Nature of a Title. 1 Inst. 345 b. 2 Comm. c. 13. Possession. Effect of an Tit. 1. § 24. be necessary to consider the title to real property, with the manner in which it may be acquired or lost. 2. A title is thus defined by Lord Coke, 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. But Sir W. Blackstone observes, that there are several stages or degrees requisite to form a complete title to lands and tenements. 3. The first degree of title is the bare possession, or actual occupation of the estate, without any apparent right, or any pretence of right, to hold and continue such possession. This may happen where one man disseises another; or where, after the death of the ancestor, and before the entry of the heir, a stranger abates, and holds out the heir. In these cases the disseisor or abator has only a mere naked possession, which the rightful owner may put an end to, by an entry on the land: but in the meantime, till some act is done by the rightful owner, to divest 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; at all events, without such actual possession, no title can be completely good. 4. The necessity of an entry by the heir, upon the death of the ancestor; or, where that is prevented, of a continual claim, has been already stated. In the case of a disseisin or ouster, there must also be an 1 Inst. 252 6. entry. And if there be two disseisors, the disseisee must make his entry on both; or if one disseisor has conveyed the lands with livery to two or three per sons, an entry must be made on each of them. But if the disseisor has let the lands to several persons for years, an entry on one of the lessees, in the name of the whole, will be sufficient to revest all. 5. The effect of an entry or claim is, to put the person who enters or claims, into the actual possession and seisin in deed of the lands. Thus Littleton says-" By such entry he shall have as good a posses- § 417, 418. sion and seisin of all the lands and tenements whereof he hath title of entry, as if he had entered in deed he says" presently by such claim he hath a posses- § 419. Possession. 6. The next step to a good and perfect title is the Right of right of possession, which may reside in one man, while the actual possession is in another. Thus in the case of a disseisin, abatement, or intrusion, the right of possession is in the disseisee or his heir, who may exert it whenever he thinks proper, by an entry; and the actual possession is in the disseisor, abator, or intruder. 7. In the case of an abatement or intrusion, the 1 Inst. 237 b. descent of the lands tolls the entry: for the law presumes that the possession which is transmitted from the ancestor to the heir, is rightful, until the contrary be shown. So that in general no person can recover possession by mere entry, on lands which another hath by descent. 8. It is however enacted, by the statute 32 Hen. VIII. c. 33., that the dying seised of any disseisor of or in any manors, &c. having no right or title therein, shall not be taken or deemed to be such descent in law for to toll or take away the entry of any persons, except that such disseisor hath had the peaceable possession of such manors, &c. whereof he shall so die seised, by the space of five years next after the disseisin, without entry or continual claim. But the feoffee of 1 Inst. 238 a. a donor, and abators and intruders, are out of this statute, because it is penal. 256 a. Lit. § 402. 9. Where a person who has a right of entry is under any legal disability, such as infancy, coverture, imprisonment, insanity, or absence from the realm; a descent will not take away the right of entry. 10. The 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. Gilb.Ten. 21. Thus where a person was disseised, the disseisor had only the naked possession, because the disseisee might enter, and evict him; but against all other persons the disseisor had a right, and in this respect only could be said to have the right of possession; for in respect of the disseisee, he had no right at all: when a descent was cast, the heir of the disseisor acquired the jus possessionis, because the disseisee could not enter upon his possession, and evict him; but was put to his real action. Lit. § 385. 1 Salk. 685. 11. Where the person who has the actual right of possession puts in his claim, and brings his action within the time prescribed by the statutes of limitaTit. 31. c. 2. tions, and can prove by what unlawful means the person in possession became seised; he will then, by judgement of law, recover that possession to which he had such actual right: but if he omits to bring his possessory action within the limited time, his adversary may imperceptibly gain an actual right of possession. 12. When this happens, the party kept out of pos- Right of session has nothing left in him but the mere right of Property. property, or jus proprietatis, without either possession or the right of possession; his estate is then said to be devested, and turned to a right. It is devested because the right owner is turned out of possession; it is turned to a right, because the right of possession, and consequently the right of entry is lost; and nothing is left but the jus merum, or mere right of property, which cannot be regained by a possessory, but only by a real action. ance of I Inst. 325 a. 13. Where the right of entry into lands is lost, and Discontinuthe person entitled can only recover by a real action, Estates. the possession is said to be discontinued. Thus Lord Coke says, a discontinuance of estate in lands or tenements is properly, in legal understanding, an alienation made or suffered by tenant in tail, or any that is seised in auter droit, whereby the issue in tail, or the heir or successor, or those in reversion or remainder, are driven to their action, and cannot enter. 14. The instances of discontinuance mentioned by Littleton, § 593, are, 1. Where an abbot aliened the lands whereof he was seised jure ecclesiæ; in which case his successor could not enter into them, although the right was in him, but was put to his action. 2. Where a man seised in right of his wife enfeoffed another and died; the wife could not enter, but was put to her action. 3. Where a tenant in tail of land enfeoffs another and has issue, and dies; the issue may not enter into the land, albeit he hath right and title to it, but is put to his action. 15. In consequence of this doctrine it has been long settled, that where a tenant in tail discontinues the estate tail, which he may do by feoffment or fine, § 6. Tit. 2. c. 2. What constitutes a complete Title. the person to whom the estate tail is transferred by these assurances, acquires the right of possession; and nothing remains in the issue in tail but the mere right of property. 16. The union of the possession, the right of possession, and the right of property, constitutes 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 is then de1 Inst. 266a. nominated a double right: and when to this double right the actual possession is also united; where there is, according to the expression of Fleta, juris et seisinæ conjunctio; then, and then only, is the title completely legal. Idem. Title by Remitter. § 659. 17. Lord Coke has thus stated the whole of this doctrine." It is to be known that there is jus proprietatis, a right of ownership; jus possessionis, a right of seisin or possession; and jus proprietatis et possessionis, a right both of property and possession. And this is anciently called jus duplicatum, or droit droit. For example, a man may be disseised of an acre of land, the disseisee hath jus proprietatis, the disseisor hath jus possessionis; and if the disseisee release to the disseisor, he hath jus proprietatis et possessionis. 18. Littleton says, where a man has two titles to lands, one a more ancient, and the other a later title, if he comes to the land by the later title, yet the law will adjudge him in by force of the elder title, because it is the most sure; and when a man is adjudged in by force of his elder title, this is said a remitter in him ; as if tenant in tail discontinues his estate, afterwards disseises the discontinuee, and so dies seised, whereby the tenements descend to his issue, or cousin inheritable by force of the entail; he is remitted to |