Nepean v Doe d Knight
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1837 |
| Date | 01 January 1837 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1021
IN THE EXCHEQUER CHAMBER.
S. C. M. & H. 291; 7 L. J. Ex. 335. See Doe d. Knight v. Nepean, 1833, 5 B. & Ad. 86; 110 E. R. 724 (with note).
in the exchequer chamber. (In Error.) slr molyneux hyde nepean, bart. v. doe d. knight. Exch. of Pleas. 1837. -When a party has been absent seven years without having been heard of, the presumption of law then arises that he is dead ; but there is no legal presumption as to the time of his death.-By the statute 3 and 4 Will. 4, c. 27, as. 2, 3, the doctrine of non-adverse possession is done away with, except in the cases provided for by s. 15; and an ejectment must be brought within twenty years after the original right of entry of the plaintiff (or of the party under whom he claims) accrued, whatever be the nature of the defendant's possession. [S. C. M. & H. 21)1 ; 7 L. J. Ex. 335. See Doe d. Knight v. Nepean, 1833, 5 B. & Ad. 86 110 E. R. 724 (with note).] This was an ejectment, commenced in Hilary Term, 1834, to recover possession of copyhold premises in the parish of Loders, in the county of Dorset, (being the same premises claimed in the cause of dok d. Knight v. Nepean (5 B. & Ad. 86; S. C. nomine Doe d, Made v. Neyean, 2 Nev. & M. 219), and was tried before Patteson, J., at the Dorset-[895]-shire Spring Assizes, 1835, when the following evidence was given on the part of the plaintiff: - 2d January, 1788.-At a, Court held this day for the manor of Loders, Matthew 102? NEPEAN V. DOE 2M. aw.896, Knight took of the lord certain copyhold tenements called the Roofless Living and Home Living, (being part of the premises in question in this cause), to hold to him the said Matthew Knight and Edward Knight (his brother), and Elizabeth Mary Da vies, for their lives, and for the life of the longest liver of them, successively. 16th October, 1794. At a Court held this day, the said Matthew Knight took of tie lord a certain copyhold tenement called Mabys Hay, (being other part of the premises in question), to hold to him the said Matthew Knight and Rice Davies Knight his son, for their lives, and the life of the longest liver of them, successively, in reversion immediately after the determination of the estate of Henry Budden therein. 20th March, 1797. At a Court held this day, George Bagster and Nathaniel Taylor, as assignees of the said Matthew Knight, a bankrupt, were admitted tenants to the said 'tenements called Roofless Living, Home Living, and Mabys Hay, except out of the latter as to one close called Sheep Acres, to which they were admitted tenants in reversion of the said Henry Budden. At the same Court George Knight took of the lord the reversion of the said tenements called Roofless Living and Home Living, to hold to Paul Slade Knight (the lessor of the plaintiff) and Thomas Clothier Knight, sons of the said George Knight, for their lives, and the life of the longest liver of them, successively, after the determination of the estate and interest which the said George Knight claimed to have for the life of the said Matthew Knight his brother. And at the same Court, there was entered a letter of attorney, dated 13th March, 1797, whereby the said [896] George Bagster and Nathaniel Taylor appointed Richard Travers their attorney, to take admittance of the said tenements called Roofless Living, Home laving, and Mabys Hay, together with the said close called Sheep Acres, and to surrender the same to the use of the said George Knight, his executors, administrators, and assigns, for the life of the said Matthew Knight. In August, 1806, Thomas Clothier Knight died. In December in the same year, or early in 1807, Matthew Knight went to America; and in the month of May 1807, a letter was received from him, but he was never heard of afterwards. Matthew Knight was in possession of the premises in question for the three years preceding his bankruptcy, which happened in 1797 ; and after that event George Knight entered into possession of the same premises as the purchaser of Matthew Knight's interest, and continued in such possession till his death; but he was never actually admitted tenant to the lord. On the 1st of August, 1807, George Knight executed an indenture of mortgage to the isaid Richard Travers, of all the said premises, for the term of seventy years if the said Matthew Knight should so long live, for securing the payment of two several sums of 8381. and 3751. Soon after the date of this mortgage, all the premises were solcj to Sir Evan Nepean, the father of the defendant in this action (the plaintiff in errcjr), but the purchaser was never admitted tenant to the lord; and if any formal conveyance was executed, it had been lost. On the 12th December, 1807, George Knight died. On the 6th April, 1808, Sir Evan Nepean granted a lease of the premises to the said .Richard Travers for the term of fourteen years from this date, and Travers unclerlet the premises to George Way, who occupied them from the death of the said George Knight in 1807, to the death of Travers in 1813. Shortly after Traver's death, the pre-[897]-mises were surrendered by his executors to Sir Evan Nepean, who continued in possession thereof by himself or his tenants, from thence until his death in 1822 : and from that time to the present the defendant, Sir Molyneux Nepeau, has I been in th$ possession thereof. Upon these facts, two questions were raised at the trial: first, whether it was incumbent on the lessor of the plaintiff to prove that the said Matthew Knight was actually alive: within twenty years next before the commencement of the action; secondly, whether it appeared upon the evidence that there had been an adverse possession of the premises against the lessor of the plaintiff', for twenty years before the; action brought. The learned judge stated his opinion to the jury as to the first point, that it was incumbent on the lessor of the plaintiff to prove that Matthew Knight was actually alive within twenty years, and that he had not proved it; and as to the second point, that if Sir EvairNepean took as purchaser of the interest of GeOrge Knight, then his possession had not been adverse for twenty years, because it HM. &W.S98. NEPEAN V. DOE 1023 could not be adverse so long as it was uncertain whether Matthew Knight was alive or dead, which it was up to May 1814. The jury found that Matthew Knight was not proved to have been actually alive within twenty years next before the commencement of the action, but that it did not appear by the evidence that there had been an adverse possession of twenty years as against the lessor of the plaintiff; and the verdict waa thereupon entered for the plaintiff'. The lessor of the plaintiff excepted to the opinion of the learned Judge on the first point, and the defendant to his opinion on the second point, and cross bills of exceptions were tendered and sealed accordingly, and writs of error sued out thereon. The case was argued in last Michaelmas Vacation by Sir W. W. Follett, for the plaintiff in error. The lessor of the plaintiff, in order to sustain the action, was [898] bound to prove both his right of property in the premises and his right of entry. To make out these, it became incumbent on him to shew-first, that Matthew Knight was dead ; and secondly, that the title fell on him in remainder within twenty years before the commencement of the action: therefore he was bound to prove the death of Matthew Knight within twenty years before action brought. It was contended for the lessor of the plaintiff, that, by analogy to the statute against bigamy, 1 Jac. 1, c. 11, s. 2, and the statute 19 Car. 2, c. 6, as to estates pur autre vie, the presumption of the death of Matthew Knight did not arise until the expiration of seven years after he was last heard of : in other words, that he must be presumed to have lived to the end of those aeven years. This is in effect, as to this point, a writ of error from the judgment of the Court of King's Bench (5 B. & Ad. 93 ; 2 Nov. & M. 225), which decided that there was no legal presumption at all as to the time of his death. It is not necessary, therefore, to refer again to the authorities cited on that occasion; but a case has been since decided, in which the same doctrine was re-stated. In Bex v. Inhabitants of Harbome (2 Ad. & E. 540; 4 Nev. & M. 341), on an...
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