a lapse of time, courts will not inquire very strictly for the evidence of the means by which a right was acquired, but will presume those acts to have been done which are consistent with the possession or claim all along set up, the length of time depending upon the character of the acts to be presumed, and the situation of the parties. If it is a deed or legal conveyance, a longer period; if an assignment of an equity, or a chose in action, or payment of money, a shorter period will suffice, and the period is shorter in proportion to the liability of losing the evidence or the solemnity upon which the act depends. Presumption thus raised will require a shorter period, in cases where the evidence of the existence of the fact to be presumed is more liable to be lost or destroyed. This presumption, thus based upon circumstances and lapse of time, is applicable to all human affairs, and all claims to property, whether real or personal, corporeal or incorporeal.

The following authorities conclusively establish the position, that this presumption may be raised without regard to the statute of limitations, and in cases of corporeal property: Clark v. Furnace, 4 Pick. Rep. 245; Jackson v. McCall, 10 Johns. Rep. 380; Moore v. Jackson, 4 Wend. Rep. 63, reversing the case 6 Cow. Rep. 706: in which the Court says "A re'lease to the cestui que trust would be presumed after such a lapse of time," 32 years; Jackson v. Murray, 7 Johns. Rep. 5; Vandyck v. Van Buren, 1 Caines' Rep. 84; England v. Slade, 4 Term Rep. 683; Jackson v. Wolsey, 11 Johns. Rep. 450; Jackson v. Hudson, 3 Johns. Rep. 386; Corwin v. Graham, 1. Ohio Rep. 330.

These are all cases at law where a title was raised by presumption in relation to land, and no incorporeal right in question. And it will be raised at a longer or shorter period, depending upon circumstances; Phil. Ev.; 1 Caines' Rep. supra. "As to time, the jury may be directed to presume a surrender or conveyance in much less time than twenty years;" Per Ken

Bierce and others v. Pierce and others.

Dec. Term,

1846.

yon, Ch. J., England v. Slade, 4 Term Rep. 683, (18 years;) IN BANK. Jackson v. Mc Cull, 10 Johns. 377-a reëntry presumed in 14 years; J. v. Demarest, 2 Caines' Rep. 382; J. v. Stewart, 6 Johns. Rep. 34. Where the heirs had been in the possession of the purchase under a sale by administrator for twenty years, it was presumed the administrator had taken the necessary steps previous to the sale; Gray v. Gardner, 3 Mass. Rep. 399; see, also, Coleman v. Anderson, 10 Mass. Rep. 105. Presumption of an exception made in the previous deed, as to a drain after 16 years, (Bergen v. Bennett, 1 Caines' C. in Error, 1); so possession of Crown land commenced by encroachment 55 years ago, if continued down within 7 years, a grant will be presumed, unless it appears that, by statute or otherwise, the Crown could not grant; Goodlittle v. Baldwin, 11 East Rep. 488; Clark v. Furnace, 4 Pick. Rep. 245. Twenty years' possession, connected with other circumstances, was considered sufficient to raise a presumption of a conveyance.

Where on a perpetual leasé reserving rent, none had been demanded for forty-four years, an extinguishment by some act or deed of the party was presumed; Livingstone v. Livingstone, 4 John. Ch. Rep. 294. Non-claimer of a right to cut timber for thirty years, raised a similar presumption; 1 John. Ch. Rep. 362; Cox v. Smith, Ibid, 271; Harn v. Schyler, Ibid. 7. From these cases it will appear that a presumption of the execution of a deed or the extinguishment of a claim, will be raised at all periods, depending on other facts in the case, upon which a probability may rest. In most instances twenty will do. That period will create an easement, presume the payment of a mortgage, bar a right of redemption; and short of thirty years the execution of deeds have frequently been presumed. Now, in this case, it is not at all necessary to raise the presumption of a deed; all that is necessary is to presume an assignment of the residue of the rights of the warrant-holders to Byxbe, or that at the time when he was purchasing up their claims and purchased most of them, he purchased all. For this purpose the most simple act would be sufficient. A

Bierce and others v. Pierce and others.

IN BANK. verbal contract and payment of consideration, or the most informal writing, would be sufficient as between these parties.

Dec. Term, 1846.

It is suggested by the opposite counsel, that there should be a privity between those who claim the benefit of the presumption and those from whom the title would be derived by such presumption. There is nothing in any case that would sustain this position, while there are many cases in opposition to it. Where a person had been in possession 70 years and showed an old lease from the lessor's ancestor to a third person, the Court presumed the intermediate assignment. 1 Phil. Ev. 124, (n); Earl v. Barter, 2 Wm. Black. R. 1228; 3 Stark. Ev. 1220. So in the case of Moore v. Jackson and Erwin, 4 Wend. Rep. 63. That case was this: The elder Erwin and three others purchased a large tract of land, for the benefit of twelve persons, including themselves, and took an absolute conveyance to themselves, so that they held 4-12ths in their own right and 8-12ths in trust for the others. The elder Erwin purchased 1-12th of the outstanding equities. The plaintiff in ejectment claimed under Erwin, and claimed that the original grant covered the land in possession of Moore, the defendant, who claimed the land by a title derived from an entirely different source, so that there was no more privity in that case than in this. The questions in the case are two. 1st. Did the grant to the elder Erwin cover the land in controversy; and 2d. could the plaintiffs claim, as heirs of Erwin, an interest in the 7-12ths which was held in trust, or were they confined to 1-12th which Erwin held in his own right and 1-12th the outstanding equity which he purchased; 1-121-12=2-12. Erwin purchased in 1790; Moore purchased in 1793, but when he took possession does not appear. As the case is reported in 6 Cow. Rep. 710, it is said

"No claim was ever made to any portion of the land inclu❝ded in the gores, by any person in those townships, from 1791 to the commencement of the suit in 1816," being 25 years. Upon the second point the Court say, (4 Wend. Rep. 63,) "whether any part of the legal estate in those seven-twelfths

Bierce and others v. Pierce and others.

Dec. Term, 1846.

' of the premises conveyed descended to the heirs of Erwin, it In Bank. ' is not necessary now to inquire. If it did so, a release to the cestuis que trust would probably be presumed after such a "lapse of time.”

Here this presumption was made in favor of Moore, where there was no privity between him and cestuis que trust. Such presumptions are made for the sake of quieting possessions of long standing, rights long exercised.

It is claimed that a presumption may as well be raised in favor of the defendants, that they have extinguished the outstanding claims, as in favor of the complainants. But this would be entirely contrary to the principles upon which presumptions in these cases are raised. These presumptions are only raised in favor of those in possession of the property, or who have for a long time claimed and exercised a right consistent with the presumption. They are raised for the sake of giving peace to those who have for some time exercised a right, when the evidence of such right may have been lost by time or accident, but never in favor of those who claim adversely to such right or possession: "Where the possession is old and has gone according to the right set up, a deed necessary to the title will be presumed." 1 Caines' Rep. 89, n.; anon, 1 Vent, 257; see also 1 Fonb. Eq. n. g. 330. Lord Ellenborough said "that he would presume anything capable of being presumed, in order to support a long enjoyment." 11 East, 280; Roe v. Ireland, 3 Stark Ev. 1220. No case can be found where a presumption is raised in favor of a naked title, where the claimant has not been in the enjoyment of such right. A surrender, conveyance, or any other act, may be presumed for the purpose of supporting such possession, but never against it or to destroy it, otherwise it would be more difficult to raise such presumption against third persons, than it would be against persons whom it was presumed had executed the conveyance.

Take the case of Earl v. Baxter above recited, where the intermediate assignments from the original lessee were presumed to have been made, in a case brought by the lessor against a