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Ineans the ancestor became seised, he will then by sentence of law recover that possession, to which he hath 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, in consequence of the other's negligence. Ånd 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.
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.(d) 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
[*198 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 inquiring into the absolute right of property. Yet still, if the person disseised 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 in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies; here the issue in tail hath no right of possession, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heirs, unless he had power so to do; and therefore, as the ancestor had in himself the right of possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by showing the absolute right of property to reside in another person. The heir therefore in this case has only a mere right, and must be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is 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 hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.
( Co. Litt. 315.
? It has 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. 3 & 4 W. IV. c. 17, 8. 39.-STEWART.
* But a writ of right is now abolished by the 3 & 4 W. 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.).STEWART.
The effect of the statute 3 & 4 W. IV. c. 27 is to do away with this multiplicity of dis. tinctions. A man may now have either the bare possession of land without the right of property, or he may have the right of property without possession, or he may have pos. session and right of property united. The statute which has been just mentioned, and which was passed for the “ limitation of actions and suits relating to real property, and
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 pro perty. 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 I acquiesce for thirty years, without bringing any action to recover possession 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 alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath 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 a tenant in tail enfeoffs A. in feesimple, 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,
IV. A complete title to lands, tenements, and hereditaments. For it is an ancient maxim of the law,(e) 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. (f) And when to this double right the actual possession is also united, when there is, according to the expression of Fleta,(9) juris et seisinæ conjunctio, then, and then only, is the title completely legal.
OF TITLE BY DESCENT.
The several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of property) may be reciprocally lost and acquired : whereby the dominion of things real is either continued or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession : where one man claims (Mirr. l. 2, c. 27.
() L. 3, c. 15, 26. Co. Litt. 266. Bract. l. 5, t. 3, c. 5. for simplifying the remedies for trying rights thereto," enacts (s. 35) that at the determination of the period which it limits for making an entry, or a distress, or bringing a quare impedit, (which is the remedy for the recovery of an advowson,) or other action or suit, the right and title of the person who might within the time limited have had such remedies for the recovery of land, rent, or advowsons, shall be extinguished; and to recover that which has ceased to have any existence, no remedy can remain. In this point the present statute differs from the earlier limitation acts; for they barred the remedies only, without destroying the right.-KERR.
* The mere student may be misled by the use of the term “actual possession" all through this chapter. The author means only possession of the freehold which a man may have, either by his own personal occupation or that of his lessee for years or at will.-('OLERIDGE.
by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages : and so, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take ad. vantage of such default: and, in alienation by common assurances, *the
[*201 two considerations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee.
The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.(a)
Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on tho
(*) Co. Litt. 18.
1 Purchase in law is used in contradistinction to descent, and is any other mode of acquiring real property, viz., by a man's own act and agreement, by devise, and by every species of gift or grant; and, as the land taken by purchase has very different inheritable qualities from that taken by descent, the distinction is important. See post, pages 241, 243.- CHRISTIAN.
The principal distinctions between these modes of acquiring estates are these:-1. That by purchase the estate acquires a new inheritable quality, and is rendered descendible to the blood in general of the person to whom it is limited as a feud of indefinite antiquity. 2. That an estate acquired by purchase will not, like a title by descent, render the owner answerable for the acts of his ancestors. Cru. Dig. title xxx. 8. 4. H. Chit. Desc. 4. Com. Dig. Descent, A. B. Bac. Abr. Descent, E.
It is a rule, that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent, (1 Co. 98. a., Moore, 140. H. Chit. Desc. 51;) but whero a person takes an estato which never vested or attached, or might have vested or attached, in the ancestor, he shall take by purchase: as if a son buys an estate and takes a conveyance to him and his heirs; or if a remainder be limited by a stranger to the right heirs of A., who has no estate in the premises, (for the remainder might otherwise have been attracted to the particular estate of A. under the rule in Shelley's case, 1 Co. 104,) this will be an estate by purchase. Id. 4. The instances of persons taking by descent may be classed under the following heads :-1. Where an estate devolves in a regular course of descent from father to son, or from any other ancestor to his heir at law. 2. Where the ancestor by any gift or conveyance takes an estate of freehold, and in the same conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, (the estates becoming both united in the ancestor under the rule in Shelley's case.) i Coke, 93. 1 Preston, 263. 3. Where an ancestor devises his estate to his heir at law, (the heir then taking by his preferable title, viz., by descent.) Saund. 8, note 4. 4. Where an ancestor by deed, or his will, limits a particular estate to a stranger, and either limits over the remainder (or, more properly speaking, the reversion) to his right heirs, or leaves the same undisposed of. See H. Chit. Desc. 5-10. See further as to when an heir takes by descent or purchase, post, 241, and the notes.
Mr. Hargrave (in his second note to Co. Litt. 18, b.) observes that, instead of distributing all the several titles to land under the heads of purchase or descent, it would be more accurate to say that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law, and under the latter to consider, first descent, and then escheat, and such other titles not being by descent as yet, like titles by descent, accrue by mere act of law.
So we learn from lord Coke (1 Inst. 2, b.) that if an alien purchases lands he cannot hold them; the king is entitled to them: though in such case the king plainly takes neither by purchase according to Mr. Hargrave's explanation) nor by descent. Again, (1 Inst. 3, b.,) lord Coke says, “ A purchase is when one cometh to lands by conveyance or title; and disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not purchases ;” and it is equally clear they are not acquisitions by descent. And (in 1 Inst. 18, b.) lord Coke gives other instances of titles which, in strictness, if we admit Mr. Hargrave's explanation, can be referred neither to purchase nor descent, as escheats and tenancy by the curtesy or in dower.
The division made by Blackstone seems the clearest when we are considering the law of descents alone.—CHITTY.
death of the ancestor:' and an estate, so descending to the heir, is in law called the inheritance.
The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heirs; this is a point that we must result back to the standing law of descents in fee-simple to be informed of.
*In order therefore to treat a matter of this universal consequence #:202]
the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents into those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough English, have already been often(6) hinted at, and may also be incidentally touched upon again, but will not make a separate consideration by themselves, in a system co general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common-law doctrine of inheritance; which, and which only, it will now be our business to explain.
And, as this depends not a little on 'the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood.(d)
Consanguinity, or kindred, is defined by the writers on these subjects to be "vinculum personarum ab eodem stipite descendentium;" the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral.
*Lineal consanguinity is that which subsists between persons, of
whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire and greatgrandson in the third. This is the only natural way of reckoning the degrees () See book i. pp. 74, 75. Book ii. pp. 83, 85.
guinity and the consequences resulting from a right appre
hension of its nature, see An Essay on Collateral Consan (d) For a fuller explanation of the doctrine of consan guinity. Law Tracts, Oxon. 1762, &vo, or 1771, 4to.
? Yet, though the lands are cast on the heir by the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands ; for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised. It is not therefore only u mere right to enter, but the actual entry, that makes a man complete owner, so as to transmit the inheritance to his own heirs, non jus sed seisina facit stipitem ; what a sufficient entry and seisin, and what not. Com. Dig. Descent, C. 8, 9, 10; and see post, p. 312, 209, 227, 228.–Catty.
(See page 112, &c.