Sivut kuvina
[ocr errors]

II. The right of possession.

him that had a right to enter (1). In all which cases, and many others that might be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, primâ facie, evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title (2). And, at all events, without such actual possession no title can be completely good.

II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself but in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts: an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Thus, if the disseisor, or other wrongdoer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now by the common law the heir hath obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the

son disseised to devest this apparent right by mere entry (3) or other act of his own, but only by an action at law (b): for,

until the contrary be proved by legal demonstration, the [ * 197 ] law will rather presume the right to *reside in the heir,

whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of descent; in order that there might be a person always upon the spot to perform the feodal duties and services (c): and therefore when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of possession, puts in his claim, and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right. Yet, if he omits to bring this his possessory action, within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other's negligence. And by this, and certain other means, the party kept out of possession may have nothing left in him, but what we are next to speak of; viz.

(6) Litt. s. 385.

(1) See ante, p. 194, note.
(2) See the note last referred to.
(3) But now, no descent or discon-

tinuance bars the right of entry. See
stat. 3 & 4 Gul. IV. c. 27, s. 39.

III. The mere right of property, the jus proprietatis, III. The right of without either possession or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum ; and the estate of the owner is in such cases said to be totally devested, and put to a right (d). A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist; who has thereby obtained the absolute right of possession. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law: by this means the disseisor or his heirs gain the actual right of possession : *for the law presumes that [ * 198 ] either he had a good right originally, in virtue of which he entered on the lands in question, or that since such his entry he has procured a sufficient title; and, therefore, after so long an acquiescence, the law will not suffer his possession to be disturbed without inquiring into the absolute



[ocr errors]

(c) Gilb. Ten. 18.

(d) Co. Litt. 345.

[ocr errors]

right of property. Yet, still, if the person disseised or his
heir hath the true right of property remaining in himself,
his estate is indeed said to be turned into a mere right:
but, by proving such his better right, he may at length
recover the lands. Again, if a tenant in tail discontinues
his estate-tail, by alienating the lands to a stranger in fee,
and dies; here the issue in tail hath no right of possession,
independent of the right of property : for the law presumes
prima facie that the ancestor would not disinherit, or attempt
to disinherit, his heir, unless he had power so to do; and
therefore, as the ancestor had in himself the right of posses-
sion, and has transferred the same to a stranger, the law
will not permit that possession now to be disturbed (4),
unless by showing the absolute right of property to reside
in another person. The heir therefore in this case has only
a mere right, and must be strictly held to the proof of it, in
order to recover the lands. Lastly, if by accident, neglect,
or otherwise, judgment is given for either party in any pos-
sessory action, (that is, such wherein the right of possession
only, and not that of property, is contested,) and the other
party hath indeed in himself the right of property, this is
now turned to a mere right; and upon proof thereof in a
subsequent action, denominated a writ of right (5), he shall

recover his seisin of the lands. The possession,

Thus, if a disseisor turns me out of possession of my lands, session, and the he thereby gains a mere naked possession, and I still retain

of property,
may each be in a the right of possession, and right of property. If the dis-

seisor dies, and the lands descend to his son, the son gains
an apparent right of possession ; but I still retain the actual
right both of possession and property. If I acquiesce for
thirty years (6), without bringing any action to recover

possession of the lands, the son gains the actual right of [ *199 ] possession, and I retain * nothing but the mere right of pro

perty. And even this right of property will fail, or at least
it will be without a remedy, unless I pursue it within the
space of sixty years (7). So also if the father be tenant in


the right of


see the stat. of 3 & 4 Gul. IV. c. 27,

s. 2.

(4) But see the statute cited in the note to p. 196.

(5) Abolished by stat. 3 & 4 Gul. IV. c. 27, s. 36.

(6) The term is now twenty years ;

(7) Unless the claimant comes within some of the savings of the act cited in the last note, at the end of

tail, and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath only the mere right or right of property. And hence it will follow, that one man may have the possession, another the right of possession, and a third the right of property. For if tenant in tail infeoffs A. in fee-simple, and dies, and B. disseises A.; now B. will have the possession, A. the right of possession, and the issue in tail the right of property. A. may recover the possession against B.; and afterwards the issue in tail may evict A., and unite in himself the possession, the right of possession, and also the right of property. In which union consists,

IV. A complete .title to lands, tenements, and heredita- IV. A complete ments. For it is an ancient maxim of the law (e), that no where the right title is completely good, unless the right of possession be joined with the joined with the right of property; which right is then deno, perty. minated a double right, jus duplicatum, or droit droit (f). And when to this double right the actual possession is also united; when there is, according to the expression of Fleta (9), juris et seisinæ conjunctio, then, and then only, is the title completely legal.

of possession is

of pro

(e) Mirr. 1. 2, c. 27.

($) Co. Litt. 266 ; Bract. 1. 5, tr. 3, c. 5. (9) L. 3, c. 15, 8. 5.

twenty years after the right to land remedy but the right is extinguished, or rent first accrued, not only the by the 34th section of the statute.




Of the modes of acquiring

The several gradations and stages, requisite to form a comand losing title ; plete title to lands, tenements, and hereditaments, having

been briefly stated in the preceding chapter, we are next
to consider the several manners in which this complete title
(and therein principally the right of propriety,) may be
reciprocally lost and acquired : whereby the dominion of

(1) The statute of 3 & 4 Gul. IV. ral persons claiming through him ; c. 106, for the amendment of the law the male line to be preferred throughof inheritance, enacts, that in every out in tracing descents; but, in case case descent shall be traced from the of the failure of male paternal ancespurchaser, but the last owner shall be tors of the person from whom the deconsidered to be the purchaser, unless scent is to be traced upwards, and of it shall be proved that he inherited their descendants, the mother of his the land. It is also enacted, that an more remote male paternal ancestor, heir who is entitled under a will shall or her descendants, shall be the heir take as devisee, and not by descent; or heirs of such person, in preference and a limitation in any assurance to to a less remote paternal ancestor ; the grantor and his heirs shall create and the mother of his more remote an estate by purchase : but if any male maternal ancestor, and her deperson acquires land by purchase, scendants, shall be heir or heirs, in under a limitation to the heirs, or the preference to the mother of a less reheirs of the body, of any of his ances- mote male maternal ancestor. And tors, such land shall descend, and the it is further enacted, that any person descent shall be traced as if the an- related to the person from whom the cestor named in such limitation had descent is to be traced by the half been the purchaser of the land. It is blood shall be capable of being his further enacted, that no brother or heir, and shall stand next in order of sister shall be considered to inherit inheritance after any relation of the immediately from his or her brother same degree of the whole blood, and or sister, but shall trace descent his issue, where the common ancestor through their common parent; and shall be a male, and next after the every lineal ancestor may be heir to any common ancestor where such comof his issue, in preference to collate- mon ancestor shall be a female: and

[ocr errors]
« EdellinenJatka »