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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.t

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,

- Quoted, 34 Cal. 384; 3 Wood. & M. 550. Ref. 5 Litt. 282,

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 maxim 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


(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, 2 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. ?Cited, 60 Miss. 1054.

to be of much service to a beginner, but contain some valuable information.)

Blackstone, in this chapter, makes a complete title consist in several stages or degrees:

1. Naked possession by disseisor.

2. Right of possession—either (a) apparent, which may be defeated by showing a better; or (b) actual, which will stand the test against all opponents.

3. Right of property without possession or even the right of possession, jus merum.

4. The three united, juris et seisinæ conjunctio.

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Upon this Walker remarks: "Such refinements serve to perplex rather than inform the mind. The truth is, title means the same thing as ownership. A man may be in possession of a thing which he does not own, and he may own a thing of which he is not in possession. . . It would seem therefore that the perfection of title consists in the union of possession with the right of possession, for when these meet in the same person, he cannot be rightfully dispossessed. In other words, he is the lawful owner of the property, and that is the whole of the matter." (Walker's American Law, p. 317.)

Let us see, then: is not a tenant at will in possession of his room? Has he not a right of possession? Then, according to Walker, he is "the lawful owner of the property, and that is the whole of the matter!" But *Walker would say, "this is not the kind of possession we mean." How, then, about a monthly tenant who has paid his rent? "Oh, the law regards his possession as the possession of his landlord." Then, certainly, you have not given us the whole of the matter!

These attempts to treat the doctrines of law as mere subtleties, to be swept away by a little vigorous common sense, end in far worse perplexities than those attacked. The statements that seem so simple and satisfactory to a hasty reader, cover up more quibbles and

pitfalls than lurk in all the technicalities of seisin. No doubt our law has been much simplified since the time when" descent tolled entry," and separate actions lay for possession and property, and even since Blackstone's time; but, in fact, Blackstone's analysis of title is open rather to the criticism of not being full enough, than to that of "refinement." If it is worth while to study law as a science at all, this is the place to stop and ascertain in how many shapes a title may appear; and instead of Walker's contemptuous alternative, I think we cannot do less than distinguish ten cases:

1. The complete title with possession; droit-droit. 2. Right of property and of possession, but actual adverse possession.

3. Right of property, subject to right of possession .n another, either independent of owner, or by contract under him.

4. Right of property and of possession, but actual possession held at his will by another.

5. Right of possession (identical with property except that it is limited in time), and actual possession. 6. Right of possession, by contract with owner, and possession.

7. Possession with owner's consent, but without right. 8. Possession against owner's consent, and without right.

9. Right of possession (5 or 6) without actual possession.

10. Right to future possession.

Each of these cases is clearly distinguishable from all the rest by different rights and obligations of the party and we cannot say that we know the title to the land unless we can assign it to one of these classes and distinguish it from all the rest. (Of course, in all cases but 1, two or three of these states may co-exist in same land.) You will see that several of them are equivalent to and are treated in the books as estates.

Thus 3 is a reversion, 4 the landlord's estate in a tenancy at will, while 7 is the tenant's; 5 and 6 and 9 are particular estates, and 10 is a remainder. This illustrates the convertibility of the notions of estate and title. The rest of our classes, 1, 2, and 8, correspond almost exactly to Blackstone's degrees of title, omitting only the right of possession without property: which, under our law, must be an estate of some kind. In Blackstone's time it might be a mere wrongful holding, turned into a right of possession by the loss of possessory remedies against it, while the jus merum of the true owner still survived.

This could not happen nowadays, because the statute of limitations as to both possession and property is the same- or rather because we have no limitation and no remedy applying to a mere right of property. It is a very remarkable fact that there is no action at law now possible by which a mere right to property can be tried. The action of ejectment, and all the similar actions, whatever they may be called, only try the right to possession.

The only exception is the equitable action to quiet title, which by statute may be used to settle titles where neither party is in possession.

"Strange as it may appear, there is no action in the law of England by which the property either in goods or lands is alone decided." (Williams on Personal Property, *25.)

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