SECTION 3.

party not to be evicted.

And it is further enacted, by s. 25, that no person

After exchange, to whom any land shall have been granted or conveyed in exchange according to the provisions of this act shall at any time thereafter be evicted from the peaceable and quiet possession of such land by reason or in consequence of any person claiming right thereto through any title prior to that of, or through any defect of title in, the person by whom such land may have been granted or conveyed; but the act provides that it shall be lawful for the person claiming such right, to use, exercise, and enjoy all such and the same powers and remedies in trying his right to and in obtaining and recovering possession of the land which shall have been granted or conveyed in exchange as the person so claiming would in case this act had not been made have been enabled to use, exercise, or enjoy in trying the right to and recovering the possession of the land in exchange for which the same shall have been so granted or conveyed under the authority of this act (a).

(a) For some further observations on exchanges, see Book III. Ch. V. of this Essay.

173

CHAPTER III.

OF THE EVIDENCES OF TITLE.

SECTION 1.

Of Evidence of Title by Descent.

SECTION 1.

stipitem.

I. IT being an established canon of the common law that inheritances shall lineally descend to the Seisina facit issue of the person who last died actually seised, it is necessary, in order to establish a title by descent (except as regards any descent happening on the death of any one dying after the 1st day of January, 1834) (a), to prove the actual seisin of the ancestor; and for this purpose it must be shewn that he had possession of the estate, either by his own entry or that of a tenant for years, or by having received rent from a lessee of the freehold, or in case of incorporeal hereditaments, and of estates in reversion or remainder, by having exercised acts of ownership. (Vide Chap. II. s. 2, Art. XI.) According to the practice Evidence of of conveyancers, an actual seisin may be proved by the production of leases or counterparts of leases,

(a) 3 & 4 Will. 4, c. 106, ss. 2 and 11. See Ch. II. s. 1, Art. 11, p. 104, ante.

seisin of ances

tor.

Intestacy of

ancestor.

rent-rolls, extracts from the assessments to the land tax or poor-rate, or by such other evidence as is sufficient to produce a strong presumption of actual seisin, though it may be inadmissible or inadequate to prove the fact in a court of law. It seems that under some circumstances assessments are legal evidence (a); but when made in the family name merely, they cannot prove the actual seisin of any particular person not specifically mentioned (b). It has been also held, that the declaration of a deceased occupier touching his tenancy is admissible in evidence of seisin, on the ground that such a declaration by one, who, being in possession, is primâ facie presumed to be owner in fee, is against his interest: thus affording the strongest reason for believing his declaration to be true (c). And on the same principle the entries in the books of a deceased collector of land-tax, stating the payment of a rate by the occupier of a particular house, have been admitted as evidence of his occupation at that time (d).

II. Having, then, (when necessary) established the

(a) Doe d. Strode v. Seaton, 2 Ad. & Ell. 171; 4 Nev. & M. 81.

(b) Doe d. Stansbury v. Ark wright, 2 Ad. & Ell. 182; 1 Nev. & M. 731.

(c) Carne and Nicoll, 1 Bing. N. C. 430; Holloway v. Raikes, 2 T. R. 55; Peaceable d. Uncle v. Watson, 4 Taunt. 16; 1 Cr. Mee. & R. 931. It cannot, however, be laid down as a ge

neral proposition, that " оссираtion" is primâ facie evidence of an ownership in fee. See Ch. II. Art. 1, p. 83, note.

(d) Doe d. Smith v. Cartwright, 1 Ry. & M. 62; 1 Car. & P. 218. On the subject of declarations and statements of deceased persons being evidence when made against their interest, see Phill. Ev. i. 255–259.

actual seisin of the ancestor, the next step is to SECTION 1. prove that he died intestate as to the property in question. If he died without having made any will, the letters of administration granted to his personal representatives will raise the presumption of his in

testacy and

testacy; or if he left a will, but without disposing of Evidence of inthe estate alleged to have descended, this must be death. produced, or proper evidence given of its contents, even although the possession has been conformable to the fact of intestacy. (Vide Chap. I. s. 2, Art. XV.) In practice, the probate or grant of letters of administration is usually accepted as sufficient proof of the testator's or intestate's death; and in peerage cases, where better evidence cannot be given, the grant of letters of administration has been received for that purpose (a). The Courts, however, generally require more direct evidence of death (b), unless from the circumstances of the case better proof cannot be given (c). The parish register of a person's burial, if sufficiently identified, affords, of course, the most conclusive evidence of his death.

III. Having proved the seisin, intestacy, and death Evidence of of the ancestor, the next thing is to establish the

heirship.

heirship of his descendant. If, e. g. the person alleged to be heir claim as the eldest son, his seniority Seniority. may be proved by an affidavit of some member of the

(a) Minutes of Evidence in the Banbury Peerage case, p. 120, and in the Killmorey case, p. 10. (Lincoln's Inn Library.)

(b) Thompson v. Donaldson, 3

Esp. 63; Clay on v. Gresham,
10 Ves. 289.

(c) French v. French, 1 Dick.

268.

SECTION 1. family; and to establish his legitimacy, it must be Legitimacy. shewn that he was born in lawful wedlock or in due time afterwards. (Vide Chap. I. s. 2, Art. XXIII.) For this purpose the conveyancer is generally satisfied with the evidence afforded by the register of the marriage Usual evidence of the parents, and of the baptism of the son. But

of heirship dis

pensed with

where estate de

scends with a peerage.

Parish registers.

where the estate has descended with a peerage, and

it appears from some authentic account that the heir took his seat in the House of Lords, the usual1 evidence of heirship is dispensed with; because the fact of heirship must have been first proved before the heir could take his seat among the peers.

IV. In substantiating a pedigree, it is important to bear in mind that parish registers prove only the time and place of marriage, the time and place of baptism, and the time and place of burial (a). If, therefore, the time or place of birth be recorded, that is not legal evidence of the fact, because to register it is not the duty of the minister (b). Parish registers are considered by the Courts in the light of records, and a verified copy is admissible in evidence (c). And the same rule appears to apply to

(a) In Doe d. Wollaston v. Barnes, 1 Mood. & Rob. 386, it was contended that an examined copy of the registry of a marriage was insufficient, except in matters of pedigree, to prove the time of such marriage; but Lord Denman overruled the objection. For an interesting historical account of Parochial Registration, see the

Report from the Select Committee, pp. 3-5.

(b) Wihen v. Law, 3 Stark. N. P. C. 63; Rex v. Clapham, 4 C. & P. 29; Rex v. North Petherton, 5 Barn. & Cr. 508; Burghart v. Angerstein, 6 C. & P. 690; Duins v. Donovan, 3 Hagg. 301.

(c) Birt v. Barlow, Dougl. 174.