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OF THE TITLE TO THINGS REAL, IN
Of the title to things real.
Definition of " title."
Of the requisites to form a complete title.
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.
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 surprise 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
I. The naked possession, or actual occupation of the estate.
(a) 1 Inst. 345.
the heir, or 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 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, 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 (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 II. The right of of possession, which may reside in one man, while the ac
possession. tual 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
person disseised to divest this apparent right by mere entry or
(1) See ante, note (22) to the last chapter.
other act of his own, but only by an action at law (6): 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. III. The right III. The mere right of property, the jus proprietatis, of property.
without either possession or even the right of
(6) Litt. s. 385.
(c) Gilb. Ten, 18.
(4) Co. Litt. 345.
tained 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 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 primá 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 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, The possession, he thereby gains a mere naked possession, and I still retain the right of pos
session, and the the right of possession, and right of property. If the dis- right of property,
may each be in a seisor dies, and the lands descend to his son, the son gains different person, 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 [ * 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. 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 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 IV. A complete title to lands, tenements, and hereditalegal title exists where the right
ments. For it is an antient maxim of the law (e), that no of possession is 'title is completely good, unless the right of possession be joined with the right of pro
joined with the right of property; which right is then denoperty. minated 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 (g), juris et seisina conjunctio, then, and then only, is the title completely legal.
(e) Mirr. I. 2, c. 27.
(f) Co. Litt. 266. Bract. 1. 5, tr. 3, c. 5. (8) 1. 3, c. 15, s. 5.