Sivut kuvina

(39) Seised per my et per tout, by the half or moiety, and by all, page 182.

This translation rests on the authority of Littleton and Lord Coke, but has been criticised by modern writers who no doubt are more familiar with the niceties of lawFrench than these authors or Blackstone. Mie or my unquestionably had both meanings, i. e., of a moiety, and of nothing. Littleton translated it better than Blackstone, per chescun parcel, which is not confined to the case of two tenants only, as "half" is.

Whether Bracton was translating this maxim in the passage quoted by our author in note k is doubtful. At all events, he is speaking there (fol. 430 a) of co-heirs, not of joint tenants or tenants by entirety. (See note of Serjeant Manning to Murray v. Hall, 7 Com. B. 455; 2 Minor's Institutes, 404.)


Whether an inheritance or a common freehold only, page 183.

It will be noticed that the peculiar incidents of joint tenancy must end with the last survivor of those first taking. Whether the inheritance be limited to his heirs or to those of all the joint tenants, they cannot well hold with all the requisite unities. Even if this may be considered theoretically possible under the rule of primogeniture, it would not be so by American law, dividing at each descent among all the heirs of the same degree. Practically the most careful limitation of the kind would be soon wrecked.

This may not be true, however, of the kind of joint tenancy now most common in the United States, in many of them the only kind, where the joint tenants take the estate not "in their own right," but for a particular purpose, such as a railroad mortgage or other trust. Here the ordinary rules of descent are overridden by the power of the courts of equity to substitute new trustees, and there is no reason why such a joint interest might not be continued thus for generation after generation, with continual survivorship among the trustees in each.



The foregoing chapters having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein, I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

*A title is thus defined by sir Edward Coke,a titulus est justa causa possidendi id quod nostrum est; or, † it is the means whereby the owner of lands hath the just possession of his property. [See note 41, page 321.]

There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprize turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed.? Or it may happen, that after the death of the ancestor and before the entry of the heir, or [196] after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out a 1 Inst. 345.

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Quoted, 53 Ala. 417; 34 Cal. 385; 94 Am. Dec. 737; 81 Va. 383, with parts of paragraphs ff.

- Quoted, 4 Ga. 604; 32 Cal. 194; 73 Ill. 458.

?Cited, 2 Conn. 11.

him that had a right to enter. 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, prima 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. 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 wrong-doer, 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 law8 Previously, "either in himself or."

+-+ Quoted, 4 Cowen, 602; 15 Am. Dec. 406; 52 Me. 452. Cited, 23 Ga. 210; 6 Tex. 292.

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Quoted, 23 I 189. Cited, 1 Blackf. 134.

-¿ Quoted, 2 Conn. 97; 52 Me, 542, Cited, 2 Conn, 106,

| Cited, 34 Mo. 419; 7 Ga, 391.

ful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law. For, until the contrary be proved by legal demonstration, the law will rather presume the right to [197] 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; 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.

III. The mere right of property, the jus proprietatis, 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 b Litt. 23385.3

3 Prior editions read "386."

c Gilb. Ten. 18.

8 Previously, "on."

*Cited, 14 N. J. L. 569; 3 Colo. 356,

† Cited, 29 Ga. 324.

d #

of the owner is in such cases said to be totally devested, and put to a right. 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: [198] for the law presumes that 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 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 possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by shewing the absolute right of property to reside in another person. The heir therefore in this case

d Co. Litt. 345.

8 Previously spelt "enquiring."
-* Quoted, 9 Cowen, 566; 34 Cal. 383.

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