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, Quoted, 23 Ill 189. Cited, 1 Blackf. 134. - Quoted, 2 Conn. 97; 52 Me, 542, Cited, 2 Conn. 106. I 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. 3385.3 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. 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 8 d Co. Litt. 345. 8 Previously spelt "enquiring." 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 possessory 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, he shall recover his seisin of the lands.† Thus, if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of possession and right of property. If the disseisor 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, without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain nothing [199] but the mere right of property. 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. So also if the father be tenant in 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 the third the right of property. For if tenant in tail enfeoffs 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 **Quoted, 50 N. H. 488. + Cited, 14 Me. 166; 18 Tex. 595; 39 Tex. 236; 14 Ala. 109. right of possession, and also the right of property.* In which union consists, IV. A complete title to lands, tenements, and hereditaments. For it is an antient maxin of the law, that no title is completely good, unless the right of possession be joined with the right of property;† which right is then denominated a double right, jus duplicatum, or droit droit. And when to this double right the actual possession is also united, when there is, according to the expression of Fleta,s juris et seisinæ conjunctio, then, and then only, is the title completely legal.2 NOTE OF THE AMERICAN EDITOR TO CHAPTER XIII. (41) Title is the means whereby the owner of lands hath the just possession of his property, page 195. Title in this definition implies possession held under it. There is another peculiar use of the word in the old books, not implying possession. "Title is where a lawful cause is come upon a man to have a thing which another hath, and he hath no action for the same; as title of mortmain or to enter for breach of condition." (Termes de la Ley, 370.) "The word 'title' includeth a right, but is the more general word. Every right is a title, though every title is not such a right for which an action lies." (Co. Litt. 345.) As to title in general, see 4 Kent, Lect. 65 (beginning); 3 Washburn, ch. 1, ? 1; 2 Hilliard, ch. 74; Hilliard on Vendors, ch. 12, 13; Williams on Real Property, pt. 5; Wharton, Tractate, iv. pp. 492-642. (The two latter are too much occupied with the technicalities of English conveyancing e Mirr. 1. 2. c. 27. f Co. Litt. 266. Bract. 1. 5. tr. 3. c. 5. g l. 3. c. 15. 2 5. 1 Addis. 15; 8 Leigh, 475. t-t Quoted, 19 Wend. 375. - Quoted, 3 Bibb, 59. Whole paragraph quoted, 81 Va. 383. |