There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; 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 surprise turns him out of the occupation of his lands; which is termed a disseisin, 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 [ *196 ] 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 wrong-doer has only a mere naked possession, 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 devest 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. (1) And, at all events, without such actual possession no title can be completely good.

II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself, but in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts: an apparent right 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 if the disseisor, or other wrong-doer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now by the common law the heir hath obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law: (b) (2) for, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir, whose ancestor died seised, than in one [ *197 ] who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feudal 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 feudal duties and services; (c) 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-soldiers and fellow-tenants, the peers of the feudal court. But if he, who has the actual right of possession, puts in

(1) [In general a person in actual possession of real property cannot be ousted unless the party claiming can establish some well-founded title, for it is a general rule, governing in all actions of ejectment (the proper proceeding to recover possession of an estate), that the plaintiff must recover on the strength of his own title, and of course he cannot in general found his claim upon the insufficiency of the defendant's: 5 T. R. 110, n. 1; 1 East, 246; 11 id., 488; 3 M. and S. 516; for possession gives the defendant a right against every person who cannot show a sufficient title, and the party who would change the possession must therefore first establish a legal title. Id. ibid.; 4 Burr. 2487; 2 T. R. 634; 7 id. 47.]

(2) [That is to say, a real action. Real actions (with some few exceptions) having been abolished by the statute 3 and 4 Wm. IV, c. 27, this effect of a descent from a disseisor, called a descent cast, was also taken away by the same statute, sec. 39.]

Chap. 13.]

RIGHTS OF PROPERTY.

his claim, and brings his action within a reasonable time, and can prove by what unlawful means 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. And 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 divested, 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 [*198] lands in 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 to do so; 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 The heir, therefore, in this case has only a mere to reside in another person. 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. (3)

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 property. If the disseisor dies, and the land 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, (4) 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,

(d) Co. Litt. 345.

[ *199]

(3) [This right of property, as distinguished from the right of possession, has been abolished in almost every case by the abolition of those real actions in which alone it could have been vindicated. Stat. 3 and 4 Wm. IV, c. 27.]

(4) The term is now twenty years; see the statute of 3 and 4 Wm. IV, c. 27, s. 2. And by that statute it is provided that the right and title of the person who might, within the time limited, have had the proper remedy, but who has failed to resort to it, shall be extinguished.

In general twenty years, after the right accrues, will be found to be the period limited by statute in the American states, within which the owner must bring action for recovery of real estate. Exceptions are generally made in these statutes in favor of infants, married women, insane persons, persons beyond the seas, and sometimes other classes.

463

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 fee simple, 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, (g) juris et seisinæ conjunctio, then, and then only, is the title completely legal.

CHAPTER XIV.

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 by prescription or immemorial usuage, 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 advantage of such default: and, in alienation by common assurances, *the two [*201] considerations of loss and acquisition are so interwoven, and so constantly

(e) Mirr. 1. 2. c. 27.

(ƒ) Co. Litt. 266. Bract. l. 5, tr. 3, c. 5.

(g) l. 3, c. 15, § 5.

To bar the owner's right under these statutes, it is necessary: 1. That the land should have been in the actual possession of another: Jackson v. Schoonmaker, 2 Johns. 234; Coburn . Hollis, 3 Met. 129; Doswell v. De La Lanza, 20 How. 32; Trapna v. Burton, 24 Ark. 271. 2. That the possession should have been continuous for the full statutory period: Sorber v Willing, 10 Watts, 141; Holdfast v. Shepard, 6 Ired. 361; School District v. Lynch, 33 Conn. 333. 3. That it should have been under a claim of right adverse to that of the owner, and not in recognition of his title; or as a mere " squatter": Gay v. Mitchell, 35 Ga. 139; and 4. That the possession must have been of that public and notorious character that the owner, if guilty of no negligence, would have been made aware of it and of the claim of right accompanying it. Proprietors. &c., v. Springer, 4 Mass. 418; Morrison v. Kelly, 22 Ill. 610; Scruggs v. Scruggs, 43 Mo. 142. Mere acts of trespass on land do not constitute adverse possession. Hale v. Glidden, 10 N. H, 399; Loftin v. Cobb, 1 Jones N. C. 406; Denham v. Holeman, 26 Geo. 182; Braxdale v. Speed, 1 A. K. Marsh. 106; Truesdale v. Ford, 37 Ill. 210; Parker v. Parker, 1 Allen, 245. As to what may be sufficient to establish adverse possession. see Stanley v. White, 14 East. 332; Ewing v. Burnet, 11 Pet. 41; Johnston v. Irwin, 3 S. and R. 291; Barr v. Gratz, 4 Wheat. 213; Brown v. Porter, 10 Mass. 93; Morrison v. Chapin, 97 Mass. 72; Davidson v. Beatty, 3 H. and McH. 595; Farley v. Lenox, 8 S. and R. 392; Booth v. Small, 25 Iowa, 177; Cass r. Richardson, 2 Cold. 28; Sheaffer v. Eakman, 56 Penn. St. 144; Whitehead v. Foley, 28 Texas, 268. It is not necessary that the same person should continuously have occupied adversely; for

contemplated together, that we never hear of any 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) (1)

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 the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance. (2)

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

(a) Co. Litt. 1.

two or more persons may occupy successively, and if they are in privity with each other—as in the case of grantor and grantee, or ancestor and heir-the latter is entitled to have the benefit of the possession of the one to whose right he has succeeded.

(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 Land taken by descent, the distinction is important. See post, pages 241, 243.

Mr. Hargrave in his note to Co. Litt. 18, b, distinguishes, perhaps too astutely, a title by escheat both from a purchase and from a descent. Upon similar reasoning a further division might be made in favor of title by prerogative, as where the crown takes land conveyed to an alien, &c.; but purchase is generally understood to be any acquisition otherwise than by descent.] The statute 3 and 4 Wm. IV, c. 106, enacts that the word "purchaser” in that act shall mean the person who last acquired land otherwise than by descent, or than by escheat, partition or inclosure, by the effect of which the land shall become part of, or descendible with, other land acquired by descent.

(2) [The statute of 3 and 4 Wm. IV, c. 106, for the amendment of the law of inheritance, enacts, that in every case descent shall be traced from the purchaser, but the last owner shall be considered to be the purchaser, unless it shall be proved that he inherited the land. It is also enacted, that an heir who is entitled under a will shall take as devisee, and not by descent and a limitation in any assurance to the grantor and his heirs shall create an estate by purchase: but if any person acquires lands by purchase, under a limitation to the heirs, or the heirs of the body, of any of his ancestors, such land shall descend, and the descent shall be traced as if the ancestor named in such limitation had been the purchaser of the land. It is further enacted, that no brother or sister shall be considered to inherit immediately from his or her brother or sister, but shall trace descent through their common parent; and every lineal ancestor may be heir to any of his issue, in preference to collateral persons claiming through him; the male line to be preferred throughout in tracing descents; but, in case of the failure of male paternal ancestors of the person from whom the descent is to be traced upwards, and of their descendants, the mother of his more remote male paternal ancestor, or her descendants, shall be the heir or heirs of such person, in preference to a less remote paternal ancestor; and the mother of his more remote male maternal ancestor, and her descendants, shall be heir or heirs, in preference to the mother of a less remote male maternal ancestor. And it is further enacted, that any person related to the person from whom the descent is to be traced by the half blood shall be capable of being his heir, and shall stand next in order of inheritance after any relation of the same degree of the whole blood, and his issue, where the common ancestor shall be a male, and next after the common ancestor where such common ancestor shall be a female: and after the death of a person attainted his descendants may inherit. The act does not extend to any descent which took place before the 1st of January, 1834, nor to any assurance executed before the said date, or the will of any -person who died before the said date, which assurance or will contains any limitation or gift to the heir or heirs of any person under which the person or persons answering the description of heir would have been entitled to an estate by purchase if this act had not been made; but such limitation or gift shall take effect, whether the person named as ancestor was or was not living on the said 1st day of January, 1834.] 465

VOL. I.-59

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 boroughEnglish, have already been often (b) hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so 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 (c) 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. (3)

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 connexion 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 [*203] 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 great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil, (e) and canon, (ƒ) as in the common law. (g)

The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees; and so many different bloods (h) is a man said to contain in his veins, as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers; and by the same rule of progression, he hath an hundred and twenty-eight in

(b) See Book I, pages 74, 75. Book II, pages 83, 85.

(c) See page 112, &c.

(d) For a fuller explanation of the doctrine of consanguinity, and the consequences resulting from a right apprehension of its nature, see an essay on collateral consanguinity. (Law tracts, Oxon. 1762, 8vo., or 1771, 4to.) (e) Ff. 38, 10, 10. (f) Decretal. l. 4, tit. 14. (g) Co. Litt. 23. (h) Ibid. 12.

(3) [The devolution of an estate tail is of a very different nature from a descent in feesimple at common law; in the former the heir of the original purchaser or donee in tail succeeds; in the latter the succession devolved upon the heir of the person last seized; and consequently the rule excluding the half blood, and the effect of a possessio fratris had no application to a descent in tail: 8 T. R. 211; and, until 8 Hen. VIII, c. 28, each taker was so far considered to take as a purchaser under the original gift, per formam doni, that his claim was not hindered by the attainder and corruption of the blood of his ancestor. 3 Rep. 10; 8 id. 165, a; Cro. Eliz. 28.]