[*259] *CHAPTER VI. ? 1.-THE MODE OF ACQUIRING PROPERTY. IN the present chapter are contained three sections, which treat respectively of the acquisition, enjoyment, and transfer of property. In connexion with the first-mentioned of these subjects, one maxim only has been considered, which sets forth the general principle, that title is acquired by priority of occupation; a principle of such extensive application, and embracing so wide a field of inquiry, that the following pages will be found to present to the reader little more than a mere outline of a course of investigation, which, if pursued in detail, would prove alike interesting and instructive. It is, indeed, only proper to observe in limine,-since, from the titles which have been selected with a view to showing clearly the mode of treatment adopted, much more might reasonably be expected in the ensuing pages than has been attempted, that the object here sought to be attained is a succinct statement of the more important only of the rights, liabilities, and incidents annexed to property; so that a perusal of the contents of this chapter may prove serviceable in recalling the attention of the practitioner to the application and illustration of principles with which he must necessarily have been previously familiar, and may, without wearying his attention, direct the student to those sources of information from whence may be derived more copious and more accurate *supplies of knowledge, and which [*260] he will probably find it requisite before entering upon his professional career to consult. QUI PRIOR EST TEMPORE, POTIOR EST JURE. He has the better title who was first in point of time. The title of the finder to unappropriated land or chattels must evidently depend either upon the law of nature, upon international law, or upon the laws of that particular community to which he . belongs. According to the law of nature, there can be no doubt that priority of occupancy alone constitutes a valid title, quod nullius est id ratione naturali occupanti conceditur; but this rule has been so much restricted by the advance of civilization, by international law, and by the civil and exclusive ordinances of each separate state, that it has comparatively little practical application at the present day. It is, indeed, true, according to the rule recognised amongst nations, that an unappropriated tract of land, or a desert island, may be seized and reduced into possession by the first occupant, and, consequently, that the title to colonial possessions may, and in some cases does, in fact, depend upon priority of occupation. But within the limits of this country, and between subjects, it is apprehended that the maxim which we here propose to consider, has no longer any direct application as regards the acquisition of title to realty by entry and occupation. It was, indeed, formerly held, that where a tenant pur autre vie died, living the cestui que vie, the party who first *entered upon the land became entitled to the residue of the estate therein; but the law upon this subject has been [*261] altered by a recent statute, which, under the circumstances supposed, vests such interest in the personal representatives of the deceased; and, moreover, it is a general rule, that, whenever the owner or person actually seized of land dies intestate, and without heir, the law vests the ownership of such land either in the Crown,2 or in the subordinate lord of the fee by escheat;3 and this is in accordance with the spirit of the ancient feudal doctrine expressed in the maxim, quod nullius est, est domini regis. On the maxim, prior tempore potior jure, depends, however, the right of property in treasure trove, in wreck," derelicts, waifs, and estrays, which, being bona vacantia, belong, by the law of nature, to the first occupant or finder, but which have, in some cases, been 'D. 41, 1, 3; I. 2, 1, 12. 64 2 So, there is no doubt that, by the law of the land, the Crown is entitled to the undisposed of personal estate of any person who happens to die without next kin:" 14 Sim. 18; Robson v. Attorney-General, 10 Cl. & Fin. 497. 32 Bla. Com. 261. 4 Fleta, lib. 3; Bac. Abr., "Prerogative," (B.); 2 Bla. Com. 261. 5 As to the property in wreck, see Legge v. Boyd, 1 C. B. 92; E. C. L. R. 50, and the recent stat. 9 & 10 Vict. c. 99. " Goods are "derelict' which have been voluntarily abandoned and given up as worthless, the mind of the owner being alive to the circumstances at the time," per Tindal, C. J., Legge v. Boyd, 1 C. B. 112; E. C. L. R. 50. annexed to the supreme power by the positive laws of the state.1 "There are," moreover, "some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but an usufructuary property is capable of being had, and therefore they still belong to the first occupant *during the time he holds [*262] possession of them, and no longer; such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences. Such, also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition, which any man may seize upon, and keep for his own use or pleasure. All these things, as long as they remain in possession, every man has a right to enjoy without disturbance; but, if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards."2 In accordance with the above maxim, the rule in descents is, that, amongst males of equal degree, the eldest shall always inherit land in preference to the others, unless, indeed, there is a particular custom to the contrary; as in the case of gavelkind, by which land descends to all the males in equal degree together; or borough English, according to which, the youngest son, and not the eldest, succeeds on the death of a father. Where A. had three sons, B., C., and D., and D., the youngest, died, leaving a daughter E., and then A. purchased lands in borough English, and died, it was held, in accordance with the custom, that the lands should go to E. The right of primogeniture above mentioned does not, however, exist amongst females, and, therefore, if a person dies possessed of land, leaving daughters only, they will take jointly as coparceners." *Further, it is a general rule, that, whenever there are [*263] two conflicting titles, the elder shall be preferred, and of this The reader is referred for information on these subjects to 1 Bla. Com. 291 et seq. The finder of a jewel has such a property as will enable him to retain it against all but the rightful owner: Armory v. Delamirie, 1 Stra. 504. See Mortimer v. Cradock, 7 Jur. 45. 2 2 Bla. Com. 14; Wood, Civ. L., 3d ed. 82; Holden v. Smallbrooke, Vaugh. 187. See Acton v. Blundell, 12 M. & W. 324, 333.(*) 32 Bla. Com. 83, 84. 4 Clements v. Scudamore, 2 Lord Raym. 1024. 5 2 Bla. Com. 187. In Godfrey v. Bullock, 1 Roll. 623, n. (3); cited 2 Ld. Raym. 1027, the custom was, that in default of issue male, the eldest daughter should have the land. one instance has already been noticed in considering the law of remitter; for, if a disseisor lets the land to the disseisee for years, or at will, and the latter enters, the law will say that he is in on his ancient and better title. So, where there are conflicting rights as to real property, courts of equity will inquire, not which party was first in possession, but under what instrument he was in possession, and when his right is dated in point of time; or, if there be no instrument, they will ask, when did the right arise-who had the prior right? It forms, moreover, the general rule between incumbrancers and purchasers, that he whose assignment of an equitable interest in a fund is first in order of time, has, by virtue of that circumstance alone, the better right to call for the possession of the fund. This rule prevails amongst mortgagees, who are considered purchasers pro tanto; and where, therefore, of three mortgages, the first is bought in by the owner of the third, such third mortgagee thereby acquires the legal title, and, having thus got the law on his side, with equal equity, will be permitted to tack the first and third mortgages together to the exclusion of the second ;3 and thus the priority of equitable titles may be changed by the diligence of one of the claimants, in obtaining the legal estate to himself, or to a trustee, for the protection of his equitable interest. Changed by our laws of Innol? It will, however, be borne in mind that the doctrine of [*264] *tacking only applies where the legal has been annexed to the equitable estate in the manner above indicated; where, therefore, the legal estate is outstanding, the several incumbrancers will be paid off according to their actual priority in point of time, and in strict accordance with the maxim, prior tempore potior jure. Indeed, it may be laid down, as a general rule, that, as between mere equitable claims, equity will give no preference, and mortgages, judgments, statutes, and recognisances, will be alike payable, according to their respective priority of date. We may add, also, that a But 1 Noy, Max., 9th ed., p. 53; Co. Litt. 347, b; Wing. Max., p. 159; ante, p. 262. 2 Argument of Sir E. Sugden in Cholmondeley v. Clinton, 2 Meriv. 239. 3 Willoughby v. Willoughby, 1 T. R. 773, 774; Robinson v. Davison, 1 Bro. C. C., 5th ed. 61; Brace v. Duchess of Marlborough, 2 P. Wms. 491; 1 My. & K. 297; 2 Sim. 257; Law Magazine, No. 62, p. 326. 43 Prest. Abs., tit. 274, 275. 5 Brace v. Duchess of Marlborough, 2 P. Wms. 491, 495; cited, per Lord Hardwicke, C., Willoughby v. Willoughby, 1 T. R. 773. 6 Coote, Mort. 507. Prior registration of deed, see M'Neil v. Cahill, 2 Bligh, 228; Trull v. Bigelow, 16 Mass. R. (U. S.) 406. prior lien gives a prior claim, which is entitled to prior satisfaction. out of the fund upon which it attaches, unless such lien either be intrinsically defective, or be displaced by some act of the party holding it, which may operate in a court of law or equity to postpone his right to that of a subsequent claimant.1 In the case of hypothecation bonds, however, we may remark, the last executed must be first paid. "According to the rule of law applicable to instruments of this description," as observed by Lord Stowell, "that which is last in point of time must, in respect to payment, supersede and take precedence of the others.”2 On the same principle, a mortgagee may recover in ejectment without previously giving notice to quit, against a tenant who claims under a lease from the mortgagor, granted after the mortgage, and without the privity of the mortgagee; for the tenant stands exactly in the place of the mortgagor, and the possession of the mortgagor cannot be considered as holding out a false appearance, [*265] since it is of the very nature of the transaction that the mortgagor should continue in possession; and whenever one of two innocent parties must be a loser, then the rule applies, qui prior est tempore, potior est jure. If, in the instance just given, one party must suffer, it is he who has not used due diligence in looking into the title.3 It may, in pursuance of these remarks, be almost unnecessary to call to mind, that, in very many cases where a question arises as to the title to goods, it does, in fact, resolve itself into this consideration,-in whom did the title first become vested? Thus, it is a general rule of the law of England, that a man who has no authority to sell cannot, by making a sale, transfer the property to another ;◄ that is to say, he cannot, in this manner, divest of his property the party previously entitled. To this rule there is, indeed, one exception, viz., the case of a sale of goods in market overt; but this is an exception, originating in the manifest injustice and impolicy of permitting sales of a public description to be impeached by a party who 'See the judgment, Rankin v. Scott, 12 Wheat. R. (U. S.) 179. 2 2 Dods. Adm. R. 2. 3 Keech v. Hall, Dougl. 21; see judgment, Dearl v. Hall, 3 Russ. R. 20. See Coke v. Moylon, 16 L. J., Exch. 253. As to the legal right where two presentations are made to the same benefice, see Winch, R. 95; 1 Burn., Ecc. Law, 9th ed. 150. 4 Per Abbott, C. J., Dyer v. Pearson, 3 B. & C. 42; E. C. L. R. 10. 5 3 B. & C. 42; E. C. L. R. 10; Peer v. Humphrey, 2 Ad. & E. 495; E. C. L. R. 29. |