That is foreign to the object of the parties to the transaction; and the Court will look to that object: Goodtitle d. Edwards v. Bailey (1). Cur, adv. vult. LORD CAMPBELL, Ch. J., in this Term (June 13th), delivered the judgment of the COURT: In this case the argument turned upon the question whether certain deeds, purporting to be demises for ninety-nine years, made by Mr. Thomas Slingsby Duncombe whilst tenant in tail in remainder of the premises in question, and in the lifetime of his father, tenant for life of the same premises, operated by way of interesse termini only, or created an estate in the premises. In order to make out any case on the part of the lessors of the plaintiff, it was necessary for them to establish that the deeds in question operated merely by way of interesse termini, and not so as to create any estate. If they operated as a conveyance of part of the remainder, the plaintiff's case would be answered in two ways. First, the lease of 26th February, 1821, on which this ejectment was brought, would be merged in the subsequent term of the 4th September, 1822, by the same lessor to the same lessee. And, secondly, if the plaintiff's lease were kept alive, the legal title under it could not vest in possession, because a prior term of years of the 28th October, 1820, would have been prevented from merging in the inheritance under a deed of 1st July, 1849, by reason of the plaintiff's term intervening between such prior term and the inheritance. If the plaintiff's term was in existence as a term at the time of the intended surrender of 1st July, 1849, that deed could not have operated as a surrender, but would have operated as a grant of the prior term to the owners of the inheritance; and such prior term, not merging, by reason of the plaintiff's term intervening, would bar the right of the lessors of the plaintiff under their term. To prevent such effect of the terms, the plaintiff was obliged to contend that the deeds operated only by way of contract to pass an interesse termini, and that, in the absence of any election, they could not have passed any estate under the Statute of Uses, but must be taken as operating at common law. And that no estate was created under them until the entry made under the one on (1) 2 Cowp. 597, 600. DoE d. v. BROWN. [ *347] DoE d. AGAR v. BROWN. [348] which an ejectment was brought, and the possession recovered by Harriet Wormald, and until the lessors of the plaintiff entered under their lease before the present ejectment. Several nice questions were argued as to what might have been the result if those deeds had operated by way of interesse termini, and as to how far they might have operated under the Statute of Uses. But we think that we are not called upon to decide any of these questions; as we are of opinion that the deeds operated as a conveyance of part of the remainder under which an estate for years was carved out of the remainder, and vested at once in the respective lessees, by virtue of the statute of Anne, which gives operation to such deeds in the same manner as if an actual attornment had taken place. At common law, reversions and remainders, lying in grant and not being capable of being perfected by livery, as in the case of the grant of a freehold, or by entry in the case of the grant of a leasehold interest, required, for many purposes, an attornment of the tenant of the particular *preceding estate: but, where such attornment was obtained, the reversion or remainder, or the estate carved out of it, vested so as to give the grantee the right to the rents and services attached to the reversion, and, since stat. 32 Hen. VIII. c. 34, to sue on any covenant running with the reversion. The effect of this doctrine with regard to leases carved out of the reversion or remainder is very distinctly stated in Bac. Abr. tit. Leases (N) (1). If the grantees of such leases could not obtain an attornment, they might at their election treat the grant as an interesse termini: but, where they obtained the attornment, the grant operated as a conveyance of so much of the reversion. The statute of 4 Ann. c. 16, s. 9, now makes all grants of manors or rents, or of the reversion or remainder of any messuages or lands, effectual to all intents and purposes, without any attornment of the tenants of the manors or of the lands out of which the rent shall be issuing, or of the particular tenants upon whose estates any such reversions or remainders shall and may be expectant or depending, as if their attornment had been had and made. We must therefore consider these deeds as grants of interests out of a remainder to which the tenants of the preceding estates have attorned and the case then falls directly within the rule-as laid down in the passage in Bacon's Abridgment: and we must hold that the estates passed by way of grant of the terms carved out of (1) Vol. 4, p. 846 (7th ed.). Thomas Slingsby Duncombe's remainder, and vested at once in the lessees. The foundation of the plaintiff's case therefore failed: and our judgment must be for the defendant. Judgment for the defendant. DOE d. r. BROWN. ANDREWS . HAILES. (2 El. & Bl. 349–356; S. C. 22 L. J. Q. B. 409; 17 Jur. 621; 21 L. T. O. S. 151.) A tenant encroached on waste land, not belonging to his landlord, separated from his holding only by a road. He built on the encroachment, and continued to occupy it, as a part of his holding and ancillary to the occupation thereof, for more than twenty years. He then gave up the original holding to his landlord, but claimed to retain the encroachment as his own. In ejectment by the landlord: Held, that an encroachment made under such circumstances is, as between landlord and tenant, to be presumed to be part of the holding: that it rested on the defendant to show by other facts that the encroachment was not made as part of the holding; and that the mere intervention of the road did not rebut the primâ facie presumption. EJECTMENT for certain buildings and land situate in Essex. Defendant appeared for all the premises mentioned in the writ. On the trial, before Coleridge, J., at the last Spring Assizes for Essex, evidence was given that the premises in question consisted of a bakehouse, barn and stable. The defendant had been tenant from year to year, for twenty-three or twenty-four years, first to the plaintiff's father, who died in 1847, and then to the plaintiff, of a farmhouse with appurtenances. This property extended to a high road, on the other side of which was waste land open to the road. More than twenty years before the commencement of this action, the defendant took in a small portion of this waste land, opposite to the farmhouse which he held, and on the other side of the road and immediately adjoining to it. He built upon the land so taken in by him a bakehouse and offices, which he occupied along with, and as part of, the farm offices: and the land so built upon constituted the premises now in dispute. The defendant had held the whole ever since, paying no additional rent. He was always rated for the premises in question, and, also, was always rated separately for the premises which he originally held of the plaintiff's father. In July, 1850, the plaintiff gave the defendant notice to quit *" the house and premises, with the appurtenances, situate &c., "which you hold of me as tenant thereof." The defendant, at the expiration of the notice, gave up to the plaintiff R.R.-VOL. XCV. 38 1853. May 23, 24. [349] [ *350] ANDREWS v. HAILES. [ *351 ] the premises which he had originally taken, but refused to give Shee, Serjt. and H. Hawkins showed cause (1) : a rule nisi The fair inference from the facts is that the defendant made the encroachments on behalf of his landlord, intending to annex them to the premises which he held as tenant to the landlord, and treating the whole as one connected property. Doe d. Lloyd v. Jones (2) is a strong authority for the plaintiff. The land enclosed by the tenant was there, as here, separated from the tenant's farm only by a road; that cannot be considered to interrupt the contiguity. And it was there held that the legal presumption is, that the encroachment is made for the *benefit of the landlord, though the presumption may be rebutted: Bryan d. Child v. Winwood (3), Doe d. Challnor v. Davies (4), Doe d. Lewis v. Rees (5), Doe d. Dunraven v. Williams (6), Doe d. Harrison v. Murrell (7), all support this doctrine. The cases on this point were cited in the argument in Doe d. Baddeley v. Massey (8); but the COURT there held that the conduct of the parties showed that there was no intention of uniting the parcels: the presumption was therefore rebutted. Here nothing was shown to rebut the presumption. The smallness of the addition accounts for there being no additional rent and in Doe d. Lloyd v. Jones (9), ALDERSON, B. said that the circumstance was immaterial. The plaintiff's claim cannot be affected by the separate payment of rates, a transaction to which he (1) The case was heard partly on (5) 6 Car. & P. 610. (6) 48 R. R. 789 (7 Car. & P. 332). (8, 85 R. R. 493 (17 Q. B. 373). was not privy, and of which indeed he was not shown, nor was likely, to have any knowledge. Then, if the land in question was held with the premises demised, the Statute of Limitations has no effect; because the plaintiff's right to the whole first accrued on the expiration of the notice. M. Chambers and Prentice, in support of the rule: It is not a presumption of law that wherever a tenant encloses land it must under all circumstances be for the benefit of his landlord. It certainly would not be so when the enclosure was in a distant part of the country. There are, no doubt, some circumstances under which, according to the decided cases, the tenant does enclose for his landlord: as, however, it is not so in all cases, that must be a question of fact. (COLERIDGE, J.: No question was left to the jury upon this point; but leave was reserved to enter the verdict on the understanding that, if it was a question of law, the Court should decide, and, if a question of fact, the Court should draw the proper inferences from the undisputed facts.) The decisions are almost all cases at Nisi Prius. (LORD CAMPBELL, Ch. J.: Bryan d. Child v. Winwood (1) was the first case; there the lessor of the plaintiff was lord of the manor, and had therefore a right to approve. The tenant had enclosed part of the waste; and, as that act was illegal unless done for the lord, it might well be held that primâ facie it was done for him. But, when the land enclosed belongs to a third person, it does seem strange that the landlord should be supposed to authorize his tenant's theft (2).) In most, if not all, of the cases the landlord was the freeholder of what was enclosed. In Doe d. Lewis v. Rees (3) the enclosed land was between the farm and the sea shore, joining the two, and therefore prima facie belonged to the owner of the farm. In Doe d. Lloyd v. Jones (4), it is true, the lessor was not owner of the waste; but in that case there was an agreement endorsed on the lease that what was encroached should belong to the landlord. (1) 9 R. R. 751 (1 Taunt. 208). (2) Cited by FRY, J. in Att.-Gen. v. Tomline (1877) 5 Ch. D. 750, 766, 46 L. J. Ch. 654.—A. C. ANDREWS v. HAILES. [ *352] |