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That where there is in the

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create infinite confusion.
same person a legal and equitable interest, the former
absorbs the latter. I admit that where he has the
same interest in both, he ceases to have the equitable
estate, and has the legal estate, upon which this court
will not act, but leaves it to the rules of law. But it
must be understood always with this restriction, that
it holds only where the legal and equitable estates are
co-extensive, and commensurate; but I do not by
any means admit, that where he has the whole legal
estate and a partial equitable estate, the latter sinks
into the former; for it would be a disadvantage to
him."

Estate is a

37. It is a rule of law, that in an ejectment, the Where a legal plaintiff must recover upon the strength of his own Bar in Ejecttitle; and cannot found his claim on the weakness of ment. that of the defendant; for possession gives the defendant a right against every man who cannot show a good title. The party who would change the possession, must first establish a legal title in himself: therefore where it can be shown by the defendant that the legal title is not in the plaintiff, he cannot recover in the action.

38. It was formerly held that an outstanding legal 3 Burr. 1901. estate should not be set up as a bar in ejectment, Cowp. 46. Doug. 721. to the cestui que trust, where he was entitled to the benefit of the whole legal estate. But Lord Mansfield has said, the rule only was, that the legal estate should not be set up, to defeat the cestui que trust, in a clear case; for where the trust was perfectly manifest, the rule stood upon strong and beneficial principles; because in ejectment the question was, who was entitled to the possession. But if a trust was doubtful, a court of law would not decide upon it in

8 Terin R. 122.

Where a Reconveyance will be presumed.

3 Burr. 1901.

an ejectment; it must be put into another way of inquiry.

39. This doctrine has been denied by Lord Kenyon, who has said, that "if it appear in a special verdict, or a special case, that the legal estate is outstanding in another person, the party not clothed with that legal estate, cannot recover in a court of law. And in this respect I cannot distinguish between the case of an ejectment brought by a trustee against the cestui que trust, and an ejectment brought by any other person.

40. In the case of Lade v. Holford it appears to have been agreed, that where the beneficial occupation of an estate, by the possessor, has given reason to Doug. 721. suppose that possibly there may have been a conveyance of the legal estate, to the person who is equitably entitled to it; a jury may be advised to presume a conveyance of the legal estate. And this doctrine is confirmed by the following case.

Hilary v.
Waller,

12 Ves. 239.

41. Upon a bill in Chancery for the specific performance of an agreement to purchase a farm, the defendant objected to the title. The estate appeared to have been conveyed in 1664 by way of indemnity: and as to one moiety of the estate, there was no provision for reconveying it; as to the other moiety there was such a provision after the death of two persons then living, and eleven years after. In a family settlement executed in 1694, the conveyance of 1664 was excepted. From that time no notice was taken of it; but the estate was conveyed by the persons in possession, as if they were seised of the legal estate. So that the owners had acted as proprietors of the fee simple for a hundred and forty years; and no claim appeared to have ever been

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made on the estate, under the deed of indemnity... The objection to the title was founded on the legal estate's being outstanding. To which it was answered, that a reconveyance of it ought to be presumed.

Sir W. Grant said, that length of time did not, of itself, furnish the same sort of presumption, in this case, that it did in a case of adverse possession. Long continued possession implied title; as, if there was, a different right, the probability was, that it would have been asserted. But undisturbed enjoyment did not show whether the title was equitable or legal. It did not follow however that a conveyance of the legal estate could not be the subject of presumption; though the presumption was made upon a different ground. Lord Kenyon, though disinclined to permit ejectments to be maintained upon equitable titles, always admitted that it might be left to the jury to presume a conveyance of the legal estate. On what ground was such presumption to be made? On this, that what ought to have been done, should be presumed to have been done: when the purpose was answered for which the legal estate was conveyed, it ought to be reconveyed. Presumptions did not always proceed on a belief that the thing presumed, had actually taken place. Grants were frequently presumed, as Lord Mansfield Cowp. 215. had said, merely for the purpose, and from a principle of quieting the possession. There was as much occasion for presuming conveyances of legal estates: as otherwise titles must for ever remain imperfect, and in many respects unavailable; when, from length of time, it became impossible to discover in whom the legal estate, if outstanding, was actually vested. If it could be ascertained at what period the VOL. I. K k

4

2 Atk. 19.

legal estate ought to have been reconveyed, he saw
no reason why the presumption of its being recon-
veyed, at that period, should not be made. The
difficulty was, that by the deed of 1664 it was only as
to a moiety of the estate, that any time was limited
for the reconveyance.
It could not however be

meant that the legal estate in any part should con-
tinue outstanding for ever. The conveyance of it
was made for a purpose that must have some limit.
It was by way of security against the eviction of
another estate. At what precise moment the danger
of eviction ceased, it was impossible to say; but if
the time that had elapsed without claim, one hundred
and forty years, did not furnish the inference that
none could be made, he did not know what period
would be sufficient for that purpose. Mere possi
bilities ought not to be regarded. The Court, as
Lord Hardwicke said in the case of Lyddall v.
Weston, "must govern itself by a moral certainty;
for it is impossible, in the nature of things, there
should be a mathematical certainty of a good title."
The evidence of actual reconveyance was slight, and
inconclusive. But on the general grounds he had
before stated, he conceived there was no court before
which a question concerning this title could come,
that would not, under all the circumstances of the
case, présume, or direct a jury to presume, that the
legal estate had been reconveyed. It was therefore
such a title as a purchaser might safely take. And
decreed accordingly.

The decree was affirmed by Lord Erskine.

TITLE XII.

TRUST.

CHAP. III.

Of the Rules by which Trust Terms are governed.

2. Terms in Gross.

7. Terms attendant on the In

heritance.

10. How Terms become attendant.
22. When a Term is in Gross.
27. A Term attendant may be-
come a Term in Gross.
29. A Term attendant is Fart of
the Inheritance.
31. Is real Assets.

32. Not forfeited for Felony.
33. Trust Terms protect Pur-
chasers from mesne Incum-
brances.

40. And also from Dower.
43. Must be assigned to a Trustee

for the Purchaser.

45. A Term will not protect the
Heir against Dower.

48. Nor the Assignees of a Bank-
rupt.

49. Neither Jointure nor Curtesy
barred by a Term:

51. Where a Term is a Bar in
Ejectment.

THE

SECTION 1.

§ 34.

HE principles upon which terms for years are Ante, c.1. held not to be affected by the statute of uses, have been already explained; it will now therefore only be necessary to state the rules by which they are governed.

Gross.

2. Terms for years are either vested in trustees for Terms in the use of particular persons, or for particular purposes; or else upon trust to attend the inheritance. In the first case they are called terms in gross; and the persons entitled to the beneficial interest, have a right in equity to call on the trustees, or persons possessed of the legal estate in the term, for the rents

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