Homfray 6 A. & E. 207.; Fletcher, on the Legal Estate of Trustees, p. 30. A devise to trustees in trust to pay to or permit and suffer to receive, gives the legal estate to cestui que trust; because, being inconsistent, the last words shall prevail in a will. Doe v. Biggs, 2 Taunt. 109. Yet where the trustees under such a devise were to repair, to let, &c., it was held they took the legal estate; White v. Parker, 1 New Ca. 573.; and where the trust, as to three undivided parts out of four, required the legal estate to be in the trustees, it was held to vest in them as to all. S. C. ib. Where an estate is devised to trustees for particular purposes, the legal estate is vested in them as long as the execution of the trust requires it, and no longer; and as soon as the trusts are satisfied, it will vest in the person beneficially entitled. Per Bayley J., Doe v. Nicholls, 1 B. & C. 342.; and see Doe v. Simpson, 5 East, 171.; Fletcher, on the Legal Estate of Trustees, p. 50.

Proof of legal title- Presumption of surrender.] In certain cases where the legal estate has been vested in a trustee, and there is no direct evidence of a conveyance or surrender to the cestui que trust, a jury may presume such conveyance or surrender. Lade v. Holford, B. N. P. 110.; Goodtitle v. Jones, 7 T. R. 45. Thus where an estate is directed to be conveyed, a jury may, within four years from the time when the estate was directed to be conveyed, presume that it has been so conveyed by the trustees. Doe v. Slade, 4 T. R. 682. So where it is for the interest of the owner of the inheritance that a satisfied term should be considered as surrendered, and it appears that no beneficial purpose can be answered by the continuance of the term, a surrender may be presumed. Doe v. Wrighte, 2 B & A. 720. Thus a term of 1000 years was created by deed in 1717, and in 1735 was assigned for the purpose of securing an annuity to A., and, after that, to attend the inheritance; A. having died in 1741, and the estate having remained undisturbed in the hands of the owner of the inheritance and his devisee from 1735 to 1813 without any notice having been in the mean time taken of the term, except that in 1801 the devisee, in whose possession the deeds creating and assigning it were found, covenanted to produce those deeds when called for, it was held that under these circumstances the jury were warranted, on ejectment brought by the heir at law, in presuming a surrender of the term. S. C. Ibid. Again in the case of a satisfied term, where acts are done or omitted by the owner of the inheritance and persons dealing with him as to the land, which ought not reasonably to be done or omitted if the term existed in the hands of the trustee, and there does not appear to be any thing to prevent a surrender from having been made, those acts have been considered evidence from which a jury may presume such surrender. Doe v. Hilder, 2 B. & A. 791. But in Doe v. Plowman, 2 B. § Ad. 573., and in Aspinal v. Kempson, Sugd. V. & P. 446. (8th ed.) cor. Lord Eldon C., the doctrine held in the above cases was questioned, and the circumstances were considered insufficient to found a presumption of the surrender of a term attendant.

Where a term of years becomes attendant upon the inheritance either by operation of law, or by a special declaration, upon the extinction of the objects for which it was created, the enjoyment of the land by the owner of the reversion (thus become the cestui que trust of the term) may be accounted for by the union of the two characters of cestui que

trust and inheritor; and there appears therefore to exist no circumstance from which a jury can imply a surrender. Doe v. Hilder, B. & A. 791.; Townsend v. Champernown, 1 Y. & J. 544. The mere fact of a term being satisfied furnishes no ground from which the jury can presume it surrendered. Evans v. Bicknell, Ves. 185. There ought to be some dealing with the term to authorise such a presumption. Ibid.; Cholmondeley v. Clinton, cited Sugd. V. & P. 426.; Doe v. Williams, 2 M. & W. 749. Where a term has been expressly assigned to attend the inheritance, and there has been no act or omission inconsistent with the existence of the term, there is less ground to presume a surrender from the mere lapse of time and silence of the party who possesses the inheritance. See Sugd. V. & P. 389. 391.; Doe v. Plowman, 2 B. & Ad. 573. So the recognition of the term as subsisting at a late period, (Doe v. Scott, 11 East, 478.); the fact that it would have been contrary to the duty of the trustees to surrender the estate, (Keene v. Deardon, 8 East, 267.); or that the original enjoyment of the party who sets up the presumed conveyance was consistent with the fact of there having been no conveyance, (Doe v. Reed, 5 B. & A. 237.); are all circumstances from which a jury may infer that no conveyance has taken place. Where A. devised an estate to trustees for years with remainder to B., and B., eighteen years after the death of A., treated the estate as his freehold and leased it for lives, it was held that the jury ought not to presume a surrender of the term; and per Bayley B. "Is there any case where a surrender has been presumed within twenty years? I do not think that a jury ought to be required to presume what they do not believe. In the present case, if a surrender had really taken place, it must have been known to many individuals." Day v. Williams, 2 C. & J. 460. "No case can be put in which any presumption has been made, except where a title has been shewn by the party who calls for the presumption, good in substance, but wanting some collateral matter necessary to make it complete in point of form." Per Tindal C.J., Doe v. Cooke, 6 Bing. 179.

Proof of legal title -answer by the defendant.] The defendant may, in some cases, disprove the legal title of the party through whom both he and the lessor of the plaintiff claim. Thus, where the lessor claims under a lease from A. B. in 1818, and the defendant under a conveyance from A. B. in 1824, the defendant may shew that, in 1818, A. B. had no power to make such lease. Doe v. Powell, 1 A. & E. 531. But where A., without title, entered upon land and built a cottage, and afterwards accepted a lease by indenture from B.; and defendant, claiming the land as his own, paid A. 201. to give up possession to him; it was held, in ejectment on the demise of B., that A. had estopped himself from controverting the title of B., and that the defendant was bound by the estoppel, having come in under, and received possession from, B. v. Mills, 2 A. & E. 17. So, where the defendant fraudulently got possession by obtaining the licence of the occupier, and then set up an adverse title, held, that the occupier might eject him without proof of title. Doe v. Baytup, 3 A. & E. 188. The defendant, as already stated, (antè, p. 201., 412.), may shew that the title of the lessor of the plaintiff has expired. Thus, in ejectment for a forfeiture, he may shew that his lessor has conveyed away all his legal estate by way of mortgage, though the mortgagee has never enforced his rights. Doe v. Ed

Doe

wards, 5 B. & A. 1065. As to the estoppel between landlord and tenant, see post," Ejectment by Landlord.”

Entry to avoid a fine levied with proclamations.] It was formerly necessary to prove an actual entry before action brought, where an estate was divested by a fine levied with proclamations; and the ejectment must have been brought within a year after entry; but fines and recoveries having been abolished by 3 & 4 W. 4. c. 74., the cases under this head have been omitted. Where a termor makes a feoffment, and levies a fine with proclamations, and thereby incurs a forfeiture, yet the terin may, until entry, be treated as subsisting, so as to enable his executor to recover in ejectment. Doe v. Pett, 11 A. & E. 842.

Actual ouster, co-tenants.] The ouster, as well as the lease and entry, is in general confessed by the consent rule; but where the action is brought by one joint-tenant, parcener, or tenant in common against his companion, the court will allow the defendant to enter into a special rule confessing the lease and entry, and also the ouster "if an actual ouster of the plaintiff's lessor by the defendant shall be proved at the trial, but not otherwise."

Where a tenant in common had been in the sole and uninterrupted possession for thirty-six years without account to, or demand by, his companion, this was held to be ground for a jury to presume an ouster. Doe v. Prosser, Cowp. 217. So if one tenant in possession claims the whole and denies possession to the other, this, being beyond the mere act of receiving the whole rent, is evidence of an ouster. Doe v. Bird, 11 East, 49. So where three of four co-tenants authorised a company to use the land for a railroad, it was held that such an occupation amounted to an ouster. Doe v. Horn, 5 M. & W. 564. Before the statute 3 & 4 W. 4. c. 27., it was held that a bare perception of the profits by one tenant in common, for twenty-six years, was no ouster. Fairclaim v. Shackleton, 5 Burr. 2604. And where one tenant in common levied a fine and took the rents and profits afterwards without account for nearly five years, it was held that there was no evidence from which a jury could presume (contrary to the justice of the case) an ouster of the other tenant. Peaceable v. Read, 1 East, 568.

By 3 & 4 W. 4. c. 27. (for limitation of actions), s. 12., it is enacted, that where any one or more of several persons entitled to any land, or rent, as coparceners, joint-tenants, or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their undivided share of such land or of the profits, or of such rent, for his or their own benefit, or for the benefit of any person, other than the person entitled to the other share of the same land or rent, such possession or receipt shall not be deemed the possession or receipt of or by such last-mentioned person or persons or any of them.

It has been thought that, by reason of this provision, ejectment will now lie by one co-tenant against another who is in possession of the whole, without proof of an actual ouster, and that the defendant ought no longer to be permitted to enter into a special consent rule; but it seems that the former practice in this respect continues. Per Littledale J., Bail Court, M. T. 1838; and see Doe v. Horn, 3 M. & W. 333.

If a special consent rule has not been entered into, the common

consent rule will be evidence of an actual ouster, so as to enable the joint-tenant to recover. Oates v. Brydon, 3 Burr. 1895.; Doe v. Cuff 1 Camp. 173.

The local situation of the premises.] A variance in the local situation of the premises is fatal, unless amended. Goodtitle v. Lammiman, 2 Camp. 274. Where they were described as lying in the parish of Farnham, and proved to be in the parish of Farnham Royal, it was held to be no variance. Doe v. Salter, 13 East, 9. And where they were described as situate in the parish of Westbury, and it was proved that there were two parishes of Westbury, viz. Westbury on Trym, and Westbury on Severn, this was held no variance. Doe v. Harris, 5 M. & S. 326. Where the premises were described as situate in the parish of A. and B., and at the trial it appeared that some of the lands lay in the parish of A. and some in the parish of B., and that there was no parish of A. and B., and the plaintiff had a verdict, the court refused a rule for a new trial. Goodtitle v. Walter, 4 Taunt. 671. In a similar case, however, Parke B. held it a variance, but permitted an amendment; Doe v. Edwards, 1 M. & Rob. 319.; and this was approved of by the court in Doe v. Leach, 3 M. & G. 229. If the word parishes had been used, the allegation would have been divisible. S. C. ib. If the premises are described to be in St. Mary, Lambeth, and by the evidence appear to be in Lambeth, it not being proved that these are distinct parishes, it seems to be no variance. R. v. Glossop, 4 B. & A. 619.; Kirtland v. Pounsett, 1 Taunt. 570. So where the premises were laid to be in the parish of St. Luke in the county of Middlesex, and it appeared that there were two parishes of St. Luke in that county, the one St. Luke Chelsea, and the other, St. Luke Old Street, usually called St. Luke, Middlesex (where the premises in fact were), the description was held sufficient. Doe v. Carter, 1 Y. § J. 492.

The power of amendment at Nisi Prius has rendered a variance of little moment where the merits are not affected by it; see antè, p. 67. ; and this power may be exercised by amending the day of the demise alleged in the declaration. Doe v. Leach, 3 M. & G. 229.

Ejectment by Landlord.

In ejectment by a landlord, the lessor of the plaintiff must prove the demise and its expiration, either by efflux of time, notice to quit, disclaimer or forfeiture.

If a demise from the lessor of the plaintiff to the defendant be proved, no other evidence of title need be given, as the tenant cannot dispute the title of his landlord; Doe v. Samuel, 5 Esp. 174.; Gravenor v. Woodhouse, 1 Bing. 43. ; or of his assignee; Gouldsworth v. Knights, 11 M. & W. 337. So in ejectment by the reversioner after an estate for life, the tenant who has paid rent to the tenant for life cannot dispute the title of the reversioner. Doe v. Whitroe, D. & R. N. P. C. 1. And a person claiming under, or who has received possession by, the voluntary act of the tenant, is equally estopped. Doe v. Mills, 2 A. & E. 17., cited fully antè, p. 415.

A mere licensee is on the same footing as a tenant; therefore where

a party fraudulently obtained leave to enter from a servant of the lessor of the plaintiff, and then set up a title to the premises, it was held that he could not defend an ejectment, but was bound to deliver up possession before he disputed the title. Doe t. Baytup, 3 A. & E. 188. Where A. conveyed lands in fee with an agreement that he was to remain in possession during his life; held, that A.'s widow could not defend her possession in an ejectment at the suit of the alienee by setting up the title of a party to whom her husband had previously mortgaged the land. Doe v. Skirrow, 7 A. & E. 157. A person admitted to defend as landlord is bound by the tenant's estoppel. Doe v. Mizem, 2 M. & Rob. 56. Even a servant rightfully in possession may eject a person, who claims under him, without any proof of title in himself; nor can the defendant set up any title against his devisee. Semb. Doe v. Birchmore, 9 A. & E. 662. But a lessee may shew that his lessor was mortgagor in possession when he made the lease, and that the mortgagee has since treated the mortgagor as a trespasser, and demanded rent of the defendant. Doe v. Barton, 11 A. & E. 307. A payment of rent under error is no estoppel. S. C. ib. See further, ante, p. 196, 197., and post tit. Replevin; Plea, non tenuit.

Proof of the tenancy.] If the demise is by deed or in writing, it must be proved (unless admitted) by the production of the original, or of a counterpart original. Roe v. Davis, 7 East, 363. If in the defendant's possession, notice to produce it should be given. Where the lease is by parol, it may be proved by a person who was present at the making, or by an admission of the defendant. 2 Phill. Er. 221. And though the terms of the lease have been committed to writing not signed by the parties, they may still be proved by parol. R. v. St. Martin's, Leicester, 2 A. & E. 210.; see also antè, pp. 1. 3. And though the terms of such lease are in writing, they may be proved by verbal admissions of the opposite party. Howard v. Smith, 3 M. & G. 254.

Proof of tenancy from year to year.] Evidence of a demise from year to year may, in the absence of other proof, be gathered from the payment and receipt of yearly rent. Doe v. Horn, 3 M. & W. 339. Thus, if the tenant for life leases and dies, and the remainderman receives rent from the tenant, a tenancy from year to year is created. Sykes v., cited 1 T. R. 161.; Bishop v. Howard, 2 B. & C. 100. Where payment of rent is the only proof of tenancy, defendant may shew that the lessor of the plaintiff received it as agent for another. Doe v. Francis, 2 M. & Rob. 57. When the party has been let into possession under a lease void by the statute of Frauds, payment and receipt of rent will be evidence of a tenancy from year to year regulated by the covenants and conditions of the void lease. Doe v. Bell, 5 T. R. 471. So where he agrees to hold over after the expiration of a written lease at an advanced rent, he will be presumed to hold upon the terms of the former lease. Digby v. Atkinson, 4 Camp. 275.; Hulton v. Warren, 1 M. & W. 475. The presumption, however, is one of fact, and not of law; see Johnson v. St. Peter, Hereford, 4 A. & E. 520. So where the party is let into possession and pays rent under an agreement for a lease, a tenancy is created on the terms of the lease. Mann v. Lovejoy, R. & M. 355.; Knight v. Benett, 3 Bing. 361.; Doe v. Stratton, 4 Bing. 446. And where the lease is to contain a clause of re-entry for breach of a husbandry covenant,