2 Comm. c. 13. legal possession and enjoyment of it. And Sir W. Blackstone observes that there are several stages or degrees requisite to form a complete title to lands and tenements. Possession. Effect of an Tit. 1. s. 22. 1 Inst. 252 b. s. 417, 418. s. 419. 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 defeat by an entry on the land: but in the mean time 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. (a) 4. The necessity of an entry by the heir, upon the death of the ancestor, or, where that is prevented, of a continual claim, (b) has been already stated. In the case of a disseisin or ouster of the freehold, there must also be an 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 persons, an entry must be made on each of them: but if the disseisor has let the lands to several persons for years only, 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 [previously to the late statute of limitations], was to put the person who entered or claimed, into the actual possession and seisin in deed of the lands. Thus Littleton says " By such entry he shall have as good a possession and seisin of all the lands and tenements whereof he hath title of entry, as if he had entered in deed into every parcel." And speaking of continual claim, he says-" Presently by such claim he hath a possession and seisin in the lands, as well as if (a) [By stat. 3 & 4 Will. 4. c. 27. s. 14. It is enacted that any acknowledgment of title given in writing to the person entitled, or to his agent shall be deemed equivalent to possession or receipt of rent at the time of such acknowledgment.] (b) [Abolished, Stat. 3 & 4 Will. 4. c. 27. s. 11.] he had entered in deed; although he never had possession or seisin of the same lands, or tenements before the said claim.” (a) session. 6. The next step to a good and perfect title is the right of Right of pospossession, which may exist 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 the person on whom the abatement or intrusion has been effected, who may exert it whenever he thinks proper, by an entry; and the actual possession is in the disseisor, abator, or intruder. 1 Inst. 237. b. Plowd. 545. 2 Saund. R.7 a. 7. In the case of a disseisin, abatement or intrusion, the descent of the lands to the heir of the disseisor or abator or intruder, [before the recent statute of limitations] tolled, that is, took away the entry of disseisee, &c. ; (b) for the law presumed that the possession, which was transmitted from the ancestor to the heir was rightful, until the contrary was shewn; so that in general no person could recover possession by mere entry on lands, which another had by descent. It is, however, enacted by the statute 32 Hen. 8. 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. Tit. 31. c. 2. whereof he shall so die seised, by the space of five years next after the disseisin, without entry or continual claim. 8. Where a person who had a right of entry was under any Lit. s. 402. legal disability, such as infancy, coverture, imprisonment, insanity, or absence from the realm, a descent would not take away the right of entry. (c) actual. 9. The right of possession is of two sorts; an apparent right Apparent or 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, where a person was disseised, Gilb. Ten. 21. the disseisor had only the naked possession, because the 1 Salk. 685. (a) [Abolished by stat. 3 & 4 Will. 4. c. 27. s. 11. which also enacts s. 39. that no descent cast after the 31st December, 1833, shall toll or defeat a right of entry or action for the recovery of land; and it also enacts, s. 10, That by mere entry no person shall be deemed to have been in possession within the meaning of that act.] (b) [Abolished by the same stat. s. 11.] (c) [See the same stat. ss. 14, 15, 16.] Lit. s. 385. Ante, s. 7. Smith v.Tyndal, 2 Salk. 685. Tit. 31. c. 2. 11 Mod. 104. Right of property. Discontinuance of estates. 1 Inst. 325 a. 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. 10. If a disseisor died after five years' quiet possession, and the disseisee entered, the heir of the disseisor might maintain an ejectment; for the right of possession belonged to him though the mere right was in the disseisee. (a) 11. Where the person who had the actual right of possession made his claim, and brought his action, within the time prescribed by the former statutes of Limitation, and could prove by what unlawful means the person in possession acquired his seisin, he would then, by judgment of law, recover that possession to which he had such actual right. But if he omitted to bring his possessory action within the limited time, his adversary might imperceptibly gain an actual right of possession. 12. When the right of possession was gained, the party kept out of possession had nothing left in him but the mere right of property, or jus proprietatis, without either possession, or the right of possession; and his estate was then said to be devested and turned to a right. It was devested because the right owner was turned out of possession; and it was turned to a right, because the right of possession and consequently the right of entry was lost; and nothing was left but the jus merum, or mere right of property; which could not be regained by a possessory, but only by a real action. (b) 13. [Prior to the recent statute of limitations] where the right of entry into lands was lost, and the person entitled could only recover by a real action, the estate was 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 (a) [By stat. 3 & 4 Will. 4. c. 27. s. 39. it is enacted, that no descent cast after the 31st December, 1833, shall toll or defeat a right of entry or action for the recovery of land.] (b) [See section 36 of the late stat. of limitations, s. 36, by which all real and mixed actions are abolished, except a writ of right of Dower, or writ of Dower unde nihil habet, a quare impedit, or an ejectment.] suffered by tenant in tail, or any that is seised in auter droit, whereby the issue in tail or heir or successor, or those in remainder or reversion, are driven to their action, and cannot enter. 14. The instances of discontinuance mentioned by Littleton, s. 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 was long settled, that where a tenant in tail discontinued the estate tail, which he Tit. 2. c. 2. might do by feoffment or fine, the person to whom the estate tail was transferred by these assurances acquired the right of possession; and nothing remained in the issue in tail but the mere right of property.(a) What constitutes a complete title. 16. The union of the possession, the right of possession, and the right of property, constitute a complete title to lands, tenements, and hereditaments. For it is an ancient maxim of law that no title is completely good unless the right of possession be joined with the right of property, which is then denominated a double right. And when to this double right the actual posses- 1 Inst. 266 a. sion is also united; where there is, according to the expression of Fleta, juris et seisina conjunctio; then, and then only, is the title completely legal. 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." (a) [But now by the recent statute of limitations 3 & 4 Will. 4. c. 27. s. 39. it is enacted that no discontinuance after the 31st December, 1833, shall defeat any right of entry or action.] Idem. Remitter, Id. s. 661. 3 Com. 20. Id. 190. 1 Inst. 349 b. Moo. 115. 18. Littleton says, s. 659, that 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 person is adjudged in by force of his elder title, this is said to be 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, such issue or cousin is remitted to the estate tail, as his elder title. For if he should be in by force of the descent, then the discontinuee might have a writ of entry sur disseisin (a) against him, and should recover the tenements: but inasmuch as he is in his remitter, by force of the tail, the title and interest of the discontinuee is taken away and defeated. 19. A principal cause why such heir, in the case aforesaid, and in other like cases, shall be said in his remitter, is, because there is not any person against whom he may sue his writ of formedon; for against himself he cannot sue, and he cannot sue against any other, none other being tenant of the freehold. For this cause the law doth adjudge him in his remitter, scilicet, in such plight as if he had lawfully recovered the same land against another. 20. Sir W. Blackstone has observed, that if the subsequent estate or right of possession be gained by a man's own act or consent, as by immediate purchase, being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waiver of his prior right; therefore it is to be observed, that to every remitter there are regularly these incidents. An ancient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be cast upon the tenant, not gained by his own act or folly. 21. Lord Coke, however, says, that a man shall not be remitted to a right remediless, for the which he can have no action; as if the issue in tail be barred by the fine or warranty (a) of his ancestor, and the freehold is afterwards cast upon him, he shall (a) [Now abolished by stat. 3 & 4 Will. 4. c. 27. s. 36. See also ss. 37. 38.] |