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done by the rightful owner to divest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor, and, by length of time and negligence of the real owner, it may by degrees mature into a perfect and indefeasible title. At all events, without such actual possession, no title can be completely good.? II. RIGHT OF POSSESSION.
When it Exists. This is the next step to a good and perfect title, and may reside in one man, while the actual possession is not in himself, but in another. For if a man is disseised, or otherwise kept out of possession, though the actual possession be los yet he has still remaining in him the right of possession, and may exert it at any time, by entering, and turning the disseisor out of that occupancy, which he has illegally gained.
Apparent and Actual. 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.
Heir of a Disseisor. Thus if the disseisor, or other wrong doer, dies possessed of the land, whereof he so became seised by his own unlawful acts, and the same descends to his heir, now by the common law, the heir has 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 divest this apparent right, by mere entry or other act of his own, but only by an action of law. The law will rather presume, until the contrary be legally proved, the right to reside in the heir, whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. The feudal law favored the right of descent, in order that someone might be on the spot to perform the feudal duties and services; and therefore, when a feudatory died in battle, or otherwise, it presumed his children were entitled to the feud, till the right was otherwise determined by the peers of the feudal court.
Result of Laches. But if he, who has the actual right of possession, presents his claim, and brings his action within a reasonable time, and can prove by what unlawful means the
1 To oust such party in actual possession, the plaintiff must recover on the strength of his own title, and not on the weakness of his opponent's.
ancestor became seised, he will then, by sentence of law, recover possession of that, to which he has such actual right. Laches may give his adversary an actual right of possession. III. RIGHT OF PROPERTY.
Defined. This is the jus proprietatis, without either possession, or the right of possession. This is often termed the mere right, jus merum, and the estate of the owner is in such cases to be totally divested, and put to a right.
Right of Possession in Another. A person in this situation may have the true ultimate property in the lands in himself, but owing to circumstances, resulting either from 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 favor of his antagonist, who has thereby obtained the absolute right of possession.
Example. Result of Laches. As if a person disseised, or turned out of possession, neglects to pursue his remedy within the time allowed by law, and by this means, the disseisor or his heir gains the actual right of possession. In such case, the law presumes he had a good right originally, when he entered on the lands, or gained a sufficient title subsequently; hence after so long an acquiescence, the law will not suffer his possession to be disturbed, without inquiring into the absolute right of property. Still, if the person disseised or his heir has the true right of property remaining in himself, his estate is indeed turned into a mere right; but by proving such his better right, he may at length recover the lands.
Writ of Right. If by accident, neglect or otherwise, judgment is given for a party in any possessory action, that is, where the right of possession only, and not that of property, is contested, and the other party has the right of property, that is now turned to a mere right, and produces proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.
Examples of these Respective Rights. Thus if a disseisor turn me out of possession of my lands, he thereby gains a mere naked possession, while I retain the right of possession and right of property. 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 for the possession of the lands, the son gains the actual right of possession, and I retain nothing but the right of property. And even this right of property will fail, unless I act within 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 has 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. IV. A COMPLETE TITLE TO LANDS.
1 The writ of right is now abolished by statute.
Merger of These Rights. 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 termed a double right, jus duplicatum or droit-droit. And when to this double right, the actual possession is also united, when there is juris et seisinae conjunctio, then, and then only, is the title completely legal.
CHAPTER XIV.-TITLE BY DESCENT.
Acquisition and Loss. Having stated the several gradations and stages requisite to form a complete title to lands, tenements and hereditaments, we will next consider the several manners, in which the title may be lost and acquired; whereby the dominion of things real is either continued or transferred.
By whatever mode 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 his estate by his death; where the lord gains by escheat, the estate of the tenant is first lost by the extinction of his hereditary blood; where a man gains an interest by occupancy, the former owner has relinquished his right of possession; where one man claims by prescription, another man has parted with his right by an ancient and now forgotten grant, or has forfeited it by neglect of himself and his ancestors for ages; and so in case of forfeiture, the tenant by his own misbehavior or neglect has renounced his interest in the estate, wherenpon it devolves upon that person, who by law may take advantage of such default.
Modes of Acquisition and Loss. The methods of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by law to two:
1. Descent, where the title is vested in a man by the single operation of law.
2. Purchase, where the title is vested in him by his own act or agreement.
Descent Defined. 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 is he, upon whom the law casts the estate immediately on the death of the ancestor, and the estate is termed an inheritance.
Knowledge on this point Essential. The doctrine of descents or law of inheritance in fee-simple, is the principal object of real property in England. All the rules, relating to purchases, whereby the legal course of descents is altered, constantly refer to this settled law of inheritance, as a datum or first principle, upon which 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.
Consanguinity. As the common law doctrine of inheritance depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be necessary to state the true notion of this alliance in blood. Consanguinity or kindred is defined to be vinculum personarum ab eodem stipite descendentium, the connection of persons descended from the same stock. It is either lineal or collateral.
i The term “purchase" in law is any other mode of acquiring real property than by descent. It may be by a man's own act or agreement, by devise, and by every species of gift or grant.
Lineal Consanguinity. This subsists between persons, of whom one is descended in a direct line from the other. It may be in a direct descending line, as father to son, or in a direct ascending line, as son to father. Every generation in this direct lineal consanguinity constitutes a different degree, reckoning either upwards or downwards. A man's father is related to him in the first degree, and so also is his son, while bis grandfather and his grandson are related to him in the second degree. This holds true in the canon, the civil and the common law. By actual computation, every man at the distance of twenty generations has more than a million of ancestors, commencing with his two parents, his four grandparents and his eight great grandparents.
Collateral Kindred. Collateral relations agree with lineal ones, in that they descend from the same stock or ancestor, but differ, in that they do not descend, one from the other. The common ancestor is the stirps or root, the one trunk or common stock, from whence these relations branched out, and though but collateral kinsmen, they each have a portion of the ancestor's blood in their veins, and hence are termed consanguineos. Suppose each couple of our ancestors to have left two children, and each of those children on an average two more, we will find that all of us have now existing nearly two hundred and seventy million of kindred in the fifteenth degree, at the same distance from the common ancestors as ourselves. This of course is materially decreased by intermarriage between kindred.
Computing Degrees. The method of computing these degrees in the canon law, which our law has adopted, is as follows: we begin at the common ancestor, and reckon downwards; and in whatever degree the two persons, or the more remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus X and his brother are related in the first degree, while X and his nephew are related in the second degree, for the nephew is two degrees removed from the common ancestor, his own grandfather.
Rules of Inheritance. There are certain rules or canons of inheritance, according to which, estates are transmitted from the ancestor to the heir:
1. Inheritances shall lineally descend to the issue of the person,