Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Thirteenth : Of the Title to Things Real, in General
Chapter the thirteenth.
Of the TITLE to THINGS REAL,
The foregoing chapters having been principally employed in defining the nature of things real, in defcribing the tenures by which they may be holden, and in diftinguifhing the feveral kinds of eftate or intereft that may be had therein, I come now to confider, laftly the title to things real, with the manner of acquiring and lofing it. A title is thus defined by fir Edward Coke a
, titulus eft jufta caufa poffidendi id quod noftrum eft ; or, it is the means whereby the owner of lands hath the juft poffeffion of his property.
There are feveral ftages or degrees requifite to form a complete title to lands and tenements. We will confider them in a progreffive order.
1.The loweft and moft imperfect degree of title confifts in the mere naked poffeffion, or actual occupation of the eftate ; without any apparent right, or any fhadow or pretence of right, or any fhadow or pretence of right, to hold and continue fuch poffeffion. This may happen, when one man invades the poffeffion of another, and by force or furprize turns him out of the occupation of his lands ; which is termed a diffeifin, being a deprivation of that actual feifin, or corporal
1 Inft. 345.
freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the anceftor and before the entry of the heir, or after the death of a particular tenant and before the entry of him in remainder or reverfion, a ftranger may contrive to get poffeffion of the vacant land, and hold out him that had a right to enter. In all which cafes, and many others that might be here fuggefted, the wrongdoer has only a mere naked poffeffion, 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 thefe commentaries. But in the mean time, till fome act be done by the rightful owner to deveft this poffeffion and affert his title, fuch actual poffeffion is, prima facie, evidence of a legal title in the poffeffor ; and it may, by degrees ripen into a perfect and indefeafible title. And, at all events, without fuch actual poffeffion no title can be completely good.
II.The next ftep to a good and perfect title is the right of poffeffion, which may refide in one man, while the actual poffeffion is either in himfelf or in another. For if a man be diffeifed, or otherwife kept out of poffeffion, by any of the means before-mentioned, though the actual poffeffion be loft, yet he has ftill remaining in him the right of poffeffion ; and may exert it whenever eh thinks proper, by entering upon the diffeifor, and turning him out of that occupancy which he has fo illegally gained. But this right of poffeffion is of two forts : an apparent right of poffeffion, which may be defeated by proving a better ; and an actual right of poffeffion, which will ftand the teft againft all opponents. Thus if the diffeifor, or other wrongdoer, dies poffeffed of the land whereof he fo became feifed by his own unlawful act, and the fame defcends to his heir ; now the heir hath obtained an apparent right, though the actual right of poffeffion refides in the perfon diffeifed ; and it fhall not be lawful for the perfon diffeifed to deveft this apparent right by mere entry or other act of his own, but only by an action at law b
. For, until
Litt. §. 386.
the contrary be proved by legal demonftration, the law will rather prefume the right to refide in the heir, whofe anceftor died feifed, than in one who has no fuch prefumptive evidence to urge in his own behalf. Which doctrine in fome meafure arofe 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 on the fpot to perform the feodal duties and fervices c
: 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 otherwife determined by his fellow-foldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of poffeffion, puts in his claim and brings his action within a reafonable time, and can prove by what unlawful means the anceftor became feifed, he will then by fentence of law recover that poffeffion, to which he hath fuch 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 fpeak of ; viz.
III.The mere right of property, the jus proprietatis, without either poffeffion or even the right of poffeffion. This is frequently fpoken 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 d
. A perfon in this fituation may have the true ultimate property of the lands in himfelf : but by the intervention of certain circumftances, either by his own negligence, the folemn act of anceftor, or the determination of a court of juftice, the prefumptive evidence of that right is ftrongly in favour of his antagonift ; who has thereby obtained the abfolute right of poffeffion. As, in the firft place, if a perfon diffeifed, or turned out of poffeffion of his eftate, neglects to purfue his remedy within the time limited by law ; by this means
Gild. Ten. 18.
Co. Litt. 345.
the diffeifor or his heirs gain the actual right of poffeffion : for the law prefumes that either he had a good right originally, in virtue of which he entered on the lands on queftion, or that fince fuch his entry he has procured a fufficient title ; and therefore, after fo long an acquiefcence, the law will not fuffer his poffeffion to be difturbed without enquiring into the abfolute right of property. Yet, ftill, if the perfon diffeifed or his heir hath the true right of property remaining in himfelf, his eftate 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 eftate-tail, by alienating the lands to a ftranger in fee, and dies ; here the iffue in tail hath no right of poffeffion, independent of the right of property : for the law prefumes prima facie that the anceftor would not difinherit, or attempt to difinherit, his heir, unlefs he had power fo to do ; and therefore, as the anceftor had in himfelf the right of poffeffion, and has transferred the fame to a ftranger, the law will not permit that poffeffion now to be difturbed, unlefs by fhewing the abfolute right of property to refide in another perfon. The heir therefore in this café has only a mere right, and muft be ftrictly 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 himfelf the right of property, this is now turned to a mere right ; and upon proof thereof in a fubfequent action, denominated a writ of right, he fhall 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 poffeffion ; but I ftill retain the actual right both of poffeffion 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 nothing but the mere right of property. And even this right of property will fail, or at leaft it will be without a remedy, unlefs I purfue it within the fpace of fixty years. So alfo if the father be tenant in tail, and alienes the eftate-tail to a ftranger in fee, the alienee thereby gains the right of poffeffion, 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 poffeffion, and a third the right of poffeffion, and the iffue in tail the right of property : A may recover the poffeffion againft B ; and afterwards the iffue in tail may evict A, and unite in himfelf the poffeffion, the right of poffeffion, and alfo the right of property. In which union confifts,
IV. A complete title to lands, tenements, and hereditaments. For it is an antient maxim of the law e
, that no title is completely good, unlefs the right of poffeffion 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 poffeffion is alfo united, when there is, according to the expreffion of Fleta g
, juris et feifinae conjunctio, then, and then only, is the title completely legal.
Mirr. l. 2. c. 27.
Co. Litt. 266. Bract. l. 5. tr. 3. c. 5.