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CHAPTER XIII.

OF THE TITLE TO THINGS REAL, IN GENERAL.

ed.

session.

The foregoing chapters having been principally employed in Title to defining the nature of things real, in describing the tenures by

things real. 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.

À title is thus defined by Sir Edward Coke,a titulus est justa Title defin 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 necessary to form a complete title to lands and tenements. We will consider them in a progressive order.

1. The lowest and most imperfect degree of title consists in I. Mere posthe mere naked possession, or actual occupation of the estate ; without any apparent right, or any shadow or pretense 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 disseizin, being a deprivation of that actual seizin, or Disseizin corporeal 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 after the death of a par- [196] ticular 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. In all which cases, and many others that might be here suggested, the wrong-doer 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. And, at all events, without such actual possession no title can be completely good.

a 1 Inst., 345.

(1) For more upon disseizin, see vol. iž., p. 167, et seq.

II. Right of II. The next step to a good and perfect title is the right of possession.

possession, which may reside in one man, while the actual possession is not in himself, but in another. For if a man be disseized, 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 disseizor, 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 disseizor, or other wrong-doer, dies possessed of the land whereof he so became seized 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 disseized ; and it shall not be lawful for the person disseized to devest this apparent right by mere entry or other act of his own, but only by an action at law ;bfor, until the contra

ry be proved by legal demonstration, the law will rather pre[197] sume the right to reside in the heir, whose ancestor died seized,

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 favored 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 seized, 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. Mere right of property.

III. The mere right of property, the jus proprietatis, without • Litt., 385.

c Gilb., Ten., 18.

(2) That is to say, a real action. Real ute, sect. 39. (Vide infra, vol. ii., , P. actions (with some few exceptions) hav. 174.) ing been abolished by the stat. 3 & 4 Will. IV., c. 74, this effect of a descent (3) As to this limitation of the time from a disseizor, called a descent cast, for recovering real property, vide infra, was also taken away by the same stat- p. 266, n.

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 divested, 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 favor of his antagonist, who has thereby obtained the absolute right of possession. As, in the first place, if a person disseized, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law; by this means the disseizor or his heirs gain the actual right of possession; for the law presumes that either he [198] 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 disseized, 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, primâ 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 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 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 seizin of the lands.“

Thus, if a disseizor 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 disseizor dies,

& Co. Litt., 345.

(4) This right of property, as distin- the abolition of those real actions in guished from the right of possession, bas which alone it could have been vindicabeen abolished in almost every case by ted. (Vide infra, vol. iii.. p. 179.)

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, with

out bringing any action to recover possession of the lands, the ( 199 ) son gains the actual right of possession, and I retain nothing

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 a third the right of property. For if tenant in tail infeoffs A. in fee-simple, and dies, and B. disseizes 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 afterward 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 hereditaments. junction of For it is an ancient maxim of the law, that no title is completepossession, ly good, unless the right of possession be joined with the right session, and of property ; which right is then denominated a double right, right of prop. 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,& juris et seisinæ conjunctio, then, and
then only, is the title completely legal.
e Mirr., 1. 2, c. 27.

i Co. Litt., 266. Bract., 1. 5, tr. 3, c. & L. 3, c. 15, $ 6.

5,0 2.

IV. Com

erty.

(5) That is to say, legal possession of owner, of his bailiff, or of his tenant at the freehold by the occupation of the sufferance, at will, or for years.

234

CHAPTER XIV.

OF TITLE BY DESCENT.

title to real

The several gradations and stages requisite to form a com- The modes of

losing, con plete title to lands, tenements, and hereditaments having been

tinuing, and briefly stated in the preceding chapter, we are next to consid- acquiring a er the several manners in which this complete title (and therein,

property. principally, the right of property) may be reciprocally lost and acquired; whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As, where the heir acquires by descent, Descent the ancestor has first lost or abandoned his estate by his death; where the lord gains land by escheat, the estate of the tenant Escheat. is first of all lost by the natural or legal extinction of all his hereditary blood; where a man gains an interest by occupancy, Occupancy. the former owner has previously relinquished his right of possession; where one man claims by prescription or immemorial Prescription. usage, another man has either parted with his right by an an cient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages; and so, in case of forfeiture, the tenant by his own misbehavior or Forfeitare. neglect has renounced his interest in the estate ; whereupon it devolves to that person who by law may take advantage of such default; and, in alienation by common assurances, the two Alienation. considerations of loss and acquisition are so interwoven, and so [ 201 ] constantly contemplated together, that we never hear of a conveyance without at once receiving the ideas as well of the grantor as the grantee.

The methods, therefore, of acquiring on the one hand, and These are of losing on the other, a title to estates in things real, are re- descent and duced by our law to two: descent, where the title is vested in purchase. a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.a?

a Co. Litt., 18.

(1) See, however, Mr. Hargrave's of title by prerogative, as where the note (Co, Litt., 18, b), where he distinc crown takes land conveyed to an alien, guishes (perhaps too astutely) a title by &c.; but purchase is generally underescheat both from a purchase and from stood to be any acquisition otherwise a descent. Upon similar reasoning, & than by descent. further division inight be made in favor “Purchase, in law, is used in contra

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