SECTION 3. produce and prove the lessor's title to demise, as is now commonly the case, still it is of course necessary to begin the deduction of title with the original lease; and all mesne assignments ought in general to be produced. In some cases this cannot be done; and when there is evidence of uniform possession for a considerable time conformably to the ownership under the lease, a willing purchaser will often relax the rule. Thus, in the neighbourhood of the Metropolis, there are several estates held for residues of long terms of years, some of which were created in the reign of Queen Elizabeth; and the deeds creating the terms with the early assignments cannot be found:-in these cases, if the abstract of the instruments in existence sets forth a good title of forty years, it is considered in practice as unobjectionable (a). Every case, however, of this nature must depend on its own particular circumstances; for it cannot be laid down as a general rule that where the lease or any of the mesne assignments have been lost, the purchaser may safely waive all objections on this ground, not even if they would afford no obstacle to his recovering the land in an action at law (b). Episcopal and other ecclesiastical leases. XXXIX. Episcopal leases, however, (and the same remark is equally applicable to the leases of other (a) Tyrrell, Real Prop. Rep. for dower, quare impedit, and App. i. 327. ejectment have been abolished by the stat. 3 & 4 Will. 4, c. 27, s. 36. (b) Sugd. Vend. & Pur. i. 338; Prest. Abs. i. 11. All real and mixed actions, except ecclesiastical bodies) are not governed by the same rules as those granted by private persons; for the right of a Bishop to demise, depends not on title, technically speaking, but on the statute law of the land. The principal points to be attended to are, 1st, that the estate demised is annexed to the see; and, 2ndly, that the leases, (for there is commonly a succession of them granted to the same person or his representatives), are conformable to the provisions of the statute law. In proof that the land belongs to the bishopric, no other evidence need be given than that which is afforded by the leases themselves, authenticated by the episcopal seal; for it is not to be supposed that a public functionary has either fraudulently put his seal to a public instrument, or acted under a mistake; and thus granted what does not belong to the see (a). Where there has been a succession of leases, such of them as have been made within the last fifty or sixty years ought at least to be produced and abstracted (b). SECTION 3. leases. It is the practice, too, in regard to leases by lay cor- Lay corporation porations, who have notoriously been the owners of the property demised for a very considerable period, not to require any evidence of title beyond that of the lessee (b). leases. XL. With respect to renewable leases, there is a Renewable peculiar difficulty which often proves fatal to the title. Most public bodies upon renewing an old (a) Fane v. Spencer, 2 Madd. 238; 1 Meriv. 430, n. SECTION 3. lease, require it to be given up; and as each successive lease is alleged to be made in consideration of the surrender of the one preceding it, a purchaser is commonly held to have notice of such surrendered leases, even though he cannot by any means obtain possession of them. (Vide Art. XXXIV.) And if the vendor cannot produce them so as to satisfy a purchaser that they disclose no trust which in equity would be considered to "affect his conscience," the Practice of con- title is deemed to be unmarketable (a). It has been renewable leases doubted, however, by a late eminent conveyancer, sidering title to unmarketable, doubted. whose opinion is now before me, whether there is any just foundation for the practice which has prevailed of treating titles under renewable leases as defective if a chain of leases back to a remote period cannot be produced. That practice, he observes, originated with the case of Coppin v. Fernyhough (b), a case which certainly does not bear out the proposition; for the decision against the mortgagee proceeded on the ground that he might by proper inquiry have obtained a knowledge of the plaintiff's title contained in the lease which referred to the will; and which lease must have been in existence and accessible, as it was in evidence in the cause. It may too be inferred from the cases of constructive notice that the ground of the doctrine is that notice shall be presumed wherever there was enough to put the party upon enquiry, and the circumstances were such that enquiry would have led to a (a) Sugd. Vend. & Pur. i. 339; Prest. Abs. i. 16. (b) 2 Bro. C. C. 291. knowledge of the fact. And the cases, he continues, negative the injustice of fixing one with constructive notice where by no activity of his own, he could have arrived at the fact: as in the case of a suppressed settlement (Jackson v. Rowe) (a), where Sir John Leach, V. C., well expressed the doctrine to be, that "he must be fixed with all the knowledge which it was reasonable he should acquire." Now, where is the difference, for this purpose, between a suppressed deed and an impounded deed, which the party in whose custody it is will not allow to be inspected; and where neither the want of possession of that deed by the vendor or mortgagor, nor the presumable contents of it, raise any ground for inferring a title in another? And how would it be possible, without a violation of every intelligent principle, to fix a person with constructive notice of the contents of deeds not essential to his title, and which, after application to the proper quarter, he was not permitted to inspect? (Vide Art. XXXIV.) SECTION 8. renewal or kind XLI. Leases are sometimes renewed on the ground Tenant right of of what in Scotland is appropriately termed "kind- lie. lie” (b), and in England a tenant-right; and although this right does not beget any corresponding obligation on the part of the lessor or lord, yet it is considered to give the tenant an ulterior interest beyond (a) 2 Sim. & Stu. 472. See also the late case, Cosser v. Collinge, 3 Myl. & K. 283, before cited, Ch. i. s. 1, art. v. p. 50. (b) See Dr. Jamieson's Scottish Dict. in verb.; and Mr. Ross's Lectures on the Law of Scotland, ii. 479. SECTION 3. his subsisting term. Precarious as such interest is, for it amounts to a mere chance, yet it is subjected in all respects to the same provisions as the most permanent property (a). Equity too has so far recognised the right of renewal, that if any one holding a fiduciary character, e. g. executor (b), trustee (c), guardian (d), or the like, avail himself of his position to obtain a renewal in his own favour, the Court will treat it as a graft upon the old lease, for the benefit of all persons interested therein. And where the renewal is obtained by one having only a partial interest in the old lease, e. g. tenant for life (e), mortgagee (f), joint-tenant (g), copartner (h), or the like, the same rule applies; neither is the rule relaxed where the renewed lease comprehends other property than what was originally demised; for in such a case all who were interested in the old lease will be entitled Johnson, Ib. 347; Taster v. (a) Bac. Abr. iv. 890, tit. 3 Meriv. 195, 196; Hardman v. Leases, (U); and see Mr. Hargrave's argument for the appellant in Lee v. Vernon, 5 Bro. P. C. 10, and Mr. Butler's note to Co. Litt. 290. b. n., 249, s. ix. (b) Luckin v. Rushworth, 2 Ch. Rep. 113; Finch's Rep. 392; Anon. 2 Ch. Ca. 207. (c) Reech v. Sandford, com- (d) Bac. Abr. iv. 891. (f) Fitzgerald v. Rainsford, 1 Ball & B. 37, 46; Bacon's Abr. iv. 891. (g) Ex parte Grace, 1 Bos. & Pull. 376; Killick v. Flexney, 4 Bro. C. C. 161; Palmer v. Young, 1 Vern. 276. (h) Featherstonehaugh v. Fenwick, 17 Ves. 298. |