1. RIGHTS TO REAL PROPERTY. CHAP. IV. plation, have been immemorial, that is, technically, "from time whereof the memory of man runneth not to the contrary," and which by law commenced in the beginning of the reign of Richard the First, A. D. 1189, so that until the late act, (†) any custom or prescription might have been destroyed by evidence of its non-existence in any part of the long period from that time to the present, (s) though nonuser for sixty years precluded any person from afterwards setting up a claim to a prescriptive right.(t) But the production of an ancient grant without date was holden not necessarily to destroy a prescriptive right of the same precise nature, because such undated deed might have been executed either prior to the time of legal memory or in confirmation of such prescriptive right, and not necessarily establishing that such right did not previously exist; (u) and it has been considered that a prescriptive right will not be destroyed by implication merely from the terms of an act of parliament.(x) It has also long been established in practice that as well customs and prescriptions would be sufficiently primâ facie proved by twenty years' uninterrupted user, or exercise of the claimed right or exemption, from which evidence a jury ought to be directed that they should infer and find the existence of the right immemorially; (y) and from upwards of 20 years' uninterrupted enjoyment of an easement or profit a prendre, grants, or as Lord Kenyon said, a hundred grants would be presumed even against the crown, if by possibility they could legally have been made. (2) There is, however, an exception to that general rule in the claim of toll thorough, where it is necessary to show expressly for what consideration it was granted, though such proof is not necessary in respect of toll traverse. (a) But notwithstanding this rule of evidence in favour of a custom or prescriptive right, still they, especially the latter, were liable to be defeated by actual proof negativing the supposition of an 2 & 3 W. 4, c. 71. 2 Inst. 238; 2 Bla. C. 31, note ; but per Ellenborough, C. J. there may be a good modus to include turkies, though that bird might have been introduced into this country within time of legal memory, as if there were a modus "for all domestic fowl," 12 East, 35. So although coaches were not in common use till after the reign of Elizabeth, yet a right of way might extend to them under a lost grant of way for "all carriages, &c." See also Ld. Kensington v. Pugh, 1 Young, 125; and 2 & 3 W. 4, c. 100. (t) 32 Hen. 8, c. 2; but see excep tions, Chit. Col. Stat. 697, in notes. (y) 2 B. & Cres. 54; 2 Saund. 175, a.; Peake, Ev. 338; 4 Price, R. 198; 2 Price, R. 450, as to customs, and as to prescriptions, Id.; 11 East, 284, 495. (s) 11 East, 284, 495. As to the necessity for the usage and enjoyment having been uninterrupted, see Benest v. Pisson, Knapp's R. 60. It must have been possessio longa continua et pacifica, nec sit legitima interruptio," Id. ibid. (a) 1 T. R. 667; 1 Bar. & Cres. 223. ancient agreement or grant, or by showing how the right had actually commenced, and that under circumstances which negatived any permanent right; and to remedy which the recent most important act, 2 & 3 W. 4, c. 71, was passed, entitled, "An Act for shortening the Time of Prescription in certain cases," and which recites, "whereas the expression, time immemorial," or "time whereof the memory of man runneth not to the contrary," is now by the law of England, in many cases, considered to include and denote the whole period of time from the reign of King Richard the First; whereby the title to matters, that have been long enjoyed, is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice; (b) and then enacts, that claims by custom, prescription, or grant, to a right of common or other profit or benefit, to be taken and enjoyed from or upon any land of the king's, or upon any ecclesiastical or lay person, or body corporate, (except as therein excepted, and tithes, rent, and services,) shall not be defeated after thirty years' enjoyment by actual proof of the commencement, but provides, that nevertheless such claim may be defeated in any other way by which the same was, at the time of passing the act, liable to be defeated. (c) But that after sixty years' enjoyment of such a right it should be absolute, unless had by consent or agreement, expressly made or given for that purpose by deed or writing. (d) There is then a similar enactment, as to any way or other easement or watercourse, or to the use of any water (e) uninterruptedly enjoyed for twenty years, subject nevertheless to be defeated as aforesaid; and a claim to the use of light, uninterruptedly enjoyed for twenty years, is indefeasible, unless shown to have been under a consent by deed or writing; (f) and it is provided, that no interruption shall prejudice unless submitted to for a year. And then follow regulations with respect to the form of pleading, authorizing the mere statement of the long continued enjoyment without pleading in a que estate, as was before essential, with exceptions as to infants and other persons, and enjoyments under tenants for life. (g) It will be observed that the principal objects of this act were two, (b) The ancient rule was not objectionable in its commencement, see 2 Bla. C. 31, note (u). It will be observed from the words in italic that the act only extends to that particular mode in which a prescriptive right might be defeated, and that the act does not extend to other cases, such as extinguishment by unity of seisin, &c. (c) Semble, therefore, that proof of unity of seisin might still defeat a claim of common or profit a prendre. (d) 2 & 3 W. 4, c. 71, s. 1. (e) Semble, this does not extend to a (f) 2 & 3 W. 4, c. 71, s. 2, 3. CHAP. IV. I. RIGHTS TO REAL PROPERTY. 1. RIGHTS TO REAL CHAP. IV. first, to prevent a claim by custom or prescription from being defeated by proof that it originated within the ancient time PROPERTY. of legal memory; and secondly, to simplify the course of pleading; but that it expressly reserves other objections to such claims, such as extinguishment by unity of seisin ; and therefore it will be found that much of the ancient law still remains unaffected. The act affects the king, ecclesiastical persons, and corporations as well as lay persons, so that now an incorporeal right may exist after twenty years' possession against the king or the successor of a rector or other ecclesiastical person; (h) and consequently it is still advisable in conveyances to introduce fresh words of grant of common or way, &c. so as to provide for or prevent the consequences of any such extinguishment. (i) There is an enactment upon the same principle as to modusses and exemptions from tithes. (k) Fourthly, Title by forfeiture. (1) Fourthly, Title by forfeiture we have seen is the fourth subdivision of title by purchase, and was again sub-divided by Blackstone into forfeitures-1st. By crimes and misdemeanors; 2dly, By alienation contrary to law and disclaimer; 3dly, By lapse or non-presentation to a benefice in due time; 4thly, By simony; 5thly, By non-performance of conditions; 6thly, By waste; 7thly, By breach of copyhold customs; and 8thly, By bankruptcy; (m) to which may be added other means of total or partial forfeiture, or loss of an estate; 9thly, By insolvency; and 10thly, By judgment and elegit, or extent, &c. 1. Forfeiture for crimes and misdemeanors are for treason, felony, misprision of treason, premunire, &c. (n) We have seen that the 54 Geo. 3, c. 145, prevents any attainder, except for high-treason or murder, or for abetting the same, from disinheriting any heir, or prejudicing the claim of dower, or the right of any other person than the offender; and the forfeiture is only for the life of the offender; and even to that extent there should be an office found. (0) ; (h) 2 & 3 W. 4, c. 71, s. 1, 2 but see s. 7 & 8; 4 B. & Ald. 579. (i) Ante, 156, 157, as to appurtenances and as to rights of common. In a recent case, K. B. Hil. T. 1833, it was held that though the conveyance professed to pass all ways appurtenant or belonging to the principal messuage, yet that unity of previous seisin destroyed the claimed way, because the word belonging was only synonymous to appertaining; not like the words, all ways therewith used, &c. (1) See division, ante,279, and in general 2 Bla. C. 267 to 287. (m) 2 Bla. C. 267, chap. xviii. (n) See in general 1 Chitty's Crim. L. 727 to 737; Burn's J., Forfeiture; ante, 279, as to escheat. (0) 5 Bar. & Cres. 587. 2. Forfeiture may also be by conveying to an alien, who may CHAP. IV. take but cannot hold, and upon office found the king is entitled in case of freehold tenure. (p) 3. Alienations by a particular tenant for a time, or in a manner inconsistent with the nature of his qualified interest or estate, is a ground of forfeiture, and entitles the person next in remainder or reversion to enter and enjoy the estate; as if a tenant for his own life alien by feoffment, or fine, or recovery, for the life of another, or in tail, or in fee, these being estates which either must or may last longer than his own, and the creating them is not only beyond his power, but inconsistent with the nature of his interest, and a fraudulent attempt to prejudice those in remainder or reversion, and consequently are forfeitures of his own particular estate. (q). But we have seen that some conveyances are termed innocent, and do not occasion a forfeiture; (r) and that a lease and release, or bargain and sale, by a tenant for life, though professing to pass the fee, are of this nature, because no estate passes by those modes of conveyance other than what might legally pass. (s) So a fine of an equitable tenant for life will not work a forfeiture. (t) So the alienation in fee by deed by tenant for life of any thing which lies in grant, as an advowson, common, &c. does not amount to a forfeiture; (u) though a fine in fee of such an estate would be a forfeiture. (u) But the forfeiture by such improper conveyances will not prejudice leases, &c. by him previously granted.(x) Disclaimer is a denial by a tenant of his landlord's title either by refusing to pay rent, or by setting up a title in himself or a third person, and this is a distinct ground of forfeiture of the lease, or other tenancy, (y) whether of land or tithe; (2) but a qualified denial, as an offer to pay rent, if the claimant by derivative title will adduce reasonable evidence of his right, will not necessarily amount to a disclaimer. (a) 4. Forfeiture by lapse applies only to advowsons, and the exercise of the right of presenting an ecclesiastical person to a vacant church and its incidents, and which presentment must (y) Bul. N. P. 96; when a qualified denial will not operate as a disclaimer, see Peake's R. 196: Adams's Eject. 124, 125; 2 Bla. C. 275. (z) 1 Brod. & Bing. 4. (a) Peake's R. 196; any more than a similar answer would necessarily import a conversion in trover, 5 B. & Ald. 247; 3 Campb. 215; Bulstr. 312; 2 Bos. & Pul. 464; 5 Moore, 259; 1 Esp. R. 83. I. RIGHTS TO REAL PROPERTY. CHAP. IV. 1. RIGHTS TO REAL PROPERTY. be made within six calendar months, to prevent the suspension of religious worship in the parish, or the right will, in most cases, be forfeited for that turn, and until another fresh vacancy. (b) 5. The offence of simony is defined and punished as a distinct act of forfeiture by the 31 Eliz. c. 6, s. 3. (c) 6. Forfeitures by breaches of covenants in leases and other deeds are by far the most frequent subjects of litigation, (d) and to take advantage thereof it is not essential that the party should have any reversion. (e) But the proviso operates only during the term. (f) We may here observe in general, that the breach complained of must come within the very letter of the covenant, or the lease will not be forfeited; (g) and though courts have formerly and not merely inclined a construction against forfeiture; (h) but of late a more correct rule has been observed, and covenants as well as clauses of re-entry are to be fairly construed and given effect to according to the words and apparent intention of the parties, precisely in the same manner that all other contracts ought to be construed at law, leaving the party whose lease may be thereby forfeited to seek any equitable relief to which he may be entitled in a Court of Equity. (i) Waivers of forfeitures may be either by express declaration, or by act inconsistent with the supposition of a forfeiture, and, in effect, admitting a continuing tenancy, as acceptance of rent that has accrued due since the act of forfeiture, or encouraging the tenant to make subsequent improvements; and these are to be liberally (b) 2 Bla. R. 276; Mirehouse on Advowsons, 162; 44 Geo. 3, c. 43. (c) See ante 164, and in general 2 Bla. C. 279, and notes; Fox v. Eishop of Chester, 2 Bar. & Cres. 635 ; Ambl. 268; 2 Bla. R. 1052; 2 Bro. Parl. Cas. 811; 5 B. & Ald. 835; 4 M. & S. 66; 1 East, 391; 6 Taunt. 333, and notes; 2 Bla. Com. 279, 280; 8 B. & Cres. 25. (d) See in general the cases ably col- (e) Doe v. Bateman, 2 B. & Ald. 168. (g) Adams's Ejectment, 176; 3 Bar. & for non-payment of rent, see chap. v. post. (h) 2 Term R. 739, 744; and see Co. Lit. 201, b., 202, a; 7 Co. 28; and 1 Saun i. 287, in notes, where it is said that the law leans against forfeiture. (i) Lord Tenterden uniformly observed to juries, in actions of ejectment for forfeiture," that they were not to indulge any prejudice against the action on the ground of forfeiture being supposed odious, but merely to consider whether, upon the evidence, there had been a substantial breach of covenant." And see 4 M. & S. 265, and cases cited 3 B & Adolp.301. As it is not always for the benefit of a landlord that a forfeiture should be taken advantage of and a lease treated as forfeited, a Court of Equity will sometimes restrain an action of ejectment for a forfeiture of a lease of a lunatic's estate, 1 Turn. & R. 34. |