CHAP. XXIX. OF THE TITLE TO THINGS REAL BY DESCENT.(A} RIGHT, jus, sive rectum (which Littleton often useth), signifieth properly, and specially in writs and pleadings, when an estate is turned to a right, as by discontinuance, disseisin, (A) The foregoing chapters of this book having been principally employed in defining the nature of real property, in describing the tenures by which it may be held, and in distinguishing the several kinds of estates that may be had therein; we now come to consider the title to real property, with the manner in which it may be acquired or lost. 345 a. Definition of a right, (Plo. 484.) According to Lord Coke's definition, titulus est justa causa possidendi id quod nostrum est; a title is the means whereby the owner of lands has the just possession of his property. 345 b. infra, But Sir William Blackstone observes, there are several stages or degrees requisite to form a complete title to lands and tenements. 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 when 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 be done by the rightful owner to devest this possession, and assert his title, such actual possession is primâ facie evidence of the legal title in the possessor; and it may, by length of time, and negligence of him who has 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. 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 in another. Thus, in the case of a disseisin or abatement, the right of possession is in the disseisee or heir, who may exert it, whenever he thinks proper, by an entry. And the actual possession is in the disseisor or abator. But this right of pos session 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 wrong-doer 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 has 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; 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 who has no such presumptive evidence to urge in his favour. 2 Bl. Com. 195-7. Gilb. Ten. 21. But if he, who has the actual right of possession, pats 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 has 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. And by this, the party kept out of possession may have nothing left in him, but the mere right of property, or jus proprietatis, without either possession or even the right of possession; and his estate is said to be devested and turned to a right. Bl. Com. 197. It is devested be cause the rightful owner is turned out of possession; and it is turned to a right, because the right of possession, and consequently the right of entry, is lost, and nothing left but the jus merum, or mere right of property, which cannot be regained by a possessory, but only by a real &c. where it shall be said, quòd jus descendit et non terra (B), But Right doth also include the *estate in esse in convey◄ ances; and therefore if tenant in fee-simple make a lease for years, and release all his right in the land to the lessee and his heirs, the whole estate in fee-simple passeth. And so commonly in fines, the right of the land include th and passeth the state of the land; as A. cognovit tenementa prædicta esse jus ipsius B. &c. and the statute (a) saith, jus suum defendere, which is statum suum. And note that there is jus recuperandi, jus intrandi, jus habendi, jus retinendi, jus percipiendi, jus possidendi. Title, properly, (as some say) is, when a man hath a lawful cause of entry into lands whereof another is seised, for the which he can have no action; as title of condition, title of mortmain, &c. But legally this word (Title), includeth a right also, as you shall perceive in many places in Littleton; and title is the more general word; for every right is a title, action. 3 Cru. Dig. 370. 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 L acquiesce for thirty years, without bringing any action to recover pos session 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 discontinues his estate-tail by alienating the lands to a stranger in fee, the alienee thereby gains the right of possession, and the son has 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 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 right of possession, and also the right of property. In which union consists 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 he joined with the right of property, which right is then denominated a double right, jus auplicatum or droit droit. Infra, 266 a. And when to this double right the actual possession is also united, when there is, according to the expres sion of Fleta, juris et seisina conjunctio, then and then only is the title completely legal. 2 Bl. Com. 299. Infra, 266 a.-[ Ed.] (B) A right is not grantable over, Lampert's case, 10 Co. 46 b.; neither can it be surrendered, post, 558 a.; nor will it pass to a stranger by fine, Sheph. Touch. 14. Buckler's case, 2 Co. 55, 56; though by such fine the right would be barred, as the cognizor cannot claim a right against his own fine, which is a matter of record, and by consequence an estoppel; as by that fine he has acknowledged the right to be in another. A right also is not devisable; but it may be extinguished; and the proper mode of extinguishment, is that of a release, or fine sur cognizance de droit tantum, to the person in actual possession of the lands. Watk, Convey. 64, 65.-[Ed.] but every title is not such a right for which an action lieth; and therefore Titulus est justa causa possidendi quod nostrum est, and signifieth the means whereby a man cometh to land, as his title is by fine, or by feoffment, &c. And when the plaintiff in assise maketh himself a title, the tenant may say, Veniat assisa super titulum; which is as much to say, as 6 H. 7. 8 a. Altham's upon the title which the plaintiff hath made by that particular case, ubi supra. Conveyance. Et dicitur titulas à tuendo, because by it he holdeth and defendeth his land; and as by a release of a right a title is released, so by release of a title a right is released also. See more hereof in Fitzherbert and Brookes' Abridg ments, in the title of Title, and interest. Pl. Com. fol. 374. in 448, in Nichol's case, An interest, Interesse, is vulgarly taken for a term or chattel real, and more particularly for a future term; in which case it is said in pleading, that he is possessed de interesse ter- case; and fol. 487 & mini. But er vi termini, in legal understanding, it extendeth to estates, rights, and titles, that a man hath, of, in, to, or out of lands; for he is truly said to have an interest in them: and by the grant of totum interesse suum in such lands, as well reversions as possessions in fee-simple shall pass. And all these words singularly spoken are nomine collectiva; for by the grant of totum statum suum in lands, all his estates therein pass. Et sic de cæteris. Tenant for life, the remainder in tail, the remainder to the right heirs of tenant for life, tenant for life grant totum ștatum suum to a man and his heirs, both estates do pass. or of 23 H. 8. Taile Br. 32, 35 H. 8. Grant. Br. 150. Vid. 16 EL 266 a. tinguished. Mirror, cap. 2. s. 17. Bract. lib 2. fol. 32. Bract. lib. 5. fol. 372. Union of right of property and right of possession, a complete Britton, fol. 89. 121. For the better transferring of naked rights to lands Right of property and tenements, either by release, feoffment, or otherwise, it right of possession disis to be known, that there is jus proprietatis, a right 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, if a man be disseised of an acre of land, the disseisee hath jus proprietatis, the disseisor hath jus possessionis (c); and if the disseisee release to the disseisor, he hath jus proprietatis et possessionis. (C) This must be intended as against strangers only; for, notwithstanding the disseisin, the right of possession, we have seen, remains in the dis seisee, Ante, n. (A), p. 154.-[Ed.] title. 13 b. Of descent, (Post, 237.) 237 a. Nature of descent. Mirr. cap. 2. sect. 5. Descent (D), descensus, cometh of the Latin word descendo; and, in the legal sense, it signifieth, when lands do by right of blood fall unto any after the death of his ancestors: or a descent is a means whereby one doth derive him title to certain lands, as heir to some of his ancestors, And of this, and of that which hath been spoken, doth arise another division of estates in fee-simple, viz. every man, that hath a lawful estate in fee simple, hath it either by descent, or by purchase. "Descents." This word cometh of the Latin word discendere, id est, ex loco superiore in inferiorem movere; and in legal understanding it is taken when land, &c. after the death of the ancestor is cast by course of law upon the heir, which (Sid 198. Ante, 13 b. the law calleth a descent. And this is the noblest and worAnte, 163.) & 434. Brit. fo. 115. 215. Vid. sect. 5. #237 b. thiest means whereby lands are derived from one to another, because it is wrought and vested by the act of law, and right of blood, unto the worthiest and next of the blood and kindred of the ancestor; and therefore it hath not in the common law altogether the same signification that it hath in the civil law; for the civilians call him, hæredem, qui ex tesHow it differs from de- tamento succedit in universum jus testatoris (E). But by the common law he is only heir which succeedeth by right of seat in the civil law. (D) The methods of acquiring a title to real property, according to the usual, though not strictly accurate, mode of division, are two only; by descent and purchase. 2 Bl. Com.201. 244, 5. Watk. Desc. c. 1. Post, 18 b. n. (2), (106). The former is where the title is vested in a person by the single operation of law; the latter, where the title is vested by the person's own act and agreement. Post, 18 a, b. Descent, or hereditary succession, is the title whereby a man, on the death of his ancestor, acquires his estate, as his heir at law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor; and an estate so descending on the heir is called the inheritance.-[Ed.} (E) By the civil law, the heir is defined to be, he who is universal successor to all the goods, and all the rights of the deceased, and who is bound to acquit all the charges and burdens of the said goods. 1 Domat. b. 1. t. 1. s. 1. p. 558. And this definition embraced the two sorts of heirs known to that law, viz. those who were instituted, or named by a testament, called testamentary heirs; and those to whom the law gave the inheritance on account of their proximity in blood, who were called, for that reason, heirs at law. And the latter were also called heirs to intestates, because they succeeded, if they were not excluded by a testament. Ibid. But the law of England makes a distinction between these two sorts of heirs, and gives them different names. For the heir, in the legal understanding of the common law, is he to whom lands, tenements, or hereditaments, by the act of God, and right of blood, do descend of some estate of inheritance. And by the common law a man cannot be heir to goods or chattels. For, as to these, the person who succeeds to them is called in the law, executor, if he succeeds by the appointment of the deceased in his last will and testament; or administrator, if he succeeds by the ap pointment of the ordinary, in the case of one dying intestate. Post, 7 b. Terms of the law verb, Executor, and Administrator.—[Ed.] blood. And this agreeth well with the etymology of the word (heir) to whom the lands descend, for hæres dicitur ab hærendo, quia qui hærès est hæret, hoc est, proximus est sanguine illi cujus est hæres. So as he that is hæres, sanguinis est hæres, et heres hæreditatis. And the learning of degrees (b) set out in the civil and cauon law (F) (wherein I find some difference) is worth the knowledge, to the end that Littleton and the law may the better be understood, which I will divide into certain rules; whereof the first is, That a person added to a person in the line of consanguinity maketh a degree. And it is to be understood, that a line is threefold, viz. the line ascending, descending, and collateral. And first, for example, of the ascending line, take the son and add the father, and it is one degree ascending; add the grandfather to the father, and it is a second degree ascending. So as how many persons there be, take away one, and you have the number of degrees. If there be four persons it is the third degree, if five the fourth, for one must exceed, and then you have the degree. Likewise by the descending, take the father and add the son, and it is one degree; then take the son and add the grandchild, and it is the second degree; and so likewise further. Wherein observe that the father, son, and grandchild, albeit there are three persons, yet they make but two degrees, because (as it hath been said) one must exceed for making a degree. (F) The doctrine of descents, or law of inheritance in fee-simple, depends on the nature of kindred, and the several degrees of consanguinity, which is defined to be vinculum personarum ab eodem stipite descendentium, the connexion or relation of persons descended from the same stock. This consanguinity is either lineal or collateral. Lineal consanguinity is that which subsists between persons of whom one is descended in a right line from the other; as between father, grandfather, and great-grandfather, or between father, son, and grandson. Every generation in this direct lineal consanguinity constitutes a degree, reckoning either upwards or downwards. Collateral consanguinity is that which subsists between persons who lineally descend from the same ancestor, who is the stirps or root, the stipes, trunk, or common stock; but who do not descend the one from the other. The method of computing the degrecs of consanguinity by the canon law, which our law has adopted, is as follows: We begin at the common ancestor and reckon downwards, and in whatsoever degree the two persons, or the most remote of them, are distant from the common ancestor, that is the degree in which they are said to be related. Infra, 23 b. 2 BI. Com. 202. 207. 3 Cru. Dig. 373.—[Ed.} |