the premises had descended from the purchaser John Newman, made a settlement upon his intended marriage, whereby he conveyed the premises to trustees and their heirs to the use of himself for life, with a remainder to his intended wife for life, remainder to the issue of the marriage, and reversion to himself in fee. That in the year 1816, the said Richard Newman and his wife conveyed their life estates, and his reversion in fee, to Sarah Newman, the mother of Richard, as a security for 11627.; which appears to have been money then due from him to her. That Mrs. Newman, the mother, died in the year 1817, having previously devised her interest to some other relations. That William Denman, to whom the term had been assigned in trust, to attend the inheritance as aforesaid, died about four years ago; and that on the 19th March last, his son took out administration to him, and executed a deed, purporting to be an assignment of the term to a person therein named, in trust for the devisees of Mrs. Newman, the mother. Upon this evidence, two questions were made at the trial; whether the term might be presumed to have been surrendered and merged in the inheritance; and if it might not, then whether it was a trust within the 10th section of the Statute of Frauds, so as not to stand in the way of the execution on the judgment. The learned Judge thought this a case in which a Jury might presume a surrender of the term; and the matter being accordingly left to them, they found that the term had been surrendered. A motion was afterwards made for a non-suit, according to leave given by the learned Judge; a rule to shew cause was granted, and the matter argued before us very fully and ably. The same two points were made. And VOL. II. 3 F with 1819. DOE against HILDER with respect to the Statute of Frauds, a further point also: it being contended, first, that the trust of a term of years is not within the 10th section of the statute; and secondly, that if it be, yet in this particular case, the statute would not help the plaintiff, because the termor must be considered as a trustee, not for the debtor, but for the devisees of Mrs. Newman at the time of issuing the execution. Upon these points, however, it is not necessary for us to pronounce any judgment, because we are of opinion, that in this case, a surrender of the term might lawfully and reasonably be presumed. It is obvious, that if such a surrender had been made, it would probably not be in the power of the plaintiff to produce it, he being a stranger to the particulars of the title which his debtor had in the land. The principal ground of objection to the presumption was, that such a presumption had, in no instance hitherto, been made against the owner of the inheritance; the former instances being, as it was said, all cases of presumption in favour of such owner. But this proposition appears to be too extensively laid down. One of the instances in which it has been said that a surrender shall be presumed, is the case of a mortgagor setting up a term against his own mortgagee, and this is said generally, and without distinction, between a mortgagee in fee or for years. But if such a term be set up against a mortgagee for years, and a surrender presumed, the presumption is made against, and not in favour of the owner of the inheritance. It is made against his interest at the time of the trial, but in favour of his honesty at the time of the mortgage; for if the term existed at the time of the mortgage, he ought in honesty to have secured the benefit of it to the the mortgagee at that time, and not to have reserved it 1819. DOE against HILDER. 1819. DOE against HILDER him as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made; in such cases the things done or omitted may most reasonably be accounted for, by supposing a surrender of the term; and therefore a surrender may be presumed. We think there are such things in the present case. In the year 1814, Richard Newman the debtor, and then owner of the inheritance, made a settlement upon his intended marriage, which took place immediately. Upon such an occasion the title and title-deeds of the husband would probably be looked into by professional men, on the part of the husband at least, if not on the part of the wife also: and notwithstanding the assertion of one of the learned gentlemen, who argued this case on the part of the defendant, and by whom we were informed that it is not usual, on such occasions, to take any notice of an outstanding satisfied term; we cannot forbear thinking that such a term always ought to be, and frequently is, in some way noticed, either by the deed of settlement, or by some separate instrument; because if it be not noticed, and the termor be not called upon to assign the term to the uses of the settlement, nor any declaration of trust made of it to those uses, it may afterwards be made an instrument of defeating the settlement. The title-deeds usually remain with the husband, and if he be driven by necessity to borrow money, he may meet with a lender who has no notice of the settlement, and may by handing over his deeds, and obtaining an assignment of the term to him, and other conveyances, give to him a title that must prevail both at law, and in courts of equity, against the settlement. The supposed practice of taking no no notice of outstanding terms on such an occasion appears to have been insisted upon before Lord Hardwicke, in the case of Willoughby v. Willoughby, as applied to marriage settlements and purchases. But that very learned judge, in giving his judgment in that case, says, he had enquired of a very learned and eminent conveyancer, and could not find that there had been any such general rule. And he afterwards proceeds to say, "Where the assignment has been generally in trust to attend the inheritance, and the parties approve of the old trustees, they may safely rely upon it, especially in the case of a purchase or mortgage, where the title-deeds always are, or ought to be, taken in; for if he has the creation and assignment of the term in his own hands, no use can be made of it against him. Such instances as these may account for the practice in many cases, but cannot constitute a general rule." If in the present case it had appeared, that the deeds relating to the term were delivered to the trustees of the marriage settlement, as one of the securities for the settlement, the case would have stood on a very different ground. The marriage settlement, however, is not the only occasion on which we think it may most reasonably be supposed, that this term, if existing, would have been brought forward. It appears that in 1816, the same Richard Newman, being then indebted to his mother, and desirous of giving her security for the debt, prevailed upon his wife to join with him in conveying to her the interests they derived under the settlement. Upon this occasion, an assignment of the term, or a delivery of the deeds relating to it, would undoubtedly have been most important acts in favour of the mortgagee, because they would have protected 3 F3 the 1819. DOE against HILDER |