CHAP. XIII.

OF THE TITLE TO THINGS REAL IN GENERAL.

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 now come 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 the heir,

or after the death of a particular tenant and before the entry of him [196] in remainder of 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 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.

a 1 Inst. 345.

(1) In general a person in actual possession of real property cannot be ousted unless the party claiming can establish some well-founded title, for it is a general rule, governing in all actions of ejectment (the proper proceeding to recover possession of an estate), that the plaintiff must recover on the strength of his own title, and of course he cannot in general found his claim upon the insufficiency of the defendant's, 5 T. R. 110 n. 1. 1 East. 246. 11 East, 488. S M. & S. 516.; for possession gives the defendant a right against every person who cannot shew a sufficient title, and the party who would change the possession must therefore first establish a legal title; (id. ibid. 4 Burr. 2487. 2 T. R. 634. 7 TR. 47) and this rule it is said prevails even if a stranger, who has no colour of title, should evict a person who has been in possession short of twenty years, but who has not a strict legal title, 2 T. R. 749. 1 East, 246. 2 East, 469. 13 Ves. J. 119.; but according to Allan v. Rivington, 2 Saund. 111. a. and 6 Taunt. 548. n. a. prior occupancy is a sufficient title against a wrongdoer, but it is observed in a note to the first case, that this is contrary to the general use, and it is suggested that there is a mistake in terms. all events a person who is let into possession by a landlord, cannot after the expiration of the te

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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 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 devest this apparent right by mere entry or other act of his own, but only by an action at law: (b) for, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir, whose ancestor died seised, than in one [197] 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 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 of the owner is in such cases said to be totally devested, and put to a right. (d) 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: for the law presumes that either he had a good right origi- [198] nally, 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

b Litt. § 385.

c Gilb. Ten. 18.

d Co. Litt. $45.

nancy, put the plaintiff to prove his title in an action of ejectment, or dispute the same. 2 Bla. R. 1250. 7 T. R. 488. 4 M & S. 347.

Chitty

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 heirs, 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, 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 [199] 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 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 a 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 title to lands, tenements, and hereditaments. For it is an ancient maxim of the law, (e) 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. (f) And when to this double right the actual possession is also united, there is, according to the expression of Fleta, (g) juris et seisinae conjunctio, then, and then only, is the title completely legal.

e Mirr. l. 2. c. 27.

f Co. Litt. 266. Bract. 1. 5. tr.3, c. 5.

gl. S. c. 15, §5.

THE several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein 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, the ancestor has first lost or abandoned his estate by his death where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient 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 misbehaviour or 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 considerations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a con- [201] veyance, without at once receiving the ideas as well of the grantor as the grantee.

The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement. (a) 2

c Co. Litt. 18.

(1) See in general, Watkins on Descents; H. Chitty on Descents: Com. Dig. Descents; Bac. Ab. Descent; Cruise Dig. title xxix. 3 vol. 372 to 488. id. 6 vol. index, Descents; Wood. Vin. Lect. 2 vol. 250 to 265.; Rowe on Descents.

(2) Purchase in law is used in contradistinction to descent, and is any other mode of acquiring real property, viz. by a man's own act and agreement, by devise, and by every species of gift, or grant; and as the land taken by purchase has very different inheritable qualities from land ta ken by descent, the distinction is important. See post, page 241. 243

2

The principal distinctions between these modes of acquiring estates are these; 1. that by purchase, the estate acquires a new inheritable quality, and is rendered descendible to the blood in general of the person, to whom it is limited, as a feud of indefinite antiquity. 2. That an es tate acquired by purchase will not, like a title by descent, render the owner answerable for the acts of his ancestors. Cru. Dig. title xxx. s. 4. H. Chit. Desc. 4. Com. Dig. Descent, A. Bac. Ab. Descent, E.

It is a rule, that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent, 1 Co. 98. a. Moore, 140. H. Chit. Desc. 51.; but where a person takes an estate which never vested or attached, or might have vested or attached, in the ancestor, he shall take by purchase: as if a son buys an estate and takes a conveyance to him and his heirs; or if a remainder be limited by a stranger to the right heirs of A. who has no estate in the

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor : 3 and an estate, so descending to the heir, is in law called the inheritance.

The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heirs; this is a point that we must result back to the standing law of descents in fee-simple to be informed of.

[202] In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; 5 reserving that for the chapter of escheats. I shall also pass over the frequent division of descents into those by custom, statute, and common law : for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough-english, have already been often (b) hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already (c) copiously hand

b See Book I. pag. 74, 75. Book II. pag. 83. 85. e See pag. 112, &c.

premises, (for the remainder might otherwise have been attracted to the particular estate of A. under the rule in Shelley's case, 1 Co. 10.) this will be an estate by purchase, id. 4. The instances of persons taking by descent may be classed under the following heads: 1. Where an es tate devolves in a regular course of descent from father to son, or from any other ancestor to his heir at law. 2. Where the ancestor, by any gift or conveyance takes an estate of freehold, and in the same conveyance, an estate is limited, either mediately or immediately to his heirs in fee or in tail (the estates becoming both united in the ancestor under the rule in Shelley's case). 1 Coke, 93. 1 Preston, 263. 3. Where an ancestor devises his estate to his heir at law (the heir then taking by his preferable title, viz. by descent). 2 Saund. 8. note 4. 4. Where an ancestor by deed, or his will, limits a particular estate to a stranger, and either limits over the remainder (or more properly speaking the reversion) to his right heirs, or leaves the same undisposed of. See H. Chit. Desc. 5-10. See further as to when an heir takes by descent or purchase, post 241, and the notes. Chitty.

(3) Yet though the lands are cast on the heir by the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry is made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised. It is not therefore only a mere right to enter, but the actual entry that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina facit stipitem; what a sufficient entry and seisin and what not. Com. Dig. Descent, C. 8, 9, 10.; and see post, p. 312. 209. 227, 8. Chitty.

(4) Before the statute of wills, 32 Hen. VIII. c. 1. estates in fee were not devisable, but since that act so many questions upon the law of descent have not arisen; still, however, a distinct knowledge of this branch of law is of the greatest importance. (5) As to this subject, see also H. Chit. Desc. c. 2. p. 14–45.