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OF THE TITLE TO THINGS REAL,
THE foregoing chapters having been principally employ.
1 ed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein ; I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.
A TITLE is thus defined by sir Edward Coke 2, titulus eft jufla causa polsidendi id quod nostrum eft ; or, it is the means whereby the owner of lands hạth the just possession of his property.
THERE are several stages or degrees requisite to form 2 complete title to lands and tenements. We will consider them in a progreflive order.
I. The lowest and most imperfect degree of title consists in the mere naked polefron, or actual occupation of the ese tate ; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprize turns him out of the occupation of his lands; which is termed a digeifin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or
after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many others that might be here suggested, the wrongdoer has only a mere naked poffession, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to develt this poflession and assert his title, such actual possession is, prima facie, evidence of a legal title in the poffeffor ; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without such actual poffefsion no title can be completely good.
II. The next step to a good and perfect title is the right of polleshon, which may reside in one man, while the actual possellion is not in himself but in another. For if a man be diffeised, or otherwise kept out of possession, by any of the means before-mentioned, though the actual possession be loft, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the diffeisor, and turning him out of that occupancy which he has so illegally gained. But this right of possesfion is of two sorts : an apparent right of poffession, which may be defeated by proving a better; and an actual right of poffesion, which will stand the test against all opponents. Thus if the diffeisor, or other wrongdoer, dies possessed of the land whereof he fo became seised by his own unlawful act, and 'e fame descends to his heir; now by the common law the heir hath obtained an apparent right, though the actual right of poffefsion resides in the person diffeised ; and it shall not be lawful for the person diffeised to devest this apparent right by mere entry or other act of his own, but only by an action at law b: for, until the contrary be proved by legal demonstration, the law will rather presume the right to 5. Lite. $385.
reside in the heir, whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of descent; in order that there might be a person always upon the spot to perform the feodal duties and services : and therefore, when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-foldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of possession, puts in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became feised, he will then by fentence of law recover that possession, to which he hath such actual right. Yet, if he omits to bring this his poffeffory action, within a competent time, his adversary may imperceptibly gain an actual right of poffeffion, in consequence of the other's negligence. And by this, and certain other means, the party kept out of poffefsion 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 poffefsion 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 4. 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 folemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is Itrongly in favonr of his antagonist; who has thereby obtained the absolute right of possession. As, in the first place, if a person diffeised, or turned out of poffeflion of his eitare, neglects to pursue his remedy within the time limited by law: by this means che disseisor or his heirs gain the actual right of pollillion : cGilb. Ten, 18,
d Co. Litt. 34.57
for the law presumes that either he had a good right originally, in virtue of which he entered on the lands in question, or that since such his entry he has procured a fufficient title ; and, therefore, after so long an acquiescence, the law will not suffer his poffession to be disturbed without inquiring into the absolute right of property. Yet, still, if the person difseised 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 polellion, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heir, unless he had power so to do; and therefore, as the ancestor had in himself the right of possesfion, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by shewing 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 posesory action, (that is, fuch wherein the right of poffeffion 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.
Thus, if a diffeisor turns me out of possession of my lands, he thereby gains a mere naked posesion, and I still retain the right of poftelion, and right of property. If the diffeisor dies, and the lands descend to his son, the son gains an apparent right of poffefion ; but I still retain the actual right both of poljelion 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 poffeffion, and I retain noR3
and tie it will follok boltellion, and in fee-fimple, an the right of
thing 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 pofleffion, and the son hath only the mere right or right of property. And hence it will follow, that one man may have the potefion, another the right of pollefion, and a third the right of property. For if tenant in tail infeoffs A in fee-simple, and dies, and B diffeises A ; now B will have the porelion, A the right of porelion, 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 confifts,
IV. 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 poffeffion be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droits. And when to this double right the actual possession is also united, when there is, according to the expression of Fleta , juris et Seisinae conjunctio, then, and then only, is the title completely legal. e Mirr. 1.2. 6. 27.
8 1. 3. 6. 15. $50 + Co. Litt, 266. B . 1. 5. tr. 3. 4. 5.