estate. An estate was devised to trustees in trust for I. S., an infant, with directions to convey the same to him on his attaining twenty-one (d). In an action of ejectment, brought four years after I. S. attained twenty-one, it was holden, that a jury might be directed to presume a conveyance to 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 (e), from which a surrender of the term can be presumed (4); or, if it appear in a special verdict (f), or special case (g), 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 5,000l.; 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 (h), 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 surrendered (6). It

(d) England d. Syburn v. Slade, 4 T. R. 682.

(e) Doe d. Blacknell v. Plowman, 2 B. & Ad. 573.

(f) Goodtitled. Jones v. Jones, 7 T. R.49. (g) Roe d. Reade v. Reade, 8 T. R. 122. (h) Doe d. Blacknell v. Plowman, 2 B. & Ad. 573.

(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 termor, and to bar it as a continuing interest." 3 Sugden, V. & P. 28, 10th 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 Geo. III. 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 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

will be observed 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 (i) to make it.

A. devised an estate to trustees for a term of years, in trust to pay annuities, and for other purposes mentioned in the will, with remainder to B.; B., eighteen years after the death of A., leased the premises for lives. In an action by the lessee of B., the jury were told by the judge that they could not presume a surrender of the term; and upon motion this direction was holden to be right (k).

The plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of that of the defendant (1). Possession gives the defendant a right against every person who cannot show a good title (m). 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 landlord (n); nor if B., claiming under A., let lands for a year and die, and A., after the expiration of the term brings an ejectment

(i) Doe d. Hammond v. Cooke, 6 Bingh. 174.

(k) Day v. Williams, 2 Cr. & J. 460. (1) Per Lee, C. J., delivering the opinion of the court, in Martin v. Strachan,

5 T. R. 110, n.

(m) Per Lord Mansfield, C. J., 4 Burr.. 2487.

(n) See Driver d. Oxendon v. Laurence, 2 Bl. R. 1259.

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, 3 Sug. V. & P. 65, 10th edition; Doe v. Putland, ib. 59 Matthews on the Doctrine of Presumption, 226.

against C., can C. dispute (o) the title of A.; nor where tenant in possession has paid the 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 (p). "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 landlord (q)." There is not any distinction between the case of a tenant and that of a common licensee. The licensee, by asking permission, admits that there is a title in the landlord. Hence, where the lessor of the plaintiff being in possession of a house, &c., defendant asked leave to get vegetables in the garden, and having obtained the keys for this purpose, fraudulently took possession of the house and set up a claim of title: it was holden (r), that defendant having entered by leave of the party in possession, she could not defend an ejectment, but was bound to deliver up possession to the party by whom she was let in, for she could not contest the title. 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 201. The landlord afterwards brought ejectment against the party so in possession, the term having been forfeited by non-payment of rent, and there being no sufficient distress on the premises. It was holden, that this case fell within the rule whereby the tenant is precluded from contesting his landlord's title (s). So also where a copyholder (t) 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 showing that the legal estate was not in the lord at the time of admittance.

But a tenant, though he cannot dispute his landlord's title at the time of the demise, may show that it has since expired (u). Where the lessor of the plaintiff holding an estate under a lease for twenty-one years (x), underlet the same to the defendant for a year, and the defendant held over after the expiration of the twenty-one 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

(0) Barwick v. Thompson, 7 T. R. 488. (p) Doe d. Knight v. Smythe, 4 M. & S. 347, recognized in Doe d. Bullen v. Mills, 2 A. & E. 17. See Balls v. Westwood, 2 Campb. 11.

(q) Per Dampier, J., 4 M. & S. 348, 9, cited by Parke, J., Doe d. Manton v. Austin, 9 Bingh. 45, 6. See also Cooper v. Blandy, 1 Bingh. N. C. 45. But see a distinction in Hopcraft v. Keys, 9 Bingh. 613.

(r) Doe d. Johnson v. Baytup, 3 A. & E. 188.

17.

(8) Doe d. Bullen v. Mills, 2 A. & E.

(t) Doe on the demise of Sir E. Nepean v. Budden, 5 B. & A. 626.

(u) Downs v. Cooper, 2 Q. B. 256; 1 G. & D. 573.

(x) England d. Syburn v. Slade, 4 T. R. 682; Doe v. Ramsbottom, 3 M. & S. 516, S. P.; Doe d. Lowden v. Watson, 2 Stark. N. P. C. 230, S. P. See Gravenor v. Woodhouse, 1 Bingh. 38; Cornish v. Searell, 8 B. & C. 471; Brook v. Biggs, 2 Bingh. N. C. 572.

to show, 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 owner (y). M., being seised in fee of land, mortgaged to O., but remained in possession, and afterwards demised part for a term to B., who also entered; after which, M. mortgaged to H. H., after this, received rent from B., and demised the other part to A. Afterwards B. and A., on notice from O., paid O. rent. H. then brought ejectment (after notice to quit) against B. and A. holden (2), that B. as well as A. might show in defence the prior mortgage to O., O.'s notice to them, and their payment of rent to O.; for, although B. could not dispute M.'s title at the time of the demise, yet he might show that H. had not any derivative title from M., and he was not precluded by having paid rent to H., under a mistake of the facts.

It was

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), Moore, 569; 1 Leon. 4; Cro. Eliz. 535; 4 Rep. 26, a.; Cro. Jac. 31; Yelv. 144; 1 T. R. 600. A copyholder

(y) Fenner v. Duplock, 2 Bingh. 10.
(z) Doe d. Higginbotham v. Barton, 11

A. & E. 307; P. & D. 194, recognized in
Claridge v. Mackenzie, 4 M. & Gr. 143."

(7) If the copyholders of a manor belonging to a bishoprick, during the vacancy of the see, commit a forfeiture by cutting timber, the succeeding bishop may bring ejectment. Reed 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 heir 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. 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. Rex 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. IV. c. 25, s. 7, restored him to his competency, and the estate would not vest in the lord without any act done by

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 (a). 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 (b). A lessee for years of a copyholder may maintain ejectment, though there be no custom in the manor to lease, and no license has been obtained, such lease being void only as against the lord (c). 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 (d), but the heir claiming under a tenant-right of renewal in customary lands to which the tenant is admitted for the joint lives of himself and the lord cannot maintain ejectment before admittance (e).

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 (f). 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 (g). But after admittance, surrenderee may maintain ejectment against surrenderor, and lay his demise on a day between the times of surrender and admittance (h). Admittance of tenant for life is admittance of him in remainder, without any other admittance (i). And the heir of a devisee in remainder who has died without entry (the tenant of the particular estate having been admitted) can maintain ejectment (k). 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 (1). And a cus

(e) Doe d. Hamilton v. Clift, ub. sup. (f) Roe v. Loveless, 2 B. & A. 453. (g) Wilson v. Weddell, Yelv. 144. (h) Holdfast v. Clapham, 1 T. R. 600. (i) Auncelme v. Auncelme, Cro. Jac. 31; Warsopp v. Abell, 5 Mod. 307.

(k) Doe d. Parker v. Thomas, 3 M. & Gr. 815; 4 Scott's N. R. 449.

(1) Gipping v. Bunning, Moore, 465.

him. Doe d. Evans v. Evans, 5 B. & 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.