CHAPTER THE FIFTEENTH. [195] OF THE TITLE TO REAL PROPERTY IN GENERAL. The title to things real. 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. Definition of A title is thus defined by Sir Edward Coke," titulus est a title. The lowest title is naked Disseisin : what it is. 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. 1. The lowest and most imperfect degree of title conpossession. sists 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 [196] entry of 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. 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 a 1 Inst. 345. remedies. 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. possession. II. The next step to a good and perfect title is the right The right of 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 the 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 was not 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. For, until the contrary was proved by legal demonstration, the law would 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 feudal 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 feudal 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 feudal court. But if he, who has b See Private Wrongs, passim. d Gilb. Ten. 18. c Litt. s. 385. property. 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. And it has very recently been enacted that no descent cast or discontinuance which shall have happened after the 31st day of December, 1833, shall defeat any right of entry for the recovery of land. Yet if he who has the actual right of possession omits to bring his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the others' 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. The rights of 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. 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 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 enquiring into the absolute right of property. Yet, still, if the person disscised 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 [ 198 ] in tail discontinued his estate-tail, by alienating the lands to a stranger in fee, and died; there the issue in tail had by the common law no right of possession, independent of the right of property: for the law presumed 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 had transferred the same to a stranger, the law would 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 that case had only a mere right, and was strictly held to the proof of it, in order to recover the lands. But the right of entry, as we have seen, will not now be taken away by the discontinuance of the tenant in tail. Lastly, if by accident, neglect, or otherwise, judgment was 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 had indeed in himself the right of property, that was then turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he should recover his seisin of the lands. But a writ of right is now abolished by the 3 & 4 Will. IV. c. 27, s. 36, and by the same act, (s. 2,) one period of limitation is established for all lands and rents, it being enacted that after the 31st of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. Persons under the disabilities of infancy, lunacy, coverture, or beyond seas, and their representatives, are allowed ten years from the termination of their disability or death (s. 16); but no entry, action, or distress, shall be brought beyond forty years after the right of action accrued (s. 17). 5 See ante, p. 234. Thus, if a disseissor 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 before the act referred to came into operation, I acquiesced for thirty years, without bringing any action to recover possession of the lands, the son gained the actual right of possession, and I retained nothing but the mere right of [199] property. And even this right of property would fail, or at least it would be without a remedy, unless I pursued it within the space of sixty years; and now of twenty, or it may be forty years. So also if the father before the 31st of December, 1833, were tenant in tail, and aliened the estate-tail to a stranger in fee, the alienee thereby gained the right of possession, and the son had only the mere right, or right of property. And hence it followed that one man might have the possession, another the right of possession, and a third the right of property. For if tenant in tail infeoffed A. in fee-simple, and died, and B. disseised A.; B. had the possession, A. the right of possession, and the issue in tail the right of property: A. might recover the possession against B.; and afterwards the issue in tail might 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, 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, juris et seisinæ conjunctio, then, and then only, is the title completely legal. It should be observed that throughout this chapter the actual possession of the lands, means either the personal possession of the tenant, or that of his tenant for years or at will. |