have been or shall be had or suffered, shall be as valid and effectual in law, to all intents and purposes whatsoever, as if such lessee or lessees, or any other person or persons claiming under him, her, or them, had conveyed or joined in conveying, or shall convey or join in conveying, a good estate of freehold to such person or persons as has or have been, or shall become tenant or tenants to such writs of entry, or other writs whereupon such common recoveries have been or shall be suffered." join. 29. Although the above statute has made the sur- But Persons having a render of leases for lives unnecessary, yet it does prior Estate not extend to estates for life, prior to the estate of for Life must which a recovery is intended to be suffered; such estates must therefore still be surrendered to the: person against whom the writ of entry is brought; for this case is expressly excepted in the statute 14 Geo. II. c. 20., it being thereby provided, § 2, "That nothing in that act contained should extend or be construed to extend to make any common recoveries valid and effectual in law, unless the person or persons entitled to the first estate for life, or other greater estate, in case there was no such estate for life in being, in reversion or remainder, next after the expiration of such leases, has or have by some lawful act or means, conveyed or assured, or joined in conveying or assuring, or shall by some lawful act or means convey or assure, or join in conveying or assuring, an estate for life at the least to such person or persons as has or have been, or shall become tenant or tenants to the writ of entry, or other writs whereupon such common recoveries have been or shall be suffered." 30. The prior estate for life ought to be surrendered Pigot, 50. to the person who has the remainder or reversion, A Surrender is sometimes presumed. Green v. Froud, 1 Vent. 257. 1 Mod. 117. Gartside v. before he makes a tenant to the præcipe. But if the surrender is made after the execution of the deed, by which the lands are conveyed to the person who is to be tenant to the præcipe, it must then be made to him, otherwise it will be void; because the person who is to suffer the recovery has then no reversion in him for the surrender to operate upon. 31. Common recoveries having long been considered as common assurances of lands, and in the nature of conveyances by consent, the Judges have sometimes presumed, in consequence of particular circumstances, that the tenant for life had surrendered his estate, though no surrender was actually proved; and therefore, where the possession has accompanied a recovery for a long time, the Court will presume a surrender by the tenant for life. 32. In an ejectment upon a trial at bar for lands held in ancient demesne, a recovery in the court of ancient demesne was produced, which had been suffered a long time before, and the possession had gone accordingly. It appeared that part of the land was leased for life, and the recovery was by the person in reversion, so that there was no tenant to the præcipe. But the Court said, that as the possession had gone with the recovery for so long a time, they would presume a surrender; as in an appropriation of great antiquity, a licence has been presumed, although none appeared. 33. Where, after a recovery, the deeds were suppressed by the tenant for life, so that it could not be made out whether he had surrendered his estate for life to the tenant to the præcipe or not; it was decreed for the recovery, without allowing a trial at law; for where deeds are suppressed, omnia præsu muntur. 34. Where collateral evidence has been given of a surrender by a tenant for life, the recovery has been deemed good. dem. Webb 2 Stra, 1129. 35. Upon a trial at bar, the lessor of the plaintiff Warren ex claimed under an old entail in a family settlement, v. Grenville, and part of the estate appeared to be in jointure to a widow, at the time her son suffered a common recovery. The defendant who claimed title under the recovery not being able to show a surrender of the mother's life estate, it was insisted that there was no tenant to the præcipe, as to that part; so that the remainder, which the lessor of the plaintiff claimed, was not barred. To obviate this objection, it was insisted by the defendant, that after so long a time had elapsed, a surrender should be presumed, according to the doctrine laid down in the case of Green v. Froud; and to fortify this presumption, they offered to produce in evidence the debt book of Mr. Edwards, an attorney at Bristol, then a long time dead; wherein he had charged 321. for suffering the recovery, two articles of which charges were, for drawing a surrender of the mother's estate 20s. and for engrossing two parts thereof, 20s.; and that it appeared by the book that the bill had been paid. This being objected to as improper evidence, the Court were of opinion that it should be allowed; for it was a circumstance material upon the inquiry into the unreasonableness of presuming a surrender of the widow's life estate, and could not be suspected of having been done for this purpose. If Edwards had been living, he might undoubtedly have been examined; and after his death, this was the next best evidence, and it was accordingly read: after which the Court declared, that without this circumstance they would have presumed a surrender, and desired it might be Ꮓ Ꮞ Goodtitle ex dem. Bridges v. the Duke of Chandos, 2 Burr. 1056. taken notice of, that they did not require any evidence to fortify the presumption after such a length of time. 36. But where there is no reason or ground to found a presumption, that the tenant for life had surrendered his life estate, and where the possession has not gone with the recovery, the Court will not presume that such a surrender was made. 37. G. R. Bridges being tenant in tail of a considerable estate, whereof he was in possession of some part, the remainder being held by a widow, on whom it had been settled for life, for her jointure, and who was then in possession of it, suffered a common recovery of the whole estate tail, using such descriptions as were sufficient to include the whole estate tail, and then settled it on the Duke of Chandos. Upon the death of G. R. Bridges, the Duke of Chandos entered into possession of all the estate, except the part of which the widow was in possession, and upon her death he took possession of that part also. An ejectment was brought against the Duke of Chandos by James Bridges the reversioner, for that part of the estate tail whereof the widow was in possession at the time when the recovery was suffered; upon the ground that there was no surrender of the widow's life estate. The duke of Chandos being unable to give any sort of evidence of an actual surrender, his counsel insisted at the trial that a surrender of the widow's life estate ought to be presumed after so long a time, even though they should not give any evidence whatsoever of such a surrender : but Mr. Justice Noel, who tried the cause, was of opinion that a surrender of the tenant for life could not be presumed when no sort of evidence had. been given to make such a fact in the least probable; and when the possession had not gone with the re covery, but had continued in the tenant for life until the time of bringing the ejectment; and accordingly he directed the jury to find for the plaintiff. Upon this direction a motion was made for a new trial. The defendant's counsel relied on the cases of Green v. Froud, and Warren ex dem. Webb v. Grenville, mentioned in the preceding pages. On the other side it was argued for the plaintiff, that there could be no presumption without some facts to ground it upon. In the case of Mr. Grenville, there was a very strong presumption arising from the articles in the attorney's bill; the proof whereof the Court allowed to be entered into, and received satisfaction from it: and that there was no case where a presumption of a sursender had been raised, without possession accompanying and following the recovery. In the case of Froud v. Green, upon which Mr. Grenville's case was said to be grounded, there was a possession which had followed the recovery for a long time, and that was the very reason there given for the Court's forming the presumption which they then made. That the rule in all the cases cited, and in all cases of this kind, must in reason and common sense necessarily be understood to relate to the length of time which has elapsed since the tenant in tail's coming into possession, and not to the length of time since the suffering of the recovery. The outstanding life estate, during the life of the widow, forms the strongest presumption that she did not surrender the estate; besides, it did not at all appear from the Judge's report that G. R. Bridges, the tenant in tail in possession of all the rest of the estate, and of which he had power to suffer a recovery, ever meant or intended to suffer a recovery of these settled lands, which he had no power to do; he had |