refide in the heir, whofe ancestor died feifed, than in one who has no fuch prefumptive evidence to urge in his own behalf. Which doctrine in fome measure arose from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of defcent; in order that there might be a perfon always upon the spot to perform the feodal duties and services: and therefore, when a feudatory died in battle, or otherwife, it prefumed 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 poffeflion, puts in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became feifed, he will then by sentence of law recover that poffeffion, to which he hath such actual right. Yet, if he omits to bring this his poffeffory action, within a competent time, his adverfary may imperceptibly gain an actual right of poffeffion, in confequence of the other's negligence. And by this, and certain other means, the party kept out of poffeffion 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 poffeffion or even the right of poffeffion. This is frequently spoken of in our books under the name of the mere right, jus merum; and the eftate of the owner is in fuch cafes faid to be totally devefted, and put to a right. A perfon in this fituation 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 anceftor, or the determination of a court of juftice, the prefumptive evidence of that right is ftrongly in favor of his antagonist; who has thereby obtained the abfolute right of poffeffion. As, in the firft place, if a perfon difseised, or turned out of poffeffion of his eftare, neglects to pursue his remedy within the time limited by law: by this means the diffeifor or his heirs gain the actual right of poffeflion:

c Gilb. Ten, 18.

d Co. Litt. 345

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 fince such his entry he has procured a fufficient title; and, therefore, after fo long an acquiefcence, the law will not fuffer his poffeffion to be disturbed without inquiring into the abfolute right of property. Yet, ftill, if the perfon diffeifed or his heir hath the true right of property remaining in himself, his estate is indeed faid to be turned into a mere right but, by proving fuch his better right, he may at length recover the lands. Again, if a tenant in tail difcontinues his estate-tail, by alienating the lands to a ftranger in fee, and dies; here the iffue in tail hath no right of possession, independent of the right of property: for the law prefumes prima facie that the ancestor would not difinherit, or attempt to difinherit, his heir, unless he had power fo to do; and therefore, as the ancestor had in himself the right of possesfion, and has transferred the fame to a ftranger, the law will not permit that poffeffion now to be difturbed, unlefs by shewing the abfolute right of property to refide in another perfon. The heir therefore in this cafe has only a mere right, and must be strictly held to the proof of it, in order to recover the lands. Laftly, if by accident, neglect, or otherwife, judgment is given for either party in any poffeffory action, (that is, fuch wherein the right of poffeffion only, and not that of property, is contefted) 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 feifin of the lands.

THUS, if a diffeifor turns me out of poffeffion of my lands, he thereby gains a mere naked poffeffion, and I ftill retain the right of poffeffion, and right of property. If the diffeifor dies, and the lands defcend to his fon, the fon gains an apparent right of possession; but I ftill retain the actual right both of possession and property. If I acquiefce for thirty years, without bringing any action to recover poffeffion of the lands, the fon gains the actual right of poffeffion, and I retain no

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 purfue it within the space of fixty years. So alfo if the father be tenant in tail, and alienes the estate-tail to a ftranger in fee, the alienee thereby gains the right of possession, and the fon hath only the mere right or right of property. And hence it will follow, that one man may have the poffeffion, another the right of possession, and a third the right of property. For if tenant in tail infeoffs A in fee-fimple, and dies, and B diffeises A; now B will have the poffeffion, A the right of poffeffion, and the iffue in tail the right of property. A may recover the poffeffion against B; and afterwards the iffue in tail may evict A, and unite in himself the poffeffion, the right of poffeffion, 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 possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit. And when to this double right the actual poffeffion is also united, when there is, according to the expreffion of Fleta, juris et feifinae conjunctio, then, and then only, is the title completely legal.

e Mirr. 1. 2. c. 27.

1 Co. Litt. 266. Bract. 1. 5. tr. 3. e. 5.

84.3. c. 15. § 5.

1

CHAPTER THE FOURTEENTH.

OF TITLE BY

DESCENT.

TH

HE several gradations and stages, requifite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to confider the feveral manners, in which this complete title (and therein principally the right of propriety) may be reciprocally loft 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 lofs are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that fame method or it's correlative fome other man has loft it. As where the heir acquires by defcent, the ancestor has first loft or abandoned his eftate by his death: where the lord gains land by escheat, the estate of the tenant is first of all loft by the natural or legal extinction of all his hereditary blood: where a man gains an intereft by occupancy, the former owner has previously relinquished his right of poffeffion: where one man claims by prescription or immemorial usage, another man has either parted with his right by an antient and now forgotten grant, or has forfeited it by the fupinenefs 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 advantage of fuch default: and, in alienation by common afïurances, the two confiderations of lofs and acquifition are so

interwoven,

interwoven, and fo conftantly 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 lofing on the other, a title to estates in things real, are reduced by our law to two: defcent, 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 (1).

DESCENT, or hereditary fucceffion, is the title whereby a man on the death of his ancestor acquires his eftate by right of reprefentation, as his heir at law. An heir therefore is he upon whom the law cafts the cftate immediately on the death of the ancestor: and an eftate, fo defcending to the heir, is in law called the inheritance.

THE doctrine of defcents, or law of inheritances in feefimple, 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 defcents is broken and altered, perpetually refer to this fettled law of inheritance, as a datum or firft principle univerfally known, and upon which their fubfequent 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 knowlege of the law of descents in fee-fimple. One may well perceive that this is an estate confined in it's defcent to fuch heirs only of the donee, as have fprung or fhall fpring from his body; but who those heirs are, whether all his children both male and female, or

a Co. Litt. 18.

(1) Purchase in law is ufed in contradiftinction to defcent, and is any other mode of acquiring real property, viz. by devise, and every fpecies of gift, and grant; and as the land taken by purchafe has very different inheritable qualities from land taken by defcent, the diftinction is important. See page 241. post.

the