STEVENS AND SONS, LIMITED, 119 & 120, CHAJSTCEEY LANE, LONDON. ^ CHITTY'S STATIiTES.-NEW EDITION. Now publishing in about 12 Vols, cloth, per Volume £l:ls. {for cash 17s.). Calf or half morocco 5s., or half -calf, cloth sides, 4s. net extra. Vol. I. Act of Pakliament to Ohaeities. BEADY. THE STATUTES OF PRACTICAL UTILITY, FROM THE EJJtl^EST TIMES to tlie^DATE^OF PUBLIOATIOm (.¥. By , The Pu edition o lawyer o The! be spare indispem It is with Inc the com is propo (The firs "The and he has who have i f erred; hu a place on "The' nected wit! " ' Chi set of the S Act of Pari particular which they -^- .- — -. — , — -^ — , — — ...„„, p important cases which throw light on the subject." — Law Journal. OJnrnpU Slam i^rljnnl ICibtary *„* A large stock of Second-hand Law Reports and Text-books on Sale. •~/^6:/?.pi.^-. /2/ STEVENS AND SOTiS, LIMITED, 119 & 120, CHANCERY LANE, LONDON. WOW READY. Vol. I.: ABANDONMENT— ACTION. Royal 8vo., bourn RULIN Cornell University Library KD 829.L72 A treatise on possession of land :with a 3 1924 021 641 547 AEEANGED, I ROBERT CAMPBELL, M.A., Of Lincoln's Inn, Barrister-at-Law, Advocate of the Scotch Bar. ASSISTED BY OTHEE MEMBEES OF THE BAE. WITH AMERICAN NOTES By lEVING BEOWNE, Formerly Editor of the American Reports, ^c. ^ Subscribers for Five Volumes in advance will be entitled to them at £ 1 per Volume. (M- PLAN OF THE WORK. It is intended in this Work to oolleot and arrange in alphabetical order of subjects tie useful authorities of English Case Law on points of general application. The matter under each alphabetical heading is arranged in sections, in an order indicated at the commencement of the heading. The more important and Euling Oases are set forth at length, subject only to abridgment where the origiaal report is unnecessarily diffuse. The effect of the less important or subordinate cases is stated briefly in the Notes. The aim of the Work is to furnish the practitioner with English Case Law in such a form that he will readily find the information he requires for ordinary purposes. The Euling Case will inform him, or refresh his memory, as to the principles ; and the Notes will show in detail how the jirinoiiDles haye been applied or modified in other cases. The American Notes, by Mr. Ieving Beownb, are intended jDrimarily for American use ; but it is also considered that, particularly on some points which have been much discussed in American Cases, they may be of consider- able value to practitioners here and in the colonies. Each volume of the Work will contaia an Alphabetical Table of Cases reported or referred to ; and when the Work is complete there will be a General Index of Subjects as well as a Table of Gases for the whole. It is estimated that the Work will be carr ied out in about 25 Volumes, of the size of an average volume of the " Law Reports " (about 800 pages), and issued at the rate of 5 volumes per annum. *** Prospectus, ivith Specimen Pages, gratis on application, *#* All Standard Law Worhs are kept in stock, in law calf and other bindings. The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924021641547 A TEEATISE POSSESSION OP LAND, WITB A CHAPTER ON TSE EEAL PEOPEETY LIMITATION ACTS 1833 AND 1874. BY JOHN M. LiaHTWOOD, OF Lincoln's inn, babeistee-at-law, late tellow of teinity hall, OAJtBEmaB, AiUhor of "The Nature of Positive Law." LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, 1894. LONDON : PEINTED BY 0. P. EOWOETH, QKEAT NEW STEEEI, FETTEB LiNK — E.C. PREFACE. The object of this Work is to state the nature and legal effects of possession of land according to the present English laM^, and, as a means thereto, it deals with the learning of possession both in the Roman law and in the former English law. So far as relates to the nature of possession and to the acquisition and loss of possession, this reference to Roman law requires no justification. Notwithstanding the differences between the two systems, no writer on possession in English law can afford to neglect the work of the Roman jurists and of their modern com- mentators. . Among such commentators two are pre- eminent, Savigny and Ihering. Savigny's treatise remains unrivalled as a systematic exposition of the Roman law of possession, but on various points — notably in regard to the animus domini — Ihering has vigorously attacked it ; and his views, founded as they are on considerations of the practical working of the law, are well worthy of attention. I have accordingly made frequent reference to both these authorities. In treating of possession it is necessary to distinguish between the mere fact of possession and such posses- sion as the law recognizes for civil purposes ; and to avoid any chance of confusion, I have endeavoured always to describe the possession under consideration as either actual or civil possession. Actual possession is a matter which the lawyer may attempt to define, a2 IV PREFACE. but upon which it is not for him to decide. In the language of English law, it is a question for the jury. But civil possession does lie within his province. However the fact of possession may be determined, the law has still to say to whom the legal advantages of possession are to be ascribed, and in doing this it may sever the civil from the actual possession. Such severance takes place more readily in the English law, where the civil possession may depend on title, than in the Roman law, where the question of title is excluded. In regard to possessory procedure — the remedies which are given for the protection of possession — I have attempted a comparison between the Roman and the English law, and I have also attempted to show the connection between the present action for the recovery of possession of land and the old real actions. The inquiry has led me somewhat far from the domain of practical law, but I hope the result will be found useful. The Roman laAv, with its marked distinction between ownership and possession, and its limited range of possessory remedies, forms a UKseful contrast to English law. In English law, possession, in the form of seisin, is the foundation of a right of posses- sion which is equivalent to ownership as against strangers, and for the assertion of this right an extensive system of possessory remedies was devised. It was an incident of the system that the jDossessor might be protected against the true owner, and, since ejectment also was possessory, the same result was possible after ejectment had come to be substituted in practice for the possessory real actions. It was not till 1833 that the owner's right of entry was fully recognized. PREFACE. V Till recently it would have been sufficient to base the right of possession on seisin alone, and it would have been safe to say that, while mere possession was protected in trespass, it was not the foundation of a right of possession in virtue of which a plaintiff could recover in ejectment. But the decision of the Court of Exchequer, in Davison v. Gent, renders it necessary to discover some ground upon which mere possession can be regarded as giving a title in ejectment, and I have ventured to make the siiggestion that the change effected by the Real Property Limitation Act, 1833, in the nature of adverse possession under the statute, has produced a corresponding change in the nature of the possession which is the foundation of the right of possession. In other words, any possession in favour of which the statute is running is the foundation of a right of possession such as that which arose upon an adverse possession, or a disseisin, under the old law. This is in accordance with the present tendency of the law, which is to pay regard to dispossession rather than technical disseisin, and it secures for possession the necessary measure of protection without interfering with the principles of the action of ejectment. With regard to the acquisition of ownership by possession, it is unnecessary to refer to the Roman law further than to show that the rules of usucapion and prescription are quite inapplicable to English law ; but it is instructive to ascertain how title was acquired under the old Statutes of Limitations. Such an inquiry forms a useful introduction to the considera- tion of the Real Property Limitation Acts, and I have devoted a chapter to it. I have also in this connection given a full account of the great case of Cholmondeley n PKEFACE. V. Clinton. The Real Property Limitation Act, 1833, rendered that case unnecessary as an authority on the point immediately decided, but the arguments and the judgments may still be studied with profit. The Real Property Limitation Acts I have discussed in a chapter of some length. My object has been, "without entering into any great detail, to state in a compact and convenient form the principles which govern the operation of the Acts. The text of the book shows the obligation I am under to Sir Frederick Pollock and Mr. Justice Wright's work on Possession in the Common Law, and to Professor Maitland's articles on Seisin in the " Law Quarterly Review." I am indebted to Mr. W. M. Fawcett, of Lincoln's Inn, for much valuable advice in the course of the preparation of the Work, and for his kindness in reading the proofs as the Book was passing through the press. I have had the advantage of his wider experience, and the text has been greatly improved in consequence of his suggestions. I am glad to take this opportunity of acknowledging my obligation to him. The substance of Chapter VII., on the Statutes of Forcible Entry, has appeared in three articles con- tributed to the "Solicitors' Journal" in October, 1893. I am obliged to the proprietor for his courtesy in permitting me to use it here. JOHN M. LIGHTWOOD. Lincoln's Lstn, September, 1894. TABLE OF CONTENTS. PREFACE - TABLE OF OASES PAGE - iii Ohap. I. OIVIL POSSESSION - . . i „ n. THE NATUEE OF CIVIL POSSESSION - - 9 1. The Element op Physical Control - - 10 (i.) Acts of Ownership - - - - 12 (ii.) Exolusion of Others 14 2. The Element oe Intention - - 20 3. Chaeactee in "WHICH Possession is held 26 „ in. THE ACQUISITION AND LOSS OF CIVIL POSSESSION - - 28 1. Deliveet oe Possession - - - 30 2. Entet itndee Title - - - 36 3. Dispossession (iNCLixDiNa Disseisin) - - 39 Disseisin - - - 42 4. Abandonment of Possession - 56 „ IV. THE MAINTENANCE OF POSSESSION - - 64 „ V. THE EECOVEEY OF POSSESSION - - 11 (a) Peopeietaey Actions - - - - 71 (b) PossEssoET Actions - _ - 75 I. Possessory Eemedies in the Eoman Law - 78 (1) Dispossession - - - 79 (2) Wrongful Entry on Death of Possessor- 82 (3) Wrongful Continuance in Possession - 83 II. Possessory Eemedies in English Law 84 (1) Disseisin - - 85 (2) Abatement and Intrusion - - 89 (3) Deforcement and Discontinuance 91 (4) Defence to Possessory Actions - - 95 Vlll TABLE OF CONTENTS. PAGE Chap. VI. THE ACTION OP EJECTMENT 104 „ Vn. EBSTEAINT ON EXERCISE OF EIGHT OP ENTET- - 128 1. Statutes OF PoRciBLE Entet - 128 2. Effect of Statutes on Civil Eight of Entky - - - 134 „ Yin. EEASONS FOE THE PEOTBCTION OP POS- SESSION- - - 144 „ IX. THE OLD STATUTES OF LIMITATIONS- 152 Adteese Possession undee Equitable Title - 167 „ X. THE EEAL PEOPEETY LIMITATION ACTS - 180 I. The Subject-matter of the Acts - 184 1. Land -. - - 185 2. Eent Charges - - - 188 3. Capital Charges and Arrears of Eent and Interest - - 189 II. Eemedies which aee baeeed 190 III. Date of Accrual of Eight of Entey or Action - 192 1. Present Interests 193 (1) Loss of Possession 193 (a) Dispossession and Discontinuance of Possession of Land - 194 (b) Discontinuance of Receipt of Rent 210 (2) Failure to tuke Possession 210 2. Future Interests 211 3. Trustee and Cestui que trust 215 Operation of the Statute : — (1) Ln favour of the Trustee against the Cestui que trust 216 (2) Ln favour of the Cestui que trust against the Trustee 218 (3) Ln favour of a Stranger 221 (4) In favour of one Cestui que trust against the Rest - 223 4. Mortgagor and Mortgagee 224 Operation of the Statute : — (1) In favour of the Mortgagor 224 (2) L7i favour of the Mortgagee - 226 (3) Ln favour of a Stranger - 227 TABLE OF CONTENTS. IX Chap. X. THE REAL PEOPEETT LIMITATION ACTS- PAGE continued. 5. Lord and Copy holder - 228 Operation of the Statute : — • (1) In favour of the Lord - 228 (2) In favour of the Copyholder 229 (3) In favour of a Stranger 230 6. Landlord and Tenant 231 Operation of the Statute : — ■ (1) In favour of the Tenant 231 (a) Tenancies at Will 232 (b) Yearly Tenancies 234 (c) Terms of Tears 236 (2) In favour of Strangers 238 7. Sums of Money charged on Land 241 IV. Vaeiations of the Statutoet Peeiod 243 1. Disability 244 2. Concealed Fraud 245 3. Acquiescence - 246 V. Pebtenting the Bae of the Statute 247 1. Acknowledgment of Title 247 2. Part Payment 253 (1) Existing Charges - 257 (2) Specialty and Simple Contract Debts 260 3. Ee-entry 264 4. Commencement of Action - 268 Ti. The New Title - 270 XL TITLE BY POSSESSION 293 Appendix I. PEDIGEEE in OHOLMONDELEY v. CLINTON - - 308 II. STATUTES. Eeai Peopbett Limitation Act, 1833 - 309 3 & 4 Will. 4, c. 42 319 1 Vict. c. 28 - 321 Eeal Peopeety Limitation Act, 1874 322 INDEX - - - 327 ( ^i ) TABLE OF CASES. A. PAGB Abeeqavenny, Earl of, ». Brace 214 Adair v. Shaftoe 204 Adnam v. Earl of Sandwich . . 210 Aikin v. Buck 40 Alchome v. Gomm 126 Allan V. Liverpool ,17, 18 Allen «. England 27,182 V. Kivington 108 Anderson v. Anderson 215 Andrews v. HaUes 289, 290 Anstee v. Nelms 283, 284 Archbolds;. SouUy ..26, 127, 188, 189, 235, 236, 237, 246, 247 Aster ii. Whitlook ..27,108,110, 114, 116, 120, 124, 133, 271, 276, 280 AsMon V. Stock 206 Astley «. Earl of Essex 212 Atkins V. Tredgold 264 Att.-G-en. v. Emerson , 14 V. Flint 217 D. Himgerford .... 218 V. Lord Hotham . . 127 V. Magdalen Col- lege 216 ■ V. Mayor of Bristol. 218 f. Mayor of Coventry 218 ■ ■ V. Stephens 236 ■ ».Tomline..23Q,289, 290 Austin V. Llewellyn 214 Baines v. Lumley 236 Baker, Ee ' 247 V. Wetton 250 Barclay v. Owen 257 Bamett v. Earl of Guildford. . 66 Barnstable v. Thaoker 15 Barrett v. Birmingham 249 Batchelor v. Middleton 249 Beattie «;. Mair 135 Beoher v. Delaeour 252, 253 PAGE Beckford 1). Wade 216 Beddall v. Maitland 135, 140 Beere v. Eleming 127 Bermingham's Estate, Re. . , , 214 Berrington v. Evans 190 Berry v. White 27 Bertie v. Beaumont 27 Birch V. Wright 225 Bishop V. Howard 235 Blades v. Higgs 139 Blair v. Nugent 249 Blake, Re 242 V. Foster 227 V. Gale 263 Blundell v. Baugh 49, 51 Board v. Board 282 Boatwright v. Boatwright . . 264 Bolding V. Lane 248, 252, 260 Boiling V. Hobday . .220, 224, 274 Borrows v. Ellison 244 Bowyer v. Woodman 185 Brassington v. Llewellyn .... 272 Braythwayte v. Hitchcock . . 233 Brest V. Lever 115 Brew V. Haren 26 Brighton, Mayor of v. Guar- dians of Brighton 233 Bristow V. Cormican 13, 27, 38 British Mutual Insurance Co. V. Sinart 261 Brown ». Notley 61 Browne v. Bishop of Cork. . . . 227 ■ V. Dawson 41 Bryan v. Cowdal 272 Bunting v. Sargent 235 Burgess v. Wheate , 175 Burling V. Read 135 Burrell v. Earl of Egremont. .226, 257 Burroughs v. M'Creight. .220, 224, 252, 273 Burrowes v. Gore 242 Bushby v. Dixon 6, 187 Butcher v. Butcher 25, 37 Butler's Estate, Re 270 xu TABLE OF CASES. C. PAOE Cannon v. Eimington 215 Carey v. Buntain 40 Carlton v. Bowoock 287 Carroll v. Daroy 251 ' V. Hargrave 243 Castorne v. Scarfe 27, 172 Chadwick v. Broadwood .... 240 Chalmer v. Bradley 216 Chamberlain, Ex parte . .281, 282 Chambers v. Donaldson 67 Chetham ». Hoare 246 Chichester, Earl of v. Hall . . 188, 230 Chinnery i>. Evans . . 225, 254, 255, 256, 258 Cholmondeley v. Clinton . .47, 55, 152, 153, 160, 164, 165, 166, 168, 218, 219, 223, 225,227, 231, 239, 280 Churoher v. Martin 204, 2] 8 Claridge v. Mackenzie 286 Clark V. Elphinstone 13 Clarke v. Clarke 213 Clayton v. Blakey 235 Cockburn v. Edwards 255 Oolclough, Ke 270 CoUis V. Slack 250 Commissioners of Donations v. Wybrants 218 Conry ». Caulfield 167 Cook V, Harris 8 Coope V. Cresswell . .255, 257, 261, 262 Cooper r. Blandy 286 ■ V. Emery 299 V. Warre 222 Corbett v. Barker 227 Cornish v. Searell 285 Corpus Christi College v. Rogers 238 Cory V, Bristow 18 Courtown v. Ward 127 Coverdale v. Charlton 15 Crawley v. Price 235 Cronin v. Dennehy 256 Crosby v. Wadsworth 20 CuUey ». Taylerson 181 Cunningham v. Eoot 217 D. Darley v. Tennant 192 Dartmouth, Earl of v. Spittle 206, 207 Davies v. Lowndes 5, 106 Davis V. Danks 24 PAGE Davison*). Gent ....107, 121, 122 Dawkins B. Lord Penrhyn 206, 273 Day V. Day 233 De Bussche «>. Alt 246 Deanj). Hogg 17 Dearman v. Wyche 19" Denn v. Barnard 113 Dibbt). Walker 261 Dickenson v. Teasdale. . . . 217, 260 Dillon V. Cruise 242 1). Parker 226 Dixon V. Baty 292 V. Gayfere 277, 278 Doe*;. AngeE 240 — V. Barber 108 — V. Barnard . .27, 72, 108, 114, 116, 120, 123, 275, 276 — V. Barton 126 — V. Baytup 126 — V. Beckett 236 — V. Bell 235 — V. Billyard 115 — V. Bramston 60, 196 — V. Brightwen 161, 181 — V. Brown 285 — V. Carter 117, 233 — V. Clark 161 — V. Cleveland 7, 113 — V. Cooke 114 — V. Coombea 266 — V. Cooper 237 — V. Cox 235 — V. Crago 235 — V. Danvers . . 166, 166, 167, 239 — V, Davies 113 — V. DybaH 114, 115, 117 — V. Edmonds 212, 250, 251 — V. Eyre 182, 228, 258 — V. Finch 187 — 4). Flynn 237 — 1). Francis 285 — V. Godsill 240 — v. Gower 236 — V. Gregory 163 — 11. Grubb 161 — V. Holier 228, 229 — 1). Hull 163 — V. Jauncey 271 — V. Jones 234, 289, 291 ■ — V. Lawley 161 — V. Liversedge 211, 213 — t). Lynes 47 — V. Maisey 225 — V. Martin 114, 117 — V. Massey . . 182, 228, 258, 291 — V. Moore 212 — V. Moulsdale 213 — V. MuUiner 289 TABLE OF CASES. Xlll PAGE Doe V. Oxenham 236, 240 — V. Parke 107, 114 — V. Pasquali 163 — V. Perkins fil, 162 — V. Phillips 219 — V. Prosser 164, 166 — V. Reade 125 — V. Eees 288 — V. Rook 220 — V. Rolfe 211 — V. Scott 1-59 — V. Smythe . ." 126 — D. Stanion 165,237 — V. Sumner 273 — V. Taylor 31 — V. Thomas 234 • — V. Thompson 161 — V. Tidbury 289 — V. Trueman 228, 229 — V. Turner 232 — V. Watts 235 — V. Webber 114 — V. Wells 237 ■ — 1). Wiggins 285 — V. Wilkinson 161 — V. Williams 165, 225 — V. Wood 233 — V. Wright 68 — V. Wroofc 125 Dowland v. Slade 73, 75 Downe v. Cooper 126 Doyle V. Kaufman 269 Drew V. Earl of Norbury .... 241 Driver v. Broad 185 Drummond v. Sant 220, 221 DubKn, Corporation of ». Judge 248, 250 Dundee Harbour, Trustees of, V. Dougall 153 Dunne v. Doyle 243 Dunwich, Bailiffs of v. Sterry 26 Dyson v. Collick 20 E. Ecclesiastical Commissioners ». Parr .... 229 V. Rowe . . 238 v. Treemer. 239, 297 Edmunds v. Downes 250 Edwick V. Hawkes 130, 140 Ellis V. Loftus Iron Co 64 Elwes V. Brigg Gas Co 25 Ely, Dean of v. Bliss 181, 185, 189 England ff. Slade 125 Evans, Re 281 Eyre r. Walsh 164 F. PAGE Farran v. Beresford 242 V. Ottiwell 242 Earrell v. Gleeson 242 Faussett v. Carpenter 166, 219 Fenner ». Duplock 285 Einlay v. Bristol and Exeter Ry. Co 235 Fitzmaurices, Re 252, 257 Fletcher, Ex parte 40 Ford V. Ager 182, 228 Fordham v. Wallis 264 Forster v. Patterson 245 Forsyth v. Bristowe .... 225, 255 Freeman v. Barnes 219 Frisby, Re 255, 257, 259 Furber v. Finlaysou 40 Furness v. Meek 260 Fursdon v. Clegg 249, 250 G. Garrard «. Tuck 219,234 Geary v. Bearoroft 7, 65 Gedye v. Commissioners of Works 281, 282 Gledhill v. Hunter , 109 Goodall r. Skerratt 215 Goode V. Job 249, 250 Goodtitle V. Baldwin 106 V. Newman 6 Graham v. Peat 67 Grant !;. Ellis 188,236,240 Greaves, Re 269 Gregory v, Doidge 285 Gregson v. Hindley 252 Groom v. Blake 118, 270 H. Hadfield's Case 7 HaU V. Butler 285 «;. Doe 165 Hancock v. Austin 19 Hanks v. Palling 273 Harlock v. Ashberry 190, 254, 255, 260 Harmood v. Oglander 224 Harper v. Charlesworth 20, 65, 68 Harrison v. Blackburn .... 34, 65 V. Duignan 270 Hartley v. Wharton 250 Harty v. Davis 253 Harvey v. Brydges 129, 139 Hawksbee v. Hawksbee 283 Hayes v. Woodley 241 XIV TABLE OF CASES. PAGE Heath v. Pugh..l85, 190, 225, 226 Heelis v. Blain 7 Helshaw v. Langley 248 Hewett V. Barr 269 Hey V. Moorhouse 37 Hillary v. Gay 136 Hobbsj). Wade 182 Hobson V. Bums 251 Hodgson V. Hooper 234 Hodson V. Walker ' , 65 Hogan V. Hand 233 Holland V. Clarke 249 HoUingshead, Be 263 Holmes t>. Bagge 17 Homan v. Andrews 254 Hopkins v. Hopkins .... 173, 179 Hornsey Local Board v. Mon- arch Building Society . .242, 243 Hovenden v. Lord Annesley . . 167, 168, 216, 221 Howcutt V. Bonser 251 Howitt p. Earl of Harrington. . 189, 230 Hudson V. Femyhough 269 Hugill V. Wilkinson .... 211, 226 Humble V. Humble 214 Hunt V. Burn 159 Hunter J). Nockolds 191 Hyde v. Dallaway 227 I. Incorporated Society v. Eich- ards 249,250,273 Irish Land Commission v. Grant 188, 189 Jack V. Walsh 272 James v. Salter .... 180, 192, 211 Jay V. Johnstone 243 Jayne v. Hughes .... 249, 250, 251 V. Price 106, 115 Jepherson ». Dryden 35 Jones f. Chapman ....37, 39, 132 D.Foley 141 i>. Williams 13,14,16 Jumpsen 4). Pitchers 211 K. Keeoh v. Hall 224 Keefe v. ICirby 275 PAGE Keeue v. Deardon 161, 219 Kennedy v. Woods 238, 272 Kemaghan v. M'NaUy 284 Keyse v. Powell 208 Kingsmill v. Minard..289, 290, 291 Kinsman v. Rouse 227, 245 Knight V. Bowyer 224 V. Cox 287 L. Lambert v. Stroother 68 Lane v. Dixon 17, 18 Law V. Bagwell 216 Lawrance v. Lord Norreys . .245, 246 Leach v. Jay 43, 50 Leehmere v. Fletcher 250 Leeds, Duke of v. Earl Am- herst 246 Leigh V. Jack 25, 59, 60, 199, 203 Leman v. Newnham 161 Lewellin ». Mackworth 221 Lewin«>. Wilson.. 255, 256, 259,260 Lewis V. Branthwaite 208 V. Price „ 114 Ley V. Peter 248 Lidiard and Jackson's and Broadley's Contract 229, 230 Life Association of Scotland v. Siddall 218, 247 Liford's Case 66 Lisbume, Earl of v. Davies. . . 290 Lister v. Pickf ord 223, 224 Litchfield v. Eeady , 65, 66 Locke i\ Matthews 234 L. & N. W. Ky. Co. v. Buck- master 19 Lord Advocate v. Blantyre. . 13, 17 V. Young 12, 20 Low Moor Go. v. Stanley Coal Co 35, 207 Lowe V. Fox 244 Lows V. Telford 38, 131, 139 Lucas 'V. Dennison 249 Lyall V. Fluker 248 Lyell 11. Kennedy. .6, 24, 182, 187, 218, 241 Lyon J". Reed 237 M. Magdalen College D. Att. -Gen. 218 Magdalen Hospital v. Knotts . . 43, 211, 218, 237 TABLE OF CASES. XV PAGE Manby v. Bewioke 153 V. Manby 268 Margaret Podger's Case 167 Markwick v. Hardingham . . 249 Martinw. Straohan 106 Mayhew v. Suttle 27 M'Carthy v. Daunt 243 JVI'Donnell v. M'Kinty . . 195, 204, 205 McGahey «. Moore 15 Melling v. Leak 219 Millington v. Thompson .... 250 Mills V. Capel 215 Moore v. Doherty 27, 182 Morgan v. Morgan 215 Mosa V. Gallimore 224 N. Nagle V. Shea 108,119 Nepeau v. Doe 181 Netterville v. Power 189 Newbould v. Smith 256, 258 Newton 41. Harland 136 Norton v. L. & N. "W. Ky. Co. 201 O. Owen, Ee 242 Owen V. De Beauyoir .... 188, 194, 210, 244, 245 Paine v. Jones 284 Parker v. Carter 219 Patrick v. Simpson 218 Payne v. Esdaile 189 Peaceable v. Watson 27, 115 Pears v. Laing 255, 263 Pedder D.Hunt 212 Penn v. Preston 14 Penny v. Alien .... , 216, 247 Pentland v. Stokes 221 Petre «;. Petre 217,245 Phelps V. Willard 36 Phillipson f . Gibbon 202 Piggott V. JefBerson , , . 243 Pinhom v. Souster 234 Pollen V. Brewer 135, 140, 234 Pomfret, Earl of v. Lord Windsor 166, 219 Popes. Biggs 126,225 Portsmouth, Earl of v. Lord Effingham 165, 219 PAGE Pratt V. Hawkins 268 Pugh 11. Heath 180, 192, 211 Putnam v. Bates 264 Q. Quarrell v. Beokford 226 Quinton v. Frith 222 R. Radcliflfe v. Anderson 66 RafEety v. King 227 Rains ii. Buxton 195, 206 Randall v. Stevens ..25, 233, 234, 266 Rankin v. M'Murtry , 275 Reading v. Royston..36, 49, 50, 160 Reddel «). Dobree 36 Reg. V. Rowe 25 Revett V. Brown 16 Rex V. Ardeu 133 «). Dorny 131 «. Oakley 132 V. Wannop 133 «). Westly 131 V.Wilson 128 V. Inhabitants of Woo- bum 266 Richardson v. Langridge .... 233 V. Tounge 248 Rigg V. Earl of Lonsdale .... 17 Rimington v. Cannon 214 Roads V. Trumpington 19 Rochdale Canal Co. v. King . . 247 Roddam i!. Morley . .254, 255, 261 Roe V. Harvey 106, 107 — V. Ireland 230 Rogers v. Pitcher 285 V. Spence 149 Routledge v. Ramsay 251 Ryan v. Cambie 242 V. Clark 34, 65, 67, 68 S. St. John, Lord v. Boughton . . 250, 251 Salter v. Cavanagh 218 Sanders*. Sanders ,.235, 253, 273 Sands to Thompson 217, 226 Saunders v. Lord Annesley .... 26, 126, 231 Scott v. Nixon . .240, 252, 273, 274 Scott V. Scott 221, 222 XVI TABLE OF CASES. PAOE Seaman v. Vawdry 204 Searby v. Tottenham Railway Co 200 Seddou V. Smith 15 Shaw V. KeighroD. 240 Slater v. Lawson 264 Smalpage v. Tonge 269 Smartle v. Williams 161 Smith t>. Bennett 182 V. Cofan 91 ■ V. King 161, 219 • V. Lloyd 60, 184, 196, 204 ■ V. Miller 8, 26 V. Packhurst 7 V. St. Michael 17, 18 V. Smith 252 V. Stocks 205 0. Tyndal 109 Staokpoole v. Staekpoole .... 212 Stanley v. White 14 Stansfleld v. Hobson 251, 253, 273 Stedman v. Smith 202 Stemdale v. Hankinson 269 Stocks ». Booth 17 Stokes V. Berry 112 Sturgis V. Morse 246 Sutton V. Sutton 191 Swans, Case of 56 Symonds v. Hallett 244 T. Taaffe's Estate, Re 269 Taunton v. Costar 135 Taylor v. Caldwell 18 . ■■!>. Horde.... 42, 43, 46, 51, 52, 89 . •». Parry 14 ■ V. Pendleton 19 Thomas v. Thomas 181, 182 Thompson v. Bowyer 251 Thorp V. Facey 266 Three Towns Banking Co. v. Maddever 247 Tiehborne v. Weir 273 Tinker t>. Rodwell 182 Toft V. Stephenson 248, 253 Topham v. Booth 226, 257 Tottenham «. Byrne 198 Townsend ». Townsend 216 TreTilian v. Pyne 67 Tristram v. Harte 249 Trulook V. Robey 249, 251 Trustee's Agency Co. v. Short 61, 62, 184, 196, 206, 267 Turner's Estate, Re 237 Turner v. Bennett 234 PAOE Turner v. Meymott 135 . V. West Bromwich Union 229 Tuthill V. Rogers 6, 183 Twaddle v. Murphy 214 Twiss V. Noblet 240, 241 Tyrwhit v. Wynn 1* V. Vane t). Vane 153,183,246 Vivian v. Moat 237 W. Waddington v. Naylor 203 Wade's Estate, Re 270 Walker v. Reeves 7 Wall «;. Stanwick 182 Walsh V. Lonsdale 126, 222 Walters v. Webb 190, 229 Ward V. Carttar 182 V. Macauley 8 V. Ward 14, 274 Warren v. Murray 221 Watters v. Lid will 243 Webster v. Southey 237 Weldon V. De Bathe 244 D. Neal 244,269 West, Re 250 Wheeler v, Montefiore Q>5 Whippy V. Hillary 251 Whitby V. Mitchell 296 Whitcomb v. Whiting 263 White V. Bayley 27 Whitley v. Lowe 254, 256 Whitmore v. Humphries. .289, 291 Whitton V. Peacock 229 Widdowson «>. E. of Harring- ton 221 Wilds. Holt 13 Wilkes V. Greenway 273 WilUam V. Thomas 7, 47, 50 Williams v. Bartholomew .... 285 V. Pott 241 — V. Welch 243 Willis V. Earl Howe .... 245, 246 Winder, Ex parte 281 Worssam v. Vandenbrande 58, 266 Wright ». Stavert 18 Wrixon v. Vyze 190, 270 Z. Zouoh, Lord v. Dalbiao 188 POSSESSION OF LAND. CHAPTEE I. CIVIL POSSESSION. The law of property is based upon tlie two conceptions of The right ownership and possession. OwnersHp is a right, or, more sion°^'*'^^' strictly, a collection of rights, and it carries with it the right to possess {jus possidendi), a right which can be enforced by the owner, or by a person deriving title under him, against all the world. This refers to absolute owner- ship, the dominium of Roman law, and, so far as land is concerned, to a lawful seisin in fee in English law. In English law there may also be a tortious seisin in fee which carries vrith it, as against strangers, all the rights of ownership, including the right to possess, though not as against the true owner. Possession is a matter of greater difficulty, and it has sometimes been doubted whether it is a fact or a right. Primarily possession is a fact, but mere possession frequently secures for the possessor a certain measure of legal protection, and hence it becomes the source of a right known as the right of possession {jus possessionis) . The exact nature of this right depends on the remedies granted for violations of it, and can only be stated after examination of those remedies. It is sufficient at present to say that in the Eoman law, and in the English law down to 1833, it might exist against the true owner, and hence the contrast between the right of ^ L. B •« POSSESSION OF LAND. possession and the right of property. Since 1833 it has only been possible for it to exist against strangers. More- over, possession, in addition to attracting legal protection, and so becoming the source of the right of possession, may under suitable circumstances have the further consequence that, in course of time, the right of the true owner is extinguished and the right of possession is transformed into ownership. Actual But the fact of possession does not always determine possession, the legal incidents of possession. Possession which is recognised by the law, whether for the above or any other purposes, is known as civil possession, and although ordinarily the actual and the civil possession coincide, yet the civil possession, and with it the advantages of posses- sion, may be ascribed to a person who has no actual possession. This happens in two classes of cases. The actual possession may be held by another on behalf of the civil possessor— by his servant or tenant, for example — and here the civil possession is stUl based on actual possession. Or there may be no connection at all between the civil and the actual possession, as where the actual possession is vacant, or is in dispute, or even where it is held adversely by another. Thus a civil possession, founded in the first instance on actual possession, may continue after the actual possession has come to an end, whether by mere loss of control over the thing or by the intrusion of a stranger. And so, too, before any actual possession has been acquired, civil possession may be recognised as existing ; where, for example, the actual possession being in dispute between two persons, the civil possession is ascribed 'to the one who has the better title; or where, upon the death of the possessor, the civil possession is ascribed immediately to his heir. These general remarks hold good in different degrees both of the Roman and the English law. CIVIL POSSESSION. o In the Eoman law this distinction between actual Possession possession and possession in the technical sense — we might Eoman say, between possession in fact and possession in law, but ^^' that the latter expression conveys the idea of a possession separated from possession in fact, a possession, that is, • merely in law — was well established. " Possessio" says Papinian (D. 41, 2, de poss. ; 49 Pap. 1), " non tantum corporis sed et juris est." And the two ideas were ordi- narily denoted by the expressions " t)i possessions esse" and "possessio." " Aliud est eiiini possidere, longe aliud in possessione esse." (Jto?.; lOUlp. 1.) Frequently, also, the jurists have recourse to the adjectives civilis and naturalis, though in the use of them they are not quite consistent. In general, possessio naturalis corresponds to in possessione esse.- What a slave holds, says Javolenus, as a part of his peculium, is to be regarded as possessed by his owner, because " serrits civiliter quidem piossidere non posset, sed naturaliter tenet." {Ibid. ; 24 Jav.) A slave, that is, could not possess so as to gain for himself the civil advantages of possession, though he might be the actual possessor. According to this distinction possessio civilis must be taken to denote the possession which can claim the protection of the interdicts ; and when in union with it there exist also the attributes of good faith {bona fides) and lawful title (^Justus titulus), we have the possession which could ripen into ownership by usucapion. Sometimes, however, possessio civilis seems to have denoted possession of the latter kind only, and then, in contrast to it, p)ossessio naturalis was used of interdict possession. (D. 43, 16, de vi ; 1 TJlp. 9 ; and see the matter discussed by Savigny, Possession, Sir Erskine Perry's Translation, 38.) But this is merely a question of nomenclature. The important point is, that the possession recognized by the law {pos- sessio civilis OT possessio simply), to which were ascribed the b2 4 POSSESSION OF LAND. advantages either of protection and usucapion, or of pro- tection alone, was distinguished from actual possession {possessio nat lira/is, in possessione esse). It is sometimes conyenient to denote this actual possession by the term " detention " in the case of goods, " occupation " in the case of land. Separation The separation of the civil from the actual possession and actual Occurred chiefly where the actual possession was held on possession, j^gj^g^^f ^f ^^ person claiming as owner by one either deriving title under him, or acting as his agent ; for, in general, the Eoman law allowed civil possession only to the person who claimed to be the owner. The tenant of land, the bailee of goods, were in possessione merely, and could not make use of the interdicts. (D. 41, 2, de poss. ; 19 Marc, pr ; 43, 16, de •«•; 1 Ulp. 10; 43, 17, uti poss.; 3 Ulp.- 8.) "Where the claimant was in possession neither by himself nor by a person representing him, he could not, as a rule, be credited with the civil possession. Thus, there was no doctrine that in cases of disputed possession the possession followed the title ; or that, upon the death of the possessor, the civil possession devolved upon his heir. In the case, however, of the entry of a stranger during the absence of the possessor, although he gained actual possession, the former possessor retained the civil possession until he had notice of the intrusion, and failed to effect a re-entry. Possession In English law civil possession takes two forms, seisin law.°^'^ and possession, and the legal advantages of possession are divided between the two. As to the protection of posses- sion — that is, the granting of possessory remedies — it is necessary to distinguish according as the object of the remedy is to maintain or recover possession. The action of trespass, which is ordinarily for the maintenance of possession, is founded upon possession merely. The old possessory actions, which were for the recovery of posses- CIVIL POSSESSION. 5 sion, were founded upon seisin. The modern action of ejectment, too, is in strictness founded upon seisin, and the plaintiff must prove his title to the freehold or to an interest under the freeholder. But there is authority for saying that it lies in favour of a mere possessor who has been forcibly dispossessed. As to the acquisition of ownership by lapse of time, this effect was formerly ascribed only to seisin. To make the Statute of Limitations run, there must have been a possession adverse to the title of the true owner, and, practically, this meant that the owner was disseised, and that a fresh seisin had been acquired by the possessor. Now, however, the law is different. Adverse possession in this sense is not required. Definite rules have been established for fixing in most cases the date when the owner's right of entry is to be deemed to have accrued, and when, therefore, the statute begins to run ; and although a person in whose favour the statute is running is frequently seised, he may acquire the owner- ship on mere possession unaccompanied by seisin. This happens, for instance, in the case of a tenant at will who has occupied for more than a year without renewal of his tenancy, or a tenant for years who holds over after the expiration of his term. The separation between civil and actual possession, and Seisin in .the circumstances under which this may take place, are inlaw, illustrated by the doctrines and nomenclature of seisin. Like the possessio of the Eoman law, seisin is ascribed only to a person who possesses as owner (cf. Darics v. Lowndes, 1838, 5 Bing. N. 0. p. 173)— in the language of English law, as freeholder — and it is ascribed to him, whether he is himself in possession, or whether a tenant is in possession on his behalf. In either case the seisin is based upon actual possession, and it is a seisin in deed as opposed to the seisin in law presently to be mentioned. " Seised," POSSESSION OF LAND. says Lord Coke (Oo. Litt. 243 a), is where a man is " actually seised, either by entry, or by the possession of his lessee for years or the like." But seisin by no means requires the existence of an actual exclusive possession as its basis. Entry upon land by a person entitled to the freehold immediately vests in him the seisin — that is, the actual seisin, the seisin in deed — although a stranger is in possession whom he has not succeeded in excluding. (Litt. s. 417.) And formerly an actual entry, an entry in deed, was not essential. If a man dared not enter for fear of injury, it was sufficient for him to go as near the land as was feasible and make his claim. This was an entry in law, and effectually vested the seisin in him. (Litt. s. 419 ; Oo. Litt. 253 b.) And when seisin has once been acquired, the law favours alike its continuance in the person seised, and its devolution upon his heir. He may be deprived of it by disseisin, but disseisin is a fact which is not readily presumed ; and upon his death, if he is then seised and no stranger enters, the law ascribes seisin at once to the heir. Where the possession is vacant, this is termed a seisin in law (Litt. s. 448) ; where, however, a tenant is in possession it is a seisin in deed. (Co. Litt. 15 a, 243 a ; GoocUitJe v. Newman, 1774, 3 Wils. 616 ; Busliby V. Dixon, 1824, 3 B. & C. 298 ; TuthiU v. Rogers, 1844, 1 Jo. & Lat. p. 76 ; LyeU v. Kennedy, 1889, 14 App. Gas. p. 456.) In the same way in the case of a devise, seisin in law is ascribed to the devisee before entry. (Co. Litt. Ilia.) Where the person dying seised had a particular estate, seisin in law is ascribed to the remainderman. But in the case of alienation no seisin vested in the alienee by the mere grant or feoffment. The transfer had to be completed by livery of seisin, and the transferee became thereupon seised in deed. If upon a feoffment without livery the feoffee entered, he took no freehold estate, but CIVIL POSSESSION. 7 became tenant at will to the feoffor. (Litt. s. 70 ; Boe v. Cleveland, 1829, 9 B. & C. p. 871.) In the case of a convey- ance by fine, indeed. Lord Coke considered that the conusee got at once a freehold — that is, a seisin — in law. (Co. Litt. 266 b.) But the opinion is based on the notion that a fine operated as a feoffment of record, a view of the nature of a fine which was disputed by Willes, L.C.J., in Smith V. Packhurst (1741, 3 Atk. p. 141 ; see argument in WiUiam v. Thomas, 1810, 12 East, p. 147) . By 8 & 9 Yict. c. 106, s. 2, formal livery of seisin was rendered unnecessary, and now a grant of a freehold interest by deed, followed by entry, effectually vests the seisin in the grantee. When we come to possession, by which is to be understood Possession the possession which is protected in trespass, we still find trespass, the civil possession upon occasion separated from the actual possession, but there is a greater tendency to make the two coincide. Except where possession is held by a servant, the civil possession is ascribed to the actual possessor ; and it is not capable of devolution on death or of assignment i7iter vivos. The heir cannot maintain trespass till entry (Com. Dig. tit. " Trespass," B. 3), though then, under the doctrine of trespass by relation, he can recover damages for trespass previously committed ; and, similarly, as to an executor. And although for some purposes a cestui que use under the Statute of Uses is held to be in actual possession {Eeelis v. Blain, 1864, 18 C. B. N. S. 90; SadfielcVs Case, 1873, L. E. 8 C. P. 306), yet this is not a possession in respect of which, without actual entry, he can maintain trespass. {Geary v. Bearcroft, 1667, Carter, 67.) So, again, although in Walker v. Reeves (1782, 2 Doug. 461 n.) Lord Mansfield said that by the assign- ment of a term, the title and possessory right passed, and the assignee became possessed in law, yet it is clear that, before he has entered, he cannot maintain trespass. (Of, ° POSSESSION OF LAND. Cook V. Harris, 1699, 1 Ld. Eaym. 367.) On the other hand, where there is a dispute as to possession, and neither party can be said as against the other to have actual posses- sion, the law ascribes the civil possession to the one who has the better title. And further, when civil possession has once been obtained, it appears that the law, as a general rule, regards it as continuing, whether or no there is actual possession, until it is definitely put an end to, as by abandonment or dispossession. Construe- It has just been mentioned that the assignee of a term, Bession of although he is said to be possessed in law, has no posses- goods. g^Qjj -jj pespeot of which he can maintain trespass. With respect to goods the law is less exact, and the property in the goods, provided it is accompanied by an immediate right to possession {Ward v. Macauley, 1791, 4 T. E. 489), is said to draw after it the possession. The owner has a constructive possession in virtue of which he can sue in trespass. {Smith v. Miller, 1786, 1 T. E. at p. 480 ; cf. Blackburn on Sale, 2nd ed. 333.) But "possession in law," or " constructive possession " of this kind has no part in the theory of possession proper. It is simply a means of conferring on the person entitled the right to sue as though he were actually in possession. In other words, it gives him the benefit of possessory remedies. (Pollock & Wright on Possession, 25, 27, 145.) CHAPTEE II. THE NATURE OF CIVIL POSSESSION. Possession, it is ordinarily said, consists of two elements, The ele- an element of physical control and an element of intention ; possession. and both, must be present at the commencement of posses- sion. " Api&cimur possessionem corpore et animo, neque per se animo autp>er se corporeP (D. 41, 2, de poss.; 3 Paul. 1.) These two elements constitute the state of actual posses- sion. (Cf. L. Q. E. Yol. VI. 261.) Mere casual control is not sufficient. There must be physical control, and also an intention to possess. A vagrant who spends the night in an empty house is not in possession of the house, nor is a customer who takes up a ring in a jeweller's shop for the purpose of examining it in possession of the ring. But Savigny makes a special use of the element of intention, and he distinguishes civil from natural jDOSsession by saying that for civil possession there must be an animus domini, an intention to possess as owner. Ihering, on the other hand, affirms that the nature of the intention is not material, and that civil possession depends on the character ia which the possession is held. Actual possession, he says, is always taken to be civil possession, unless there is a causa possessionis such as to exclude civil possession. This latter theory appears to adapt itself more readily than Savigny's to the facts of the Eoman law, and it is approximately correct in regard to English law. Seisin is in general credited to the actual possessor, unless it appears that he holds in some character which is incompatible with 10 POSSESSION OP LAND. seisin. He cannot be seised, for instance, if lie is tenant for years. Possession for trespass is credited to the actual possessor, unless he holds in the character of servant. Seisin, however, is not merely civil possession ; it impHes a title as owner, de facto at least if not de jure, and if it appears that the seisin in fee — that is the legal estate — ^has been in a third person, from whom it has not been got in by conveyance or otherwise, the possessor is not seised unless he can establish a disseisin, and for this purpose he must show an intention, express or implied, to hold adversely to the former freeholder. Practically this is Savigny's animus domini. But for the purpose of a general statement of the nature of possession, it is con- venient, and perhaps sufficiently accurate, to say that actual possession is deemed to confer civil possession — whether possessio, seisin, or trespass-possession — unless the possessor holds in a character which disqualifies him. Eemembering then that actual possession depends on the two elements of physical control and intention, there are three points to be considered — physical control, intention, and the character in which the possession is held. 1. The Element of Physical Control. Control by The physical element in possession consists in the exercise owner- oi control by the possessor to the exclusion of other persons, ship. There are thus two sides to it, a positive and a negative side. This is recognised by Savigny, who defines the physical element as " the physical power of dealing vrith the subject immediately, and of excluding any foreign agency over it " (Poss. 147) ; but the definition is in each part open to criticism. An immediate power of dealing with the thing is a necessary but not a sufficient test of possession. A man who sees a jewel lying on the ground THE KTATUEE OP CIVIL POSSESSION. 11 Las the immediate power of dealing with it ; but till he has exercised that power there is no possession. Every passer-by has the power of using a piece of vacant land, but it is only he who enters and does use it who gains possession. The power of dealing with the thing only confers possession when such power has been exercised, or in some way made manifest, and inasmuch as the person exercising such power is ordinarily the owner, we have the practical rule that possession is shown by the exercise of acts of ownership. This is recognised in the Code, where the expression "omnia iit dominum gessisse" is used to ex- plain the meaning of in. jMSsessione (C. 7, 32, de poss. 2 ; of. Pollock & Wright on Poss. 30) ; and it is at the root of Ihering's explanation of possession as the realization of ownership. (" T/iafsdchlicIiIicit des Eigenthtims" Grund des Besitzes-Schutzes, 2nd ed. 179, 193.) Moreover, as to the latter part of Savigny's definition, it Power of has been objected that the requirement of a power to exclude foreign agency goes too far. It is sufficient if no foreign interference has in fact taken place. " It is not necessary," says Windsoheid (Pand. Eechts. 2nd ed. sect. 153, n. (3)), "that the possessor should be more powerful than any stranger who may desire to appropriate the thing for himself, but that at the present moment no foreign power should exclude his own." Mr. Justice flolmes attempts to supply the necessary qualification by saying that the power of exclusion must be manifested. " "We must bear in mind that the law deals only, or mainly, with manifested facts ; and hence, when we speak of a power to exclude others, we mean no more than a power which so appears in its manifestation." (Common Law, p. 234.) And he instances the case of a powerful rufiian being within equal reach and sight when a child picks up a pocket book. " If he does nothing, the child 12 POSSESSION OF LAND. has manifested the needful power as well as if it had been backed by a hundred policemen." But it may be doubted whether the child has manifested any power of exclusion at all. He acquires control of the pocket book before the ruiSan interferes, and it seems better to rely upon this actual absence of interference, than to mention a power of exclusion which inevitably suggests power to exclude in the future. The physical element in possession may be said then to consist, positively, in the exercise of control by the possessor, and, negatively, in the exclusion of others. Control is shown by acts of ownership, and in ascertaining whether in any given instance possession of land can be proved, we must inquire (1) whether the alleged possessor is exercising suitable acts of ownership ; (2) whether other persons are excluded. We are speaking now of the mere fact of possession, apart from any question of the con- tinuance or transfer of a possession once established. (i.) Acts of Ownership. Acts must Acts of ownership are such acts as would ordinarily be te suitable to the done by an owner m possession, and they vary according to the nature of the land. "By possession is meant possession of that character of which the thing is capable." (Per Lord Fitzgerald, in Lord Advocate v. Young, 1887, 12 App. Cas. p. 656 ; Pollock & Wright on Poss. 31.) Hence, acts of slight importance, such as the gathering of sea-weed, the taking of shell-fish, and the planting of stakes for fishing-nets, are often conclusive in claims founded on the alleged possession of foreshore. This seems to be the case, however, only in favour of persons who, by reason of ownership of the adjacent land, may probably be entitled to possession. It is a question of the boundaries of the manor abutting upon the sea-shore. THE NATURE OF CIVIL POSSESSION. 13 Persons having no sucli probable title could, it is con- ceived, only gain possession by substantial acts of owner- ship, such as the erection of buildings or the reclamation of the shore. Acts of ownership done on one part of a defined area are Area of evidence of possession of the whole, provided the locality P°^^®^^'°'^' is such that it is a reasonable inference that the owner of the one part is the owner of the whole. " Ownership," said Parke, B., in Jones v. Williams (1837, 2 M. & W. p. 331), "may be proved by proof of possession, and that can be shown only by acts of enjoyment of the land itself ; but it is impossible in the nature of things to confine the evidence to the very precise spot on which the alleged trespass may have been committed ; evidence may be given of acts done on other parts, provided there is such a com- mon character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury that the place in dispute belonged to the plaintiff if the other parts did." In Lord Advocate v. Lord Slant y re (1879, 4 App. Gas. p. 791), Lord Blackburn referred to Baron Parke's statement of the law with ap- proval, and observed : — " All that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract ; provided there is such a common character of locality as would raise a reasonable inference that if [the claimants] possessed one part as owners they possessed the whole." (Of. Wild v. Holt, 1842, 9 M. & W. 672 ; Bristow V. Cormican, 1878, 3 App. Oas. p. 670 ; Clark v. EliMnstone, 1880, 6 App. Gas. p. 170.) The inference will easily be made when the acts are Asoertain- done within an inclosed area. "In ordinary cases to area. prove his title to a close, the claimant may give in evi- dence acts of ownership in any part of the same inclosure ; for the ownership of one part causes a reasonable inference 14 POSSESSION OF LAND. that the other belongs to the same person." (Per Parke, P., in Jones v. Williams, supra ; of. Tyrwhit v. Wynn, 1819, 2 B. & Aid. 654.) And so where the acts of ownership themselves map out an area. In this manner an irregularly shaped piece of foreshore was held by the House of Lords to be parcel of a manor in Attorney-General v. Emerson ( (1891) App. Oas. 649, but the facts on this head are not reported). But the land may be merely defined physically, as where it is woodland, the acts being done in some part of the wood {Stanley v. Wliitc, 1811, 14 East, 332) ; and the possession of inclosed land has been held to carry with it possession of an adjoining uninclosed wood. {Penii r. Preston, referred to in Bigelow's Leading Cases on Torts, 356.) Where land is held under a documentary title, a different principle comes in, and, if the title is good, the possession may be co-extensive with it. Hence possession of part of the mines comprised in a lease gives possession of the whole. {Taylor v. Parry, 1840, 1 Man. & Gr. 604.) (ii.) Exclusion of Others. Possession Not only must the alleged possessor exercise acts of exclusive, ownership over the land, but other persons must be ex- cluded. Phires eandem rem in solidum possidcre non possunt (D. 41, 2, de poss.; 3 Paul. 5; cf. Sav. Poss. 112). In English law, however, the rule only requires that there should be no other person exercising acts of ownership or claiming possession adversely to the possessor. Two per- sons may jointly exercise acts of ownership, and they may thus gain a possession which vests in them an estate as joint tenants ( Ward v. Ward, 1871, L. P. 6 Oh. 789 ; ef . Litt. s. 311) ; but in such a case there is reaUy only one possession, and the possessors enjoy together the rights which flow from it. It is different where there are two THE NATUKE OF CIVIL POSSESSION. 15 persons on land, each claiming possession independently of the other, and then neither can acquire actual possession without excluding the other (of. Holmes, Common Law, 235, referring to McGahnj y. Moore ; Barnstable v. Thacker, Big. L. 0. in Torts, 353). The question whether foreign interference is to be deemed ^a<=*' °* exclusion to be in fact excluded is somewhat more difficult in the case of land than of goods. In the case of goods, as a rule both the original act of appropriation and the existing custody are such as obviously to exclude others, but with land it is diflferent. The possessor may be absent from the land, and other persons may be upon it. The practical rule appears to be that the area of the alleged possession must be marked out, and that there must be an habitual observance of its limits by the world at large. (Of. Pollock & Wright on Poss. 13.) Ordinarily, as just stated, the area of possession is marked out by means of fences or other actual barriers which are themselves likely to keep away intruders. Inclosure is the strongest possible evidence of adverse possession. [Seddon v. Smith, 1877, 36 L. T. 168.) "If," said BramweU, L.J., in Coverdale v. Charlton (1878, 4 Q. B. D. at p. 118), "there were an inclosed field, and a man had turned his cattle into it, and had locked the gate, he might well claim to have a de facto possession of the whole field ; but if there were an uninclosed common of a mile in length, and he turned one horse on one end of the common, he could not be said to have a de facto possession of the whole length of the common." But such methods of exclusion are not necessary (Seddon v. Smith, supra), and there may well be possession of an uninclosed tract of land, provided its area can be defined, and its limits have been in fact respected. On the other hand occupation, even of an inclosed space, is not sufficient to give exclusive possession, if the ocoupa- 16 POSSESSION OP LAND. tion is merely temporary and occurs in the absence of other persons who are accustomed to use the premises. In Revett V. Brown (1828, 5 Bing. 7), the key of a chapel, in which diiferent persons were accustomed to officiate, was de- livered to the plaintiff that he might preach there. After- wards he locked the chapel and refused to give up the key. The chapel was broken open by the order of the defendant. It was held that the plaintiff had not obtained a possession entitling him to sue in trespass. " If," said Park, J., " the plaintiff had enjoyed the constant and exclusive use of the chapel, the case might have been difierent ; but the key was delivered . . . with permission to allow the plaintiff to preach, and many others preached there also. This was not sufficient evidence of possession to go to the jury." ■Weigtt The principle that the exclusion of other persons must owner- be habitual, and not casual merely, is of importance with snip. reference to the weight to be attached to acts of ownership. These have a double effect. They not only show the actual control of the person doing them ; they also tend to secure the exclusion of others, whether strangers or persons who, from the contiguity of their property, might be supposed to have adverse claims. But with regard to the latter class it cannot be said that they are definitely excluded by the mere exercise of acts of ownership of which they have no knowledge, unless, indeed, these involve the exclusive occupation of the ground in dispute. Hence, while as against mere strangers acts of ownership easily esta- blish possession, as agaiust persons interested to dispute them they are of less weight when done in their absence. {Jones V. Williams, 1837, 2 M. & W. p. 332.) " The weight of each act as evidence depends on the circumstances ; one very important circumstance as to the weight being whether the act was such and so done that those who would be interested in disputing the ownership would be aware of THE NATURE OP CIVIL POSSESSION. 17 it." (Per Lord Blackburn, in Lord Advocate v. Blantijre, 1879, 4 App. Gas. p. 791.) It follows from the principle in question that an occupa- Cases of tion, or the exercise of acts of ownership, either of which exclusive by itself might be sufficient to establish possession, fails of P°^^^'*^^ "• this effect if it occurs in pursuance of a right which does not involve exclusive possession. The possession is in some other person who is actually present, or who will probably from time to time enter. In Deaii^. Hogg (1834, 10 Bing. 345), the hirer of a steamboat was held to have no posses- sion to justify the removal of an intruder, so long as the owner's captain and crew remained on the boat for the purpose of navigating it. (Of. Holmes v. Bagge, 1853, 1 E. & B. 782.) And under various circumstances a man may be entitled to the occupation of a room or other place, while at the same time there is no such complete exclusion of the owner as to confer on him the exclusive possession. This is the case with regard to a guest at an inn (per Maule, J., in Lane v. Dixon, 1847, 3 C. B. p. 784), although he has a separate room ; a passenger in a ship who has a separate cabin [Smith v. >S'^. Michael, Cambridge, 1860, 3 E. & E. 383) ; and a pew-owner in a church, the possession of the church being in the parson {Stocks V. Booth, 1786, 1 T. E. 428 ; cf. Allan v. Liverpool, 1874, L. E. 9 Q. B. 180). And although the pasturing of cattle is an act of ownership from which possession may be inferred {Lord Advocate v. Blantyre, 1879, 4 App. Oas. p. 798), the inference is rebutted if it is shown to be done in exercise of a right of cattlegate, not requiring exclusive possession. {Rigg v. Earl of Lonsdale, 1857, 1 H. & N. 923.) The principle that possession must be exclusive is Lodgers, illustrated by the case of lodgers. (Cf. Clerk & Lindsell on Torts, 264.) "Where the contract is merely for board and lodging, the lodger becomes an inmate of the house. 18 POSSESSION OF LAND. witJi no right to the exclusive occupation of any part of it. ( TFrigM v. Stavert, 1860, 29 L. J. Q. B. 161.) If the contract is for the hire of particular apartments, it is necessary to inquire whether the duty of attending to them devolves on the occupier of the house. If so, his presence, or the presence of his servants for this purpose, prevents the occupation of the lodger from being exclu- sive. The question was considered and thus decided in Smith V. St. Michael, Cambridge (1860, 3 B. & E. 383), a rating case ; and in the similar case of Allan v. Liverpool (1874, L. E. 9 Q. B. p. 191), Blackburn, J., after observing that occupation for rating purposes must be exclusive in the same sense as possession for trespass, said : " A lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be there, and though his goods are stowed there, yet he is not in exclusive occupation in that sense, because the landlord is there for the purpose of being able, as land- lords commonly do in the case of lodgings, to have his own servants to look after the house and the furniture, and has retained to himself tlie occupation, though he has agreed to give the exclusive enjoyment of the occupation to the lodger. Such a lodger could not bring ejectment or trespass qiiare clausiim fregit, the maintenance of the action depending on the possession." (Of. Cory v. Bristoiv, 1877, 2 App. Oas. p. 276.) Where, however, the lodger hires separate apartments and takes care of them himself, it appears that he has the exclusive possession. {Lane v. Dixon, 1847, 3 C. B. 776.) Licensees. Similar considerations apply in distinguishing between a lease and a licence. For an instrument to operate as a lease it must confer a right to the exclusive possession of the premises. In Taylor v. Caldwell (1863, 3 B. & S. p. 832) the proprietors of pleasure gardens purported to let them for a series of concerts to be given on specified THE NATURE OP CIVIL POSSESSION. W days, themselves, however, providing bands and entertain- ments. It was held that they did not intend to part with the exclusive possession, and there was therefore no lease. A similar result followed in Hancock v. Austin (1863, 14 C. B. N. S. 634), where the owner of a factory let standing room for lace machiaes. The owner was to provide steam power, and he reserved to himself the right of entry for the purpose of attending to his machinery. Persons who occupy under such agreements occupy as licensees, and not as tenants. The distinction is sometimes used to assist the decision of rating cases. An agreement giving exclusive possession operates as a lease, and occupation under it niakes the lessee liable to be rated {Taylor v. Overseers of Pendleton, 1887, 19 Q. B. D. 288). But an agreement under which the owner retains the control of the premises is only a licence, and he retains also the liability for rates. {L. 8{ N. W. Ry. Co. v. Buckmaster, 1879, L. E. 10 Q. B. 70.) On the other hand an owner, who reserves merely the Cases 1 • in • °* exolu- right to enter and inspect, does not thereby retain posses- sive pos- sion, if the purpose for which he has given the use of the ^^ land does practically require exclusive occupation. In Roads V. Trumpington (1870, L. R. 6 Q,. B. 56), it was agreed between A. and B. that A. should enter on B.'s land, and there dig for coprolites in a specified manner. There were no express words giving a right to the exclusive occupation of the land ; but the excavations and works contemplated by the agreement required a constant occu- pation of the land by A. untiL the coprolites were raised. B. reserved to himself the right of going upon the land for the purpose of inspecting the works, but he was not required by the agreement to do anything upon the land. It was held that A. had exclusive occupation and was liable to be rated. And though the use of land for a limited purpose does not in general confer exclusive possession, it has, c2 20 POSSESSION OF LAND. nevertheless, been in some cases held to give possession for trespass. The grantee of the herbagium, or vestura terrce, for instance, who has an exclusive right to enter upon the land for the purpose of taking the growing crop, may, after entry, maintain trespass. (Co. Litt. 4 b. ; Croshy v. Wadsworth, 1805, 6 East, 602 ; of. Eanxr v. Charlestoorth, 1825, 4 B. & 0. 574; Dyson v. CoUick, 1822, 5 B. & Aid. 600.) Exclusion But the requirement of absence of interference on the need not always be part of strangers is not to be pushed to an unreasonable a so u e. g-^^jgj^^^ ^jj(j ^j^ some cases, particularly in those relating to possession of foreshore, it is recognized that really exclu- sive possession is not in practice attainable. " In esti- mating," said Lord Watson, in Lord Advocate v. Young (1887, 12 App. Cas. 644), "the character and extent of [a riparian proprietor's] possession, it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strict sense of the term, exclusive. The proprietor cannot exclude the public from it at any time, and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the right." 2. The Element of Intention. Savigny The second element in possession is the intention of the mimtis possessor. The nature of this intention has been the domim. subject of great controversy, especially among writers on the Roman law, but the difficulty seems to have been chiefly caused by the endeavour already noticed, to make the intention the test of civil possession. Savigny lent his support to the theory that the possessor must have an animus domini — an intention to possess as owner ; and this does in general mark out the extent of civil possession in THE NATURE OF CIVIL POSSESSION. .21 the Eoman law. The tendency was to allow such posses- sion to those who possessed as owners, but to deny it to the tenant of land and the bailee of goods. In certain cases, however, possession was allowed to persons who held by a title inferior to ownership. To speak only of land, the tenant at will {precario fenens) and the tenant under a perpetual lease {emphyieuid) were recognized as having civil possession, although they had no intention of possessing as owners. To maintain the uniformity of his system Savigny explained these, and the similar cases as to goods, by the doctrine of derivative possession; by assuming, that is, that the owner was permitted to transfer to the tenant or bailee, not only the actual possession of the land or goods, but also the civil posses- sion, while himself retaining the animus doniini. It has been objected, however, that this is merely a fiction designed to conceal the fundamental error of his system. Possessio did not depend on an animus domini. A theory more in accordance with the facts was Intention suggested by Ihering, of whose work, Der Besitzwillc, an eient'tejt account has been given by Mr. Bond. (L. Q. E. Yol. VI., °* ''"^. o J \ ' possession. p. 259.) Ihering saw that in practice the nature of the animus possidendi is no test of civil possession. Indeed, the element of intention rarely comes in question in con- _ troversies touching the possession. An intention to possess is a necessary element, but in general the intention suffi- ciently appears from the facts relied upon to show physical control. When such control is established, the civil pos- session does not depend on the nature of the intention, but, as stated above, on the character in which the occupier claims to possess, on the causa possessionis. Hence Ihering's rule that detention is to be taken to be possession — that is, civil possession — unless one of the caicsw excluding posses- sion is proved. Thus the tenant and bailee are refused aS POSSESSION OF LAND. the protection of the interdicts, not from any defect in their intention to possess, but because the causa possessionis is one with which the law refuses to associate civil possession. This leaves us at liberty to examine into the nature of the animus possidendi without being under the necessity of defining it in such a manner as to make it the test of civil possession. As we have seen, the element of physical control has two sides, the actual exercise of control and the exclusion of strangers. The required intention may in the same way be presented under two aspects — an intention to have physical control, and an intention to exclude strangers. The former is the animus possidendi of Eoman law ; but recent writers have preferred the nega- tive aspect, and, notably, Mr. Justice Holmes replaces by it the animus domini of Savigny. The intent which the law requires, he says, is an intent to exclude others (Common Law, p. 220) ; though, he adds, this need not extend to the exclusion of the owner, for a bailee, who has no such intention, nevertheless has possession. "If a bailee intends to exclude strangers to the title, it is enough for possession under our law, although he is perfectly ready to give the thing up to its owner at any moment." {Ibid., p. 221.) Intention If this is taken as a test for civil possession in English law it goes too far. A servant or bailiff has an intention to exclude strangers to the title, but he has no possession for trespass. Mr. Justice Holmes {ibid., p. 227) treats this case as an exception standing on purely historical grounds. Sir Frederick Pollock allows for it by altering the definition into an intention to exclude others " on one's own account and in one's own name." (Pollock & Wright on Poss. p. 17.) For trespass-possession this is sufficient, but in dealing generally with forms of civil to exclude. THE NATURE OF CIVIL POSSESSION. 33 possession, it is, perhaps, better to define the intention less strictly, and, in the manner suggested above, to look also at the character of the possession. The intention is simply an intention to possess, and has two sides corresponding to the two sides of the physical element in possession. It is an intention at once to exercise control and to exclude strangers, although sometimes one aspect, and sometimes the other is more prominent. Intention to possess being thus one of the facts on which Cases actual possession, and with it civil possession is founded, it intention follows that if from any cause it cannot exist, the civil g^g°°* possession is not complete. In the Eoman law this circumstance is frequently remarked. An infant can only acquire possession when his lack of understanding is supplied by the sanction of his guardian (D. 41, 2, deposs. ; 32 Paul. 2) ; a lunatic can hold a thing, but he cannot begin to possess for want of intention {ciffectio tcnendi, ibid. ; 1 Paul. 3) ; a municipality cannot possess, because its members, so it is said, cannot have a common intent. {Ibid. ; 1 Paul. 22.) But in the case of the infant, it was objected that possession is matter of fact, not of law, and Paulus allows that he may possess, if he is of an age to understand what he is doing. {Ibid. ; 1 Paul. 3.) The natural way to overcome difficulties of this kind is Difficulty to allow the acquisition of possession by an agent to enure by doo- to the benefit of the principal, but, according to the theory ^"enoy. of the Eoman law, not only was a relation of agency or other proper relation, such as that of father and son, master and slave, necessary for this purpose, but the principal must himself also have an intention to possess, express or implied. {Ibid. ; 1 Paul. 5 ; 44 Pap. 1.) In other words, the physical control and a certain measure of intent {intelledus possidendi, ibid. ; 1 Paul. 9) are in the agent ; the real animus possidendi is assumed to be in the :24 POSSESSION OF LAND. principal. Ordinarily this is so. A man wlio directs his servant or an agent to accept delivery of a thing has the intention to possess, and this, together with the subsequent actual acquisition by the agent, forms a sufficient basis of fact to give rise to civil possession. But it seems better to regard the actual possession as depending solely on the control and intention of the servant or agent ; and where the law refuses him the civil possession, this is ascribed to his master or principal on the ground that the servant or agent was acting within the scope of his authority. In practice the Roman law seems to have adopted this view. A slave could acquire possession in connection with his pecuimm for an infant or a lunatic (ibid. ; 1 Paul. 5 ; 32 Paul. 2), and, according to one opinion, a municipality could acquire possession either by a free agent or a slave. (Ibid. ; 2 Ulp.) In English law there is no difficulty in attributing the advantages of possession to the person for whom it is in fact held, without reference to any knowledge or intention in him. The possession of the tenant gives seisin in deed to the unknown heir {Lyellr. Kennedy, 1889, 14 App. Cas. p. 456), and the possession of the servant or bailiff enables his master to maintain trespass. Evidence The existence of an intention to possess usually appears tion. from the acts of physical control, and the character in which they are done. When a friend comes upon my land to visit me, the want of iatention to possess is clear (D. 41, 2, deposs.; 41 Paul.) ; and so when an auctioneer enters for the purpose of selling the land or the fixtures upon it. (Davis v. Banks, 1849, 3 Ex. 435.) When a man enters under a lease it is equally clear that he does intend to possess. Hence, as already observed, the existence of the intention seldom comes into question. Sometimes, however, the character in which an entry is made or an act done is pri/nd facie doubtful, and the doubt THE NATUEE OF CIVIL POSSESSION. 25 must tlien be removed either by express declaration of intention, or by substantial acts of ownership from which the intention can be inferred. " It is not necessary," said Tenterden, C.J., in Butcher v. Butcher (1827, 7 B. & C. p. 402), "that the party who makes an entry should declare that he enters to take possession. It is sufficient if he does any act to show his intention." Thus, where there is a tenancy at will, a mere entry by the landlord does not amount to a resumption of possession, so as to terminate the tenancy. He must do some act signifying his inten- tion to have the land again under his control. {Randall v. Stevens, 1853, 2 E. & B. 641.) And a person exercising acts of ownership over land without title will not gain possession as against the owner, unless they are done with the intention of infringing the owner's right. [Leigh v. Jacli, 1879, 5 Ex. D. per Cockburn, C.J., p. 271.) As to movables, the requirement of intention does not As to appear to be so strict, and the person in whose house or mecSic^^' upon whose land chattels may happen to be is, in the mtention absence of any other possessor, readily credited with the dispensed possession of them. In such a case he has already the intention of excluding others from the house or land, and this general intention, it has been said, is sufficient to con- stitute cle facto possession. (Pollock & Wright on Pos- session, 41.) At any rate, the existing exclusion of strangers from the place where the thing is may give possession in law of the thing, although the possessor is ignorant of its existence. {Reg. v. Roive, 1859, Bell's 0. C. 93; Elwes v. Brigg Gas Co., 1886, 33 Oh. D. 562; of. Holmes, Common Law, 223.) Some of the cases, however, which might be expected to illustrate this doctrine, depend on the rule that the right to possess draws after it a constructive possession, which is sufficient for trespass to movables, and hence the actual possession does not come in 26 POSSESSION OP LAND. question. This is so in the ease of wrecks and estrays, where the lord of the manor or the Grown have a right to possession or a special property in the goods. {Smith v. Miller, 1786, 1 T. E. at p. 480 ; Bailiffs of Dunwich v. Sterry, 1831, 1 B. & Ad. 831.) And the ownership of the foreshore has been held to give the property in sea- weed directly it touches the shore. {Brew v. Karen, 1877, 11 Ir. E. 0. L. 198.) The Eoman law adhered more strictly to theory, and required in the case of movables in houses or on land a specific intention. (D. 41, 2, de pass. ; 3 Paul. 3.) 3. Ohaeactbk in which Possession is held. Characters When actual possession has been established by proof of possessbn. the requisite physical control and intention, it is necessary further to have regard to the character in which the actual possession is held. Possession held in certain characters is civil possession ; held in others it is not. Possession by an owner or a tenant at will in Eoman law gave possessio ; not so possession by an ordinary lessee. Possession by the freeholder in English law gives seisin ; not so possession by a copyholder, tenant for years or otherwise, or bailiff. Possession by any person gives trespass-possession, unless he is a bailiff or servant. The general rule is that actual possession is taken to be also civil possession, unless held in one of the characters which exclude the particular civil possession in qiiestion. In English law the ordinary ground for excluding the possessor from seisin is that he is merely a tenant, whether for years or otherwise. The possession of the tenant, it is sometimes said, is the possession of the landlord. {Saunders V. Lord Annesky, 1804, 2 Soh. & Lef. p. 98 ; Archbold v. Scully, 1861, 9 H. L. 0. 380.) More correctly, the posses- THE NATURE OP CIVIL POSSESSION. 2^7 sion of the land is in the tenant ; the seisin or possession of the freehold in the landlord. {Bernj v. White, 1662, 0. Bridg. 92.) The tangible mark of seisin under such cir- cumstances is payment of rent under a lease, and seisin is proved, therefore, by the production of leases and proof of receipt of rent under them. {Bristow v. Cormican, 1878, 3 App. Cas. 653.) So it has been said that actual posses- sion clothed with the receipt of the rents and profits is the highest instance of the equitable seisin which may exist when the legal estate is outstanding. (Casborne v. Scarf e, 1737, 1 Atk. 603.) Mere possession, however, is prima facie evidence of seisin in fee (Feaceahle v. Watson, 1811, 4 Taunt. 17 ; Asher v. Whitlocl; 1865, L. E. 1 Q. B. p. 6), though the presumption may be rebutted by showing an actual title in the possessor which excludes the freehold, and also, as pointed out above (p. 10), by proof that the legal estate is outstanding. (See Doe v. Barnard, 1849, 13 Q. B. 945.) The case of trespass-possession presents no difficulty. Posseesion Here the actual possession confers upon the possessor the trespass, civil possession also, save only where the actual possessor is a servant (Bertie v. Beaumont, 1812, 16 East, 33), or a person who is in the position of a servant and has no independent possession on his own account. (Wliite v. Bayktj, 1861, 10 C. B. N. S. 227 ; llai/Iicw v. Sutfle, 1854, 4 E. & B. 347.) And, so long as the relation of master and servant is maintained, the servant has no possession in favour of which the Statute of Limitations will run as against the master. {Moore v. Boherfij, 1843, 5 Ir. L. E. 449 ; of. Allen v. England, 1862, 3 F. & F. p. 51, note.) 28 POSSESSION OF LAND. CHAPTER III. THE ACQUISITION AND LOSS OF CIVIL POSSESSION. Change of It has been obseryed above that the civil possession is separated from the actual possession in two distinct classes of cases. The actual possession, although not held by the civil possessor, may nevertheless be held by some other person on his behalf. Separation of this nature has been illustrated by the instances referred to in the pre- ceding chapter, where the possession has been regarded as in a state of rest. Although the civH and the actual posses- sion are not united in the same person, yet they coincide in the sense that the civil possession is based on the actual possession. The actual possession is reckoned to the credit of the civil possessor. But a civil possession may be deemed to exist, although no actual possession is held by or on behalf of the civil possessor, and this ordinarily happens when the possession is in a state of change. Any change in the civil possession involves two inquiries. First, has there been a change in the actual possession, and secondly, has there been a corresjDonding change in the civil posses- sion ? It will be foimd that the change in the civil possession anticipates, concurs with, or lags behind the change ia the actual possession. In the first case and the third, the civil possession is no longer based on the actual possession. Instances of this mode of separation will be found in the present Chapter. Original Actual possession is gained so soon as exclusive physical timoi control has been acquired with a suitable intention, and of civil possession. THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 29 thereupon civil possession at once results, either to the civil actual possessor or to some person on whose behalf he is acting. In some special oases, as in the customs of the ■whale-fishery referred to by Mr. Justice Holmes (Common Law, p. 212), the civil possession precedes the acquisition of actual possession — that is, possession is deemed to be acquired for legal purposes, although, as between con- tending claimants, no one of them has obtained exclusive control. It has been pointed out (PoUock & Wright on Poss. 45) that, so far as concerns land in this country, the original acquisition of possession is no longer of practical importance. Change of civil possession from one person to another Transfer takes place either with or without the consent of the minatiou previous possessor. These are the two cases of delivery of possession and of dispossession, and in the latter case we must further distinguish according as the new possessor enters with or without title. In delivery of possession the change -of actual possession is easily effected, and there is also a tendency for the civil possession to be credited to the new possessor even before any actual possession can be said to have been acquired by him. In entry under title the civil possession is in English law quite independent of a change in the actual possession. The person so entering acquires civil possession although the actual possession is still in dispute. In the Eoman law, where the questions of possession and title are kept distinct, this case does not occur. In dispossession by a stranger, under which head is included disseisin, the tendency is the other way. The change of actual possession is less readily effected, and, when this has been accomplished, the change in the civil possession still lags somewhat behind. Each of these cases involves the loss of possession by one person and its acquisition by another, but in the first two, it is the 30 POSSESSION OF LAND. acquisition by tlie new possessor wMoh is the more prominent feature, and it is this which fact and law alike assist ; in the last, stress is chiefly laid on the loss by the old possessor, and in his favour the change is retarded as long as possible. There remains the case of the termination of civil posses- sion, where, that is, it is lost by one person, and not at the same time gained by another. This again raises the double inquiry, when actual possession is to be deemed to be lost, and whether this carries with it the loss of civil possession. The subject of this Chapter falls, therefore, under the heads of (1) delivery of possession, (2) entry under title, (3) dispossession (including disseisin), and (4) loss of possession. (Of. Pollock & Wright on Possession, 44.) 1. Delivery oe Possession. Require- Of the two points in the physical element of posses- deliverv ^^'^^ — ^^^ manifestation of control by acts of ownership, or otherwise, and the exclusion of strangers — the latter is secured without difliculty on a delivery of possession. Provided there is vacua possessio — that no other person, that is, is present claiming the possession — all that is necessary is that the transferor should withdraw in favour of the transferee. Under such circumstances, not only is there an actual exclusion of strangers, but there is a probability that this will continue, and that the respect which was paid to the former possession will be paid also to the new. The new possessor, it has been well said, gets the " goodwill " of his predecessor's occupation. (PoUock & "Wright on Possession, 14.) The fact of exclusion being thus established, it is easy to give a favourable con- struction to the acts or circumstances manifesting actual control, and herein delivery of possession differs from THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 31 dispossession. " Delivery is favourably construed, taking is put to strict proof." {Ibid.) Acts of ownership are not required to show exclusion, but simply to manifest the new control. In the Eoman law they might even be dispensed with, and delivery of land might take place without actual entry by the transferee. In English law entry is required, but an entry on part of an estate puts the transferee in possession of the whole. {Pod, p. 207.) The matters calling for special attention are the require- ment of vacua possessio, the manner in which the delivery is effected, and the area to which it extends. The requirement of vacua possessio was formerly of Vacua importance in livery of seisin. According to some autho- rities it was essential that there should be no man, woman, or child at all on the land or in the house other than the grantor or grantee, but this was carrying the require- ment too far. All that was really necessary was that there should be no other person claiming the possession, or representing a claimant to the possession. {Doe v. Tayhr, 1833, 5 B. & Ad. 575.) And the requirement was dispensed with when a person who had right of entry wished to deliver seisin. An entry vested the possession in him, although an adverse claimant was on the land, and by virtue of this possession he could make livery of seisin. Nay, further, he might make livery within the view, and the feoffee might obtain seisin in deed by going as near the land as he dared, and making claim. "A livery in law," says Lord Coke, " shall be perfected and executed by an entry in law." (Co. Litt. 48 b.) The question of vacua possessio arose when the land was Livery in the occupation of a tenant for years, for since the tenaa.fy. feoffor, although he was seised, had no possession, he coidd not make that delivery of possession on which livery of seisin was based. (Co. Litt. 48 b.) To pass the seisin 32 POSSESSION OF LAND. there must have heen a grant of the reversion follov?ed by attornment on the part of the tenant. (Litt. s. 567.) Livery of seisin might, however, be effected with the assent of the tenant. (Oo. Litt. 48 b. ; Prest. Abst. II. 29 L) And it could also be effected if the tenant and his family happened to be absent from the land. " If the lessee be absent, and hath neither wife nor servants (though he hath cattle) upon the ground, the livery of seisin shall be good." (Co. Litt. 48 b.) But the livery in such a case was ineffec- tual if the lessee was on any one of several closes in the same county included in the demise to him, " for the lessee cannot be upon every parcel of the land to him demised, for the preservation or continuance of his possession therein. And, therefore, his being in the house, or upon any part of the land to him demised, is sufficient to preserve and continue his possession in the whole from being ousted or dispossessed." {Ibid.) While, however, the freeholder could not, as long as his tenant was in possession, deliver seisin, with the tenant it was different. He had the possession, and by making a feoffment and delivering the possession with the formalities of livery of seisin, could effect a disseisin of the freeholder, and vest the seisin in the feoffee. Livery in Livery of seisin was either livery in deed or livery in law. Livery in deed took place on the land, and in one form was modelled on the notion that delivery requires manual transfer of possession. Since with land this was impossible, something, whether connected with the land or not, was handed over as symbolizing the land. But this ceremony was not essential, and the livery might take place by words only. " A livery in deed may be done in two manner of ways. By a solemn act and words, as by delivery of the ring or hasp of the door, or by a branch or twig of a tree, or by a turf of the land, and with these or deed. THE ACQUISITION AND LOSS OP CIVIL POSSESSION. 33 the like words, the feoffor and feoffee both holding the deed of feoffment, and the ring of the door, hasp, branch, twig, or turf ; and the feoffor saying, Here I deliver you seisin and possession of this house, in the name of all the lands and tenements contained in this deed, according to the form and effect of this deed ; or by words without any ceremony or act ; as, the feoffor being at the house door, or within the house. Here I deliver you seisin and posses- sion of this house, in the name of seisin and possession of all the lands and tenements contained in this deed. . . . For if words may amount to a livery within the view, much more it shall upon the land. . . . The delivery of anything upon the land in name of seisin of that land, though it be nothing concerning the land, as a ring of gold, is good, and so hath it been resolved by all the judges." (Co. Litt. 48 a.) Livery in law took place in sight of the land and was Livery in turned into livery in deed by the subsequent entry of the feoffee. " A livery in law is, when the feoffor saith to the feoffee, being within view of the house or land, 'I give you yonder land to you and your heirs, and go, enter the same, and take possession thereof accordingly,' and the feoffee doth accordingly in the life of the feoffor enter." (Co. Litt. 48 b.) The above examples of livery in deed assume that there is a deed accompanying the feoffment, but this was a matter of custom and convenience, not of necessity. The seisin passed, whether by livery in deed or in law, without any charter of feoffment. (Co. Litt. 330 b, note (1) ; 48 b.) In livery in deed the feoffee is on the land ; in livery in Entry. law, he must complete his seisin by entry. In either case he obtains by his presence actual possession, and on this the seisin, the civil possession, is based. The Eoman law went a step further with regard to livery within the view, and allowed the civil possession to vest at once in the L. D 34 POSSESSION OF LAND. transferee: — " Si vicinum mihi fundum mercato venditor in mea turre demonstret vacuamque se possessionem tradere dicat, non minus possidere ccepi, quam si pedem finibus intulissem. (D. 41, 2, deposs.; 18 Celsus, 2.) But the requirement of actual entry to give civil possession is insisted on in the English law of seisin, and is further illustrated by the law of trespass. A lease for years created by deed takes its origin from the deed, and there needs no direct delivery of possession by the lessor to the lessee. (Litt. s. 69.) But at the time of the making of the deed the lessor must be in possession, and the lessee has no estate, but merely an interesse termini, until he enters. And until he has thus completed his possession he cannot maintain trespass. {Rxjan V. Clark, 1849, 14 Q. B. at p. 73 ; Harrison v. Blackburn, 1864, 17 0. B. N. S. at p. 691.) Area The circumstance by which a feoffee showed his actual in the possession of the land was, in a livery in deed, his presence ^^'^^' on the land and acceptance of possession ; in a livery in law, his subsequent entry. The effect of this may pro- perly be extended to all land from which the feoffor withdraws, and which is commonly known, or may be reasonably supposed, to be in the same occupation. The old law purported to adopt the test of common knowledge, and assumed that all the men of a county were cognisant of what took place in the county. Hence a livery of seisin on one parcel of land was effectual to pass the seisin of all other parcels named in the deed, or specified in the livery, which were in the same county. (Co. Litt. 48 a ; Litt. ss. 61, 418.) Where, however, the lands were ia different counties, it was necessary in each county to have a livery of seisin. (Litt. s. 61.) " Forasmuch as the men of one county do not accompany together with men of another county at county courts, tourns, leets, and other courts, therefore in judgment of law they shall take no notice of THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 35 livery in anotlier county to pass any lands in their own county." (Co. Litt. 50 a.) And as to all the lands that were included, the feofEee acquired a " possession and seisin in deed." (Of. Litt. s. 418.) The distinction according to counties has now lost its meaning, but the principle remains the same, and probably a pm'chaser who enters under a deed, or a lessee who enters under a lease, acquires possession of all the lands comprised in the deed or lease which are so situated that it is a matter of notoriety or of reasonable supposition that they are in the same occu- pation. (Cf. JepJierson v. Bryden, Bigelow's L. C. on Torts, 356 ; LoiD Moor Co. t. Stanley Coal Co., post, p. 207.) At the present time the immediate freehold lies in grant. Ereehold (8 & 9 Yict. c. 106, s. 2.) Hence formal livery of seisin i^^rant. is no longer necessary, and it has become practically obsolete. (Challis, Real Property, 2nd ed. 363.) But though it is possible that the grant passes a statutory seisin to the grantee, it does not seem that the grantee can become actually seised until he enters. In the case of goods it is possible to dispense more Delivery readily than in the case of land with actual appropriation by the transferee. Goods delivered at my house are in my possession, although I have not touched them (D. 41, 2, deposs. ; 18 Celsus, 2) ; and so with regard to goods in the warehouse of another. They may be delivered by delivery of the keys at the warehouse (D. 18, 1, de contr. emt. ; 74, Pap.) ; or, in English law, even away from the warehouse. This is sometimes said to operate as a sym- bolical delivery, a doctrine which assumes a change in the civil, not in the actual possession. But it seems correct to recognize a change in the latter also, and to base the trans- feree's possession on the circumstance that he has exclusive access to the goods. (See the cases collected and discussed in PoUock & Wright on Possession, pp. 60 — 70.) On d2 36 POSSESSION OF LAND. the other hand, if others are not excluded, or if I have no access to the thing, the result is diiferent. It has been held that the purchaser gains no possession of a machuie which is sent to his premises on trial, and which is still subject to the control of the maker and may be removed by him if it is not satisfactory {Phelps v. Willard, quoted in Big. L. 0. on Torts, p. 356) ; and where a locked box is delivered to me, and the key kept back, it seems that I have no possession of the contents. {Reddel v. Bohree, 1839, 10 Sim. 244.) Frequently, however, it is difficult to say who is the actual possessor of a chattel (Pollock & Wright on Poss. p. 6) ; and, for the sake of settling rights dependent on possession, it is necessary to ascribe the civil possession to the person who most nearly resembles an actual possessor. 2. Entry under Title. Possession Where a person who, as against the actual possessor, is the title, entitled to the possession of land, enters in assertion of his title, he is deemed to acquire the possession, although he does not succeed in gaining effective occupation. In other words, as between two persons each upon the land, and each claiming to be in possession, the civil possession is ascribed to whichever of the two has the better title. " Where two men are in possession the law will adjudge it in him that hath the right." {Reading v. Royston, 1702, Salk. 423 ; Litt. s. 701.) In such a case the civil posses- sion does not wait for the actual possession to be esta- blished. If neither has any title, the civil possession remains, like the actual possession, undetermined. Acquisi- With regard to seisin this principle has always been seisin by recognized. Where a man had right to enter upon lands, ™j^® mere entry was sufficient to confer the seisin upon him (Litt. s. 418) ; and where the lands were in the hands of THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 37 a disseisor, entry by the disseisee upon any parcel gave seisia of all in the same county. But where there were several disseisors, or the land had been delivered by the disseisor to different persons, entry upon each of the persons so holding the land was required. (Co. Litt. 252 b.) And if the person entitled to enter was afraid to enter on the land for fear of injury, he might vest the seisin in himself by going as near to the land as he dared and making his claim. (Litt. s. 419 ; Co. Litt. 253 b.) To preserve the right of entry, continual claim, as this was called, had to be made every year and day. The effect of mere entry and of continual claim has Acquisi- now been abolished {post, p. 265), but a substantial possession entry made by a person having right of entry still vests ^^ entry. in him the possession for all purposes of law. The principle was stated by Maule, J., in Jones v. Chcqmian (1847, 2 Ex. p. 821), as follows :— " It seems to me that, as soon as a person is entitled to possession, and enters in the assertion of that possession, or, which is exactly the same thing, any other person enters by command of that lawful owner, so entitled to possession, the law imme- diately vests the actual possession in the person who has so entered. If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is which of those two is in actual possession, I answer, the person who has the title is in actual possession, and the other person is a trespasser .... The question which of the two really is in possession is determiaed by the fact of the possession following the title, that is, by the law, which makes it follow the title." (Cf. Bidcher v. Buicher, 1827, 7 B. & C. 402 ; Eey v. Moorhousc, 1839, 6 Bing. N. C. 52.) But the mere claim of title does not give civil possession — or, to adopt the common phrase, constructive 38 POSSESSION OF LAND. Telford. possession — against those who show no title. It lies upon the person entering in assertion of his right to show that his title exists. (Per Lord Blackburn in Bristow v. Cormican, 1878, 3 App. Gas. p. 661.) LowsY. The principle under consideration appears to account most satisfactorily for the decision of the House of Lords in Loivs V. Telford (1876, 1 App. Gas. 414). Lows was entitled as mortgagee in fee to certain premises used for the storage of goods. Two persons, Westray and Telford, were in occupation by permission of the mortgagor. On the night of the 13th of July, 1870, the premises were locked up and left. Early on the following morning Lows went for the purpose of taking possession. He was accompanied by two men, a joiner and a carpenter. They opened the door, took the old lock off, and prepared to put on a new one. Westray then appeared and demanded admission, but was refused. Subsequently he eifected an entry through a window, and having by that time pro- cured the assistance of Telford and others, he drove Lows away from the door. Lows indicted Westray and Telford for a forcible entry, but they were acquitted. Then they took proceedings against him for malicious prosecution, and the question was raised whether Lows had obtained such possession against them as to bring the entry on him within the Statutes of Forcible Entry. In the Exchequer Chamber it was thought that for this purpose an actual possession was necessary, and that such a possession had not been acquired by Lows. " It seems to me," said Keating, J., {ibid, at p. 423), "that in order to constitute possession it must be a complete possession exclusive of the possession of any other person, and here, I think, the facts show there was no such possession taken." In the House of Lords, Lord Gairns, 0., took a different view as to the facts, and held apparently that THE ACQUISITION AND LOSS OP CIVIL POSSESSION. 39 Lows had obtained actual possession — " not for any great length of time, but for a definite and appreciable length of time, [he] obtained and retained possession of the pro- perty " — though in arriving at this conclusion he relied also on the circumstance that he had a right to take possession. But the existence of a right to take posses- sion cannot alter the fact of possession, although it is decisive of the civil possession. Lord Selborne avoided the difficulty by holding that the existence of civil posses- sion was sufficient, and that Lows had acquired this by his entry under title. "If for civil purposes the legal possession was then in the appellant, the foundation for such a charge, so far as the state of possession is concerned, was sufficiently and properly established." The case, that is, was an instance of the rule in Jones v. Chapman. Whether or no Lows could be said to have gained actual possession, his entry under title at any rate vested in him the civil possession. The entry of Westray and Telford, therefore, was a forcible entry on an existing possession, and was indictable. 3. Dispossession (including Disseisin). In dispossession the change of possession is effected A.otual against the will of the existing possessor ; hence the gion. physical control of the new possessor must be manifested in such a manner as at once to establish his own control and exclude that of his predecessor. The new possession consequently extends only over so much of the land as is reaUy brought within the exclusive control of the intruder, and there is no presumption in its favour, such as is allowed in the case of delivery of possession. With regard to movables it has been said that a man Movables. who is not entitled to take possession can obtain possession 40 POSSESSION OF LAND. only of that which he actually lays hold of. {Ex parte Fletcher, 1877, 6 Ch. D. 809.) In Furher v. Finlayson (1876, 24 "W. E. 370), a man who was sent to take posses- sion of goods found the owner absent and the goods inside rooms, the doors of which were locked. He remained in an outer room from which he could command the locked rooms. It was held that since he could exclude the owner, he had gained possession of the goods ; but the decision overlooks the double requirement of possession, actual control over the thing as well as the exclusion of others. Land. With regard to land, too, it is recognized that a person who is in possession without title can have no constructive possession beyond the limits of his actual occupation. (Of. D. 41, 2, deposs. ; 18 Celsus, 4 ; Pollock & Wright on Poss. 14; pod, pp. 205 — 207.) Hence where a man having possession of the south end of a lot, but without title, cut timber on the north end of the lot, the whole of which he contended was in his constructive possession, it was held in an American case {Aikin v. Buck, quoted in Big. L. 0. on Torts, 358) that he was liable to the owner in trespass. At the same time, where land has been enclosed or otherwise reduced into the possession of one person, any one subse- quently in possession without title has the advantage of this actually established state of possession, and the limits of his possession may be determined accordingly. In another American case referred to by the same author {Carey v. Buniain, ibid. 357), it was held that a widow, remaining in the mansion house without title after the death of her husband, gained possession of the land within the enclosure of the house and grounds, though not of land outside the inclosure which had been held by her husband. The true principle appears to be that, while no presumption is made in favour of a wrongful possession, a fair interpretation must be given to the acts of the wrong-doer, having regard THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 41 to the state of the land, and the presence or absence of the existing possessor. The change in the civil possession is based upon the change Civil dis- in the actual possession ; but it does not follow that, when A. has been dispossessed by B., therefore A.'s civil possession has come to an end — that he is to be regarded as dispos- sessed for pui-poses of law. An interval is commonly allowed during which he may return and expel B. ; and only when this interval has elapsed, and no expulsion has been effected, is the dispossession finally complete. Thus, it was the rule in the Roman law that the possessio — that is, the civil possession — was not terminated until the pos- sessor had had notice of the wrongful entry, and had had an opportunity to re-enter. Upon an attempt to re-enter he may be successful, and his possession has then never been interrupted. On the other hand, if he is repulsed by force (D. 41, 2, de poss. ; 6 Ulp. ] ; 25 Pomp. 2), or if he abstains from the attempt through fear {ibid.; 3 Paul. 8; 7 Paul.), the civil possession is at an end. The same principle is recognized in English law. In Srowne v Broume v. Baioson (1840, 12 A. & E. 624), the plaintiff ^''"'""''■ had been master of a school which was under the control of trustees, and had been allowed to occupy the school- house. On June 29, 1833, he was dismissed, and at first he acquiesced in the dismissal. He left the premises, and the trustees peaceably took possession and looked them up. On the next day the plaintiff returned and re-entered by force. On the 4th of July he was required by notice to depart, and, as he persisted in remaining, he was ejected by the order of the trustees on the 11th. It was held that he had not by his re-entry obtained a possession upon which he could maintain trespass. " A mere trespasser," said Lord Denman, O.J., " cannot by the very act of tres- 42 POSSESSION OF LAND. pass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can without delay reinstate himself in his former posses- sion." Probably, however, the intruder has a civil posses- sion as against strangers so soon as his actual possession of the land has been established. Bisseisiih Difficul- Disseisin, it has been said, is a complicated fact, and (isseisin differs from dispossessing. (Per Lord Mansfield, in Taylor under the ig;^^.^ ^757 ^ ^^^j.. 60 ; 2 Sm. L. 0. 9th ed., 633.) old law. ' ' ' ... The difference is apparent from the terms which signify, one a privation of seisin (Preston, Abstr. II. 284), the other a privation of possession merely. The special diffi- culties which have arisen about disseisin seem to be due to two circumstances. Seisin has been supposed to imply a feudal relation between lord and tenant; disseisin the usurpation of this relation ; and how the disseisin was to be effected when the relation had become obsolete, and the actual usurpation impossible, was a matter of grave controversy in the last century. Moreover, seisin, as already remarked, touches not only the possession, but the title. Under the old law the owner who was not seised, in addition to losing the beneficial enjoyment of the land, lost also many important incidents of his right of property. His estate was turned by a disseisin into a right of entry, which could not, for instance, be alienated or devised. In favour of the owner, therefore, the law struggled against disseisin, considering the owner to remain seised as long as was possible consistently with the facts. (Preston, Abst. II. 286.) Hence, there was at once doubt as to what con- stituted disseisin, and a repugnance to recognize that a THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 43 disseisin had taken place. When, however, a disseisin had been established, it was the commencement of a new title (Prest. Abst. II. 284), and the disseisor had an estate in fee which made him owner as against all the world except the disseisee. Under the old law disseisin was a fact of great importance, and the judgment of Lord Mans- field in Taylor v. Horde (supra), casting doubt upon its nature, was received with much disapprobation by convey- ancers, one of whom said that the judgment had " con- founded the principles of law, and produced a system of error." (Preston, Abst. II. 280.) At the present time disseisin has no further effect than dispossession on the title of the owner, but it may still take place [Leach v. Jay, 1877, 6 Oh. D. 496; 9 Oh. D. 42), and, just as under the old law, it starts a new title in favour of the disseisor. In Bracton, disseisin depends upon the duration of the Originally right of entry allowed to the disseisee. This right was not com- his " prinium et principale remedium " (Bract., ed. by Sir ^gggi^g ^ Travers Twiss, Vol. III. 24 ; f. 162 b.), and such is stiU the l^^d right . . . . °f entry. theory of the law. The right of action is subsidiary to the right of entry. {Magdalen Hospital v. Knotts, 1878, 8 Oh. D. p. 727.) But at that time the right of entry was described as a right of fresh re-entry merely. If the disseisee was on the land when the disseisin took place, the law gave him four days to collect his forces and reinstate himself. If he was absent, an additional period was allowed varying with the circumstances. (Bract., Vol. III. 26 ; f. 163.) The entry of the disseisor affected immediately only the natural possession ; the seisin or civil possession lasted until the disseisee's right of re-entry was lost. Thereupon the disseisor was seised (Bract., Vol. III. 32; f. 163 b.), or, at any rate, had a quasi- freehold (Vol. III. 384; f. 209 b.), and the disseisee was 44 POSSESSION OP LAND, compelled to have recourse to the assize. If, nevertheless, he entered on the disseisor, an assize would lie against him at the suit of the latter. (Bract., Vol. III. 32; f. 163 b.) And even before the disseisor was seised of the freehold, his possession was protected against strangers. In Bracton, therefore, disseisin seems to be founded upon the analogy of the Eoman law as to the loss of poss6mo ; not on the usurpation of the feudal relation. Extension But in course of time the right of entry came to be put of entry, on a different footing. It was no longer a right merely of fresh re-entry, to be exercised immediately, but a right ascribed generally to any person out of possession who, as against the actual possessor, was entitled to possession, unless for some special reason it was either denied to him when his right to possession accrued, or, having been allowed to him, was subsequently taken away or " tolled." The right of entry was denied altogether when there had been a discontinuance ; it was taken away, after having been at first allowed, by a descent cast. Discon- A discontinuance took place when an alienation of the fee by feoifment with livery of seisin was made by a tenant in tail, or by a person seised in right of another — as an abbot in right of his monastery, a husband in right of his wife. (Litt. ss. 592 — 595.) In these cases the feoffor was enabled to pass a complete right of possession to the feoffee, with the result that the persons entitled after the feoffor's estate had come to an end had no right to enter and take possession, but were put to their action. On the other hand, a feoifment by a tenant for life, although it passed the fee, and was said to divest the estates in remainder, did not work a discontinuance (Co. Litt. 327 b.), and on the death of the tenant for life, or earlier, if the remainderman chose to take advantage of the forfeiture, he might enter on the feoffee. In the case of a tinuance. THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 45 feofiment by a husbaiLd seised in right of his wife the law was altered by 32 Hen. 8, o. 28, s. 6, and on the death of the husband the wife might enter (Co. Litt. 326 a.), but the effect of a discontinuance was not finally abolished till 1833. (R. P. L. A., 1833, s. 39.) The right of entry was toUed by descent when after a Descent disseisin the disseisor, or his alienee, or a subsequent '^^ ' disseisor, died seised of the land, and then, since the land devolved on the heir by act of law, the possession in his hands was no longer looked upon as merely tortious. The disseisee's right of entry was taken away, and he could only recover the possession by action. (Co. Litt. 237 a, b.) In practice the effect of descents was greatly lessened by the fact that the right of entry might be preserved in spite of the descent by the easy formality of making con- tinual claim (Litt. s. 422) ; and in course of time the statutory requirement was introduced that the disseisor must have had peaceable possession for five years (32 Hen. 8, c. 33), though it appears that the statute only applied to actual disseisors, not to abators, or intruders, or to the feoffees of disseisors. (Co. Litt. 238 a.) The effect of descents in tolling the right of entry was finally abolished by the E. P. L. A., 1833, s. 39, and now every person who is entitled to possession as against the actual possessor has a right of entry upon him, subject only to the restrictions imposed by the Statutes of Forcible Entry. {Post, Chap. VII.) After the extension of the right of entry, it still Position remained true that the disseisor was protected at once disseisor. against all persons except the disseisee, while, as against the latter, his successor in title was protected so soon as the disseisee's right of entry was gone. " When any man is disseised, the disseisor has only the naked possession, because the disseisee may enter and evict him ; but against 46 POSSESSION OF LAND, Effect of extension of right of entry on disseisin. Disseisin supposed to have originally depended on change all other persons the disseisor has a right, and in this respect only can be said to have the right of possession, for in respect to the disseisee he has no right at aU. But, when a descent is cast, the heir of the disseisor has jus possessionis, because the disseisee cannot enter upon his possession and evict him, but is put to his real action, because the freehold is cast upon the heir." (Gilbert's Tenures, p. 21.) The extension of the right of entry was not accompanied by any corresponding prolongation of the seisin in favour of the disseisee, and the disseisin might be complete, although the disseisor's right of entry still existed. But while Bracton's test of disseisin was thus lost, no other test equally definite took its place, and hence Lord Mans- field's doubts in Taylor v. Sorde (1757, 1 Burr. 60 ; 2 Sm. L. 0. 9th ed. p. 633). The question whether a disseisin had been effected arose especially in cases where it was neces- sary to discover who was the actual tenant of the freehold, whether for the purpose of making him tenant to theprwcipe — that is, defendant in a real action — or of ascertaining if a fine levied by the alleged tenant was effectual. It was usually said, too, that the Statute of Limitations only ran from a disseisin. It was a case of the first kind which Lord Mansfield had to consider. " The precise definition," he said (2 8m. L. 0. 9th ed. p. 703), " of what constituted a disseisin which made the disseisor the tenant to the demandant's prcecipe, although the right owner s entry was not taken away, was once well known, but it is not now to be found. The more we read, unless we are very careful to distinguish, the more we shall be confounded." In discussing the subject. Lord Mansfield laid stress upon the circumstance that a disseisin implies not merely a change in the possession, but a change in the feudal tenancy. "Seisin," he said (26/d,p.700), "is a technical term to denote THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 47 tlie completion of that investiture by whioh tKe tenant was in feudal admitted into the tenure, and without whioh no freehold could be constituted or pass. . . . Disseisin, therefore, must mean some way or other turning the tenant out of his tenure, and usurping his place and feudal relation." And, from the analogy of copyholds and customary freeholds, he argued that the usurping of the freehold tenure must be a different fact from the naked possession or occupation of the land. " At the time I speak of, it might be as notorious who was the feudal tenant de facto, as who is now de facto incumbent of a living or mayor of a corporation." {Ibid., p. 702.) Subsequent judges lent their countenance to this recurrence to early history {William v. Thomas, 1810, 12 East, 141, see pp. 152, 153; Doe v. Lynes, 1824, 3 B. & 0. 388, see p. 406), and spoke as though the incidents of feudal tenancy ought stUl to be a test of seisin. But Lord Mansfield recognized that they were obsolete. After referring to successive changes which had relaxed the strictness of the feudal system, he said : " And at last the total abolition of all military tenures [has] left us little but the names of feoffment, seisin, tenure, and freeholder, without any precise knowledge of the thing originally signified by these sounds ; the idea modern times annex to freehold, or freeholder, is taken merely from the dura- tion of the estate." On the other hand. Lord Eedesdale seems to have doubted whether these historical speculations had any application. It was apparently with reference to them that he said, in Cholmondeley v. Clinton (1821, 4 Bligh. p. 107) : — "I can only say that, as far as I have been able to investigate the subject, the law of feuds, strictly speaking, never was the law of this country ; and a great deal of the argument whioh will be found in modern cases, and which is not found in more ancient cases, I think is foimded in mistake." 48 POSSESSION OP LAND. Actual disseisin and dis- seisin at election. Actual disseisin. Before going further, it is necessary to distinguisli between actual disseisin and disseisin at election. For tlie purpose of real actions it was frequently unimportant to determine wliether a disseisin had actually taken place. Whether or no there had been such a disseisin as to vest the freehold in the disseisor, the disseisee was allowed to treat the disturbance of possession as a disseisin, and in respect of such disseisin at election he had the sanae remedies as for an actual disseisin. It ranked as a com- plete disseisin between the parties, although the quasi- disseisee might still, as regards the lord and strangers, be tenant of the freehold. (Co. Litt. 239 a, note (1).) "In cases of disseisin at election the rightful owner has in reality the actual seisin, and supposes himself to be disseised solely for the purpose of trying the title in an assize, instead of bringing an action of trespass." (Preston, Abst. II. p. 287.) On the other hand, when the action was brought by a person not himself seised against a tenant whose only title was by disseisin, it was necessary to make sure that an actual disseisin had taken place, and that the apparent tenant was tenant de facto of the freehold. So for a fine to be effectual, the person levying it— the conusor — must have had an estate of freehold in the land, and if his title was by disseisin, there mu^t have been an actual disseisin. In considering what constitutes an actual disseisin, it is, perhaps, not necessary to pay attention to the original nature of seisin, though even as a matter of history it is probable that the change in the tenancy of the freehold followed upon the change in the possession without any further usurpation of the feudal relation. In other words, the disseisin was effected without reference to the lord, the burden of feudal incidents being determined by the actual state of the possession. (See Professor Maitland's THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 49 Axticle, " The Mystery of Seisin," L. Q. E. YoL II. 487.) The lord, for instance, lost his wardship and escheat against the disseisee, and gained them against the dis- seisor. {Ibid.; of. Litt. s. 390.) The fact of disseisin seems not to he afiected by the circumstance that at a later time the old tenancy was recognized as for some purposes subsisting until the lord had accepted services from the disseisor. (Co. Litt. 268 a.) The disseisee remained tenant in law so that the lord might execute to him an effectual release of his right in the seignory or in the land (Litt. s. 454) ; and, if he died, his heir being within age, the lord was entitled to wardship. (Co. Litt. 76 b, 266b, note (1).) But to turn to authorities more easy to deal with, the statements of Littleton and Coke are express that disseisin is simply an ouster of him who has the free- hold. " Disseisin is, properly, where a man enters into any lands or tenements where his entry is not congeable, and ousteth him which hath the freehold." (Litt. s. 279.) Commenting on this definition. Lord Coke says : " Every entry is no disseisin, unless there be an ouster also of the freehold. And therefore Littleton doth not set down an entry only but an ouster also, as an entry and claimer, or a taking of profits, &c." (Co. Litt. 181 a.) So in Blundell^. Baugh (1634, Sir Wm. Jones, 316), it is said that actual disseisin is a claim by a stranger by entry to have the freehold. These passages give the true key to the matter. The freeholder— the person actually seised— is for the time being owner of the land. The important fact in seisin is not any vestige of a feudal tenancy, but the title which it implies. Actually to oust the freeholder, or, after entering in his absence, to main- tain the possession against him {Reading v. Roijston, 1702, 2 Eaym. 829), are acts obviously hostile to his title, 50 POSSESSION OF LAND. and the disseisin is complete without any express claim hy the disseisor. If, however, the possession is vacant, a stranger does not acquire seisin by entering and taking the profits {Reading v. Royston), unless it is further shown that he claims in opposition to the freeholder {William Y. Thomas, 1810, 12 East, 155), such claim being express (Bac. Abr. tit. "Disseisin," (A) ), or implied from his entering under a will or other document of title {Leach v. Jay, 1878, 9 Ch. D. 42), or as heir, where there has been a devise. (Prest. Abst. II. 292.) These are cases in which it is clear that a disseisin takes place, and in which probably Lord Mansfield would have admitted that a jury might find disseisin as a fact. His doubts were suggested by the case, presently to be mentioned, of disseisin by the feoffment of a termor or other bare possessor. JRepudia- So far we have regarded the freeholder as being at the tenant time of the disseisin in possession of the land or else seised in law, the actual possession being vacant. If a tenant was in possession, there were four cases in which the seisin of the freeholder might be aft'ected : a claim by the tenant to hold on his own account, ouster of the tenant by a stranger, payment of rent by the tenant to a stranger, and delivery of possession (whether by way of livery of seisin or not) by the tenant to a stranger. The first three cases present no difficulty. The tenant himself could not, either dm-ing the term or after its determination, disseise the landlord. During the term he might, by repudiating the landlord's title, forfeit the term ; but the landlord was not bound to take advantage of the forfeiture, and his estate was not touched. After the determination of the term, the tenant was still in the same position, for as long as he remained in occupation he was deemed to occupy as tenant, though only as tenant at sufferance. A person who entered lawfully could not, by continuing in posses- THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 51 sion, acquire a wrongful title. {Doe v. Perkins, 1814, 3 M. & S. 271.) But wliere the tenancy was in its origin simply a legal form wherewith to clothe the equitable relation of the parties, the rule was relaxed, and a mortgagor might disseise his mortgagee — or at any rate gain a possession adverse to him {post, p. 165)— the cestui que trust his trustee. A dispossession of the tenant by a stranger was equiva- Ouster of lent to a dispossession of the freeholder himself. Whether aTverse"'' at the time of entry by a stranger the freeholder was ^^eceiptof in possession, or a tenant was holding on his behalf, the stranger was a disseisor. (Prest. Abst. II. 296.) He put an end to the possession on which the existing seisin was based, and he acquired a new seisin for himself. (Litt. s. 411 ; Co. Litt. 250 b.) But where the stranger did not oust the tenant, but claimed and obtained payment of rent from him, there was no actual interference with the posses- sion of the land, and so no actual disseisin. This was only a disseisin at the election of the freeholder. (Litt. ss. 588, 589.) The fourth case — delivery of possession by a tenant to a Delivery stranger — might arise in various ways. The tenant might sion°bT ^' deliver the land to one who claimed as owner, or he might tenant, himself purport to create an interest in it greater than his own. Ordinarily, since there was no forcible interference with the possession, there was in such cases no actual dis- seisin, though the freeholder might treat the person thus improperly in possession as a disseisor at his election. Where, for instance, tenant at will leased to one for years, the latter was no more than a disseisor at election. {Bhmdell v. Baugh, 1634, Sir Wm. Jones, 315.) But if the tenant not merely let a stranger into possession, but made a feoffment to him with livery of seisin, it was settled law previously to Taylor v. Horde (1757, 1 Burr. 60 ; 2 E 2 Sor 52 POSSESSION OF LAND. Sm. L. 0. 9th ed. 633), that this operated as an actual disseisin of the freeholder. Taylor Y. The facts in Taijlor v. Eo)xle are summarized by Butler in the note to Co. Litt. 330 b, in which he combats the view taken by Lord Mansfield in 1752, and by the King's Bench subsequently in 1777. Here it is enough to say that Dame Ann Atkyns was tenant for life; remainder to Sir Eobert Atkyns in tail male; remain- ders over. Sir Eobert Atkyns, being apparently unable to obtain the assistance of the tenant for life to bar the estate tail, in 1710 procured the assignment to himself of certaui attendant terms, brought ejectment against Dame Ann, obtained judgment for possession, and entered. Being thus in possession, he made a feoffment with livery to James Earle and his heirs, to the intent that Earle might become tenant of the freehold, and suffer a recovery to the use of Sir Eobert and his heirs. The recovery was suffered. In 1711 Sir Eobert died intestate, leaving Eobert Atkyns his nephew and heir-at-law. Meanwhile Dame Ann in turn had brought ejectment, and ia 1712 obtained a verdict; but later in the year she died, and Eobert Atkyns entered, and held till his death in 1753. The action of Taylor v. Horde was then brought to assert the title of persons entitled in remainder after the estate tail of Sir Eobert Atkyns, and two questions were raised : first, whether the recovery was effectual to bar the remainders ; and secondly, whether the Statute of Limita- tions had run. As to the first, the recovery could not be effectual unless James Earle was tenant of the freehold, and this required, either that Sir Eobert Atkyns should have been, by his entry under the judgment in ejectment, an actual disseisor ; or that his bare possession should have enabled him by livery of seisin to vest the freehold in his feoffee. There was also the objection that the whole pro- THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 53 Deeding was covinous, and was designed to enable Sir Eobert Atkyns to bar the estate tail without the con- currence of the tenant for life. On this last ground it was held that the recovery was bad, and it was further held, that the Statute of Limitations was a bar. On writ of error to the House of Lords the decision as to the statute was affirmed. The question of actual disseisin, therefore, was not really material, but it was carefully considered by Lord Mansfield in delivering the judgment of the King's Bench. There was no difficulty, upon recognized principles, in Effect of holding that Sir Eobert Atkyns was not a disseisor. A ^th iudgment in ejectment concerns only the possession, not ^^^^'^ ^y ■> a J ■/ r ; a possessor the seisin ; and possession, when thus recovered, is deemed not seised, to be held for the actual freeholder. Moreover, Lord Mansfield intimated that the entry could not be made a disseisin even at election. It was not sine judicw, and, therefore, on the terms of the writ of novel disseisin, the assize woiild not lie. This result does not appear to have been controverted. What startled the profession, and pro- duced' Butler's refutation, was Lord Mansfield's decision that the feoffment did not vest the freehold in James Earle by disseisin. That originally the actual possessor of land, though not himself seised, could by livery of seisin vest the freehold in a stranger, seems to have been common ground. Anciently, it was said, there were solemnities attending a feoffment with livery which insured notoriety, and put the feoffee in the position of apparent tenant. These solemnities were the presence on the land of the peers of the lord's court for the purpose of subscribing their names to the charter of feoffment, and the recording of the entry of the feoffee in the lord's court. But these solemnities had long been obsolete. The feoffment was good though attested by strangers only, and the recording of the entry 54 POSSESSION OF LAND. was dispensed with. Lord Mansfield, and the judges of the King's Bench upon a subsequent ejectment in 1777, took the view that feoffments, in losing their solemnity, had lost also their efficacy, and that the feoffee did not acquire the seisin. At most he was a disseisor at the election of the freeholder. This would have been a per- fectly sound conclusion had feoffments lost their solemnity in recent times, and had the judges been giving them a diminished effect corresponding to such recent change. But Butler took the objection that the ceremonies attend- ing a feoffment with livery must have been changed before the time of Henry II., for the account of them given by Bracton is transcribed by Blaokstone as being still appli- cable at the time he wrote. Yet in spite of the fact that for centuries feoffments had not been attended by the ancient formalities, their efficacy in enabling a termor to pass the freehold had been uniformly recognized until Taylor v. Horde. They were even allowed to violate the rule that a termor could not gain seisia against his land- lord, for upon the feoffment a momentary seisin vested in the termor, so as to entitle his wife to dower against the feoffee — though this was also put upon the ground of estoppel ; and if the feoffment conferred only a limited estate on the feoffee, a tortious reversion remained in the feoffor. Hence Lord Mansfield, when he refused to allow effect to the feoffment by Sir Robert Atkyns, was not changing the efficacy of feoffments in accordance with a then recent change in their nature, but was altering the law in accordance with his own view of what the law ought to be. (Cf. Challis, Eeal Prop., 2nd ed. 372.) This was beyond his province, and it was not tni 1845 that the Legislature intervened, and that feoffments were by 8 & 9 Vict. c. 106, s. 4, deprived of their tortious operation. A tenant for years cannot now by any species of conveyance THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 55 disseise his lessor or create any greater interest than he himself has. As long as the legal estate is outstanding in a trustee or Eqmtable mortgagee, the person who is beneficially entitled to the '^^^'^"^• rents and profits cannot, although he is in possession, be strictly seised ; in equity, however, he is regarded as the owner of the land, and he is said, therefore, to have an equitable seisin. Corresponding to the equitable seisin it might be supposed that there can be an equitable disseisin, but this was denied by Grrant, M.E., in Chohnouddcy v. Clinton (1817, 2 Mer. p. 357). At a further stage of the same case (2 Jao. & W. p. 166), Plumer, M.E., differed from him, and so in substance did the House of Lords, but the judgment of the latter tribunal was confined to the case of an equity of redemption. The case is con- sidered at length subsequently. [Post, p. 168.) With the above statement of the law as to the position Analogiea of a tenant in relation to disseisin, may be compared the Koman rules of the Roman law where the occupation of a tenant ^^^• supported the jpossessio of the owner. A tenant who re- fused to give up the land to his landlord was deemed to eject him by force, and to acquire jwssessio for himself. Hence the landlord had a possessory remedy against the tenant, and the tenant, if ejected by a stranger, had a similar remedy against the latter. (D. 43, 16, de ri; 12 Marc; 18 Pap. »r.; Sav. Poss. 49.) And the possessio of the landlord was lost if a stranger ejected the tenant. (D. 43, 16, de vi ; 1 ITlp. 22 ; Sav. Poss. 278.) The case of delivery of possession by the tenant to a stranger was doubtful. Possibly the stranger acquired possession at once, or, in analogy to the rule in cases of actual dis- possession, the possessio may have remained in the owner, until he had received notice of the stranger's entry, and had failed to re-establish himself. (Savigny, Poss. p. 280.) 56 POSSESSION OF LAND. It may be noticed that Justinian, possibly with a view to preserving the owner's possessory rights in such cases, enacted that the owner should not be in any way pre- judiced by a fraudulent delivery of possession made by a slave, agent, tenant, or other person in actual possession. (0. 7, 32, de poss. 12 pr.) Allowing for the fundamental distinction between "possessio" as implying possession only, and seisin as implying title, there seems an analogy between this provision and the provision of 8 & 9 Yict. c. 106, s. 4. Nature of the inquiry. Continu- ance of physical element : power to reproduce state of control. Animals feres 4. Abandonment or Possession. There remains the case where an existing civil possession of land is terminated, and no new possession is constituted in favour of a third person. As in the previous cases, there are two points for inquiry, the termination of the actual possession, and the eifect of such termination on the civil possession. At the commencement of the actual possession there must be present the two elements of physical control and intention to possess. The first point, then, depends on the question, to what extent the physical control and the intention must continue to exist in order to secure the permanence of the actual possession. Savigny, who defines the physical control requn-ed for the commencement of possession as the immediate power of dealing with the thing, says that, for possession to continue, the possessor must retain the power of repro- ducing the original state of control. (Poss. p. 254.) With regard to wild animals, this suppHes a sufiicient test, and it is adopted both in the Eoman law (D. 41, 2, de poss. ; 3 Paul. 13), and in our own {The Case of Swans, 7 Rep. at 17 b.) ; though after the animal has escaped, and the fact of possession is at an end, the civil possession, upon which in this case ownership is based, lasts during THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 57 fresh pursuit provided recapture is not improbable. (D. 41, 1, de adq. rer. dom.; 5 Graius, j?r.; Blaokst. Bk. II. Oh. 25.) And, with regard to movables generally, the test is in ordi- As to nary cases sufficient. As long as a thing is in my house, I can, so far as the thing is concerned, use it at will, and the possession, both in fact and in law, continues ; if I have taken it away and lost it, I can no longer use it at will, and the actual possession is at an end. (D. 41, 2, deposs. ; 3 Paul. 13 ; 13 Ulp. ^jr. ; 25 Pomp, jjr.) In the Roman law this seems to have terminated the civil possession, but it is not clear that the same rule holds in English law. (Pollock & "Wright, Poss. 124; Holmes, Common Law, 237.) Another way of stating the test for the continuance of Altema- possession is that the thing should remain sub custodia — cwtodki ' " res mobiles, cxcepto homine, quatenus sub custodia nostra sint, hactenus possideri" (D. 41, 2, de poss. ; 3 Paul. 13) — and though from such custodia it follows that immediate physical control can be resumed at will, the term looks rather at an existing state of control. A thing is in my custody when it is so situated that the world at large may know that it is in the exclusiye possession of some person, and when I am identified as that person. If we go beyond this state of actual possession, and regard posses- sion as still existing in an animal which has escaped, or in a thing which has been lost, or left in a public place with- out any indication that it is in any person's possession, we are leaving the sphere of actual possession, and are dealing only with civil possession. It would take us too far from our proper subject to Continu- examine more closely the nature of the custodia which ^"^4^0! determines the continued possession of movables, but when «* li3,nd. we deal with land it becomes apparent that Savigny's test of the power to resume control at will is unsatisfactory. 58 POSSESSION OF LAND. Land cannot run away, and it cannot be lost or, under ordinary circumstances, destroyed. Provided, therefore, no one else has entered, there is, in the land itself, no reason why the ]possessor should not at any moment resume the actual use of it. There may be impediments to such resumption apart from the land. The possessor may be made a prisoner, or his means of getting to the land may be interrupted, as by the breaking down of a bridge. But the latter event would hardly be deemed to interrupt the possession, either in fact or in law (Sav. Poss. 255, n. (g) ; Ihering, Grrund des Besitzes-Schutzes, 169) ; and if the former can be regarded as destroying the possession in fact, it has no such effect on the possession in law. (Of. Holmes, Common Law, p. 237.) The examples of forcible detention given in the Poman law suppose detention on the land, and probably it is implied that possession of the land is at the same time acquu'ed by the person using the force. (Savigny, p. 258, and passages there referred to.) But, putting aside these special cases of inability to use the land, and having regard merely to the condition of the land itself, it does not seem to be a sufficient test of actual possession that the person who has once ta.ken possession should be able to resume his occupation at will. A tres- passer, who encloses and uses land, would not be deemed to retain actual possession, if he went away, leaving behind him no signs of his occupation ; or if he simply erected a fence, his possession would not continue after the fence had been knocked down. (See per Bovill, O.J., in Worssaiii V. Vandenbrande, 1868, 17 W. E. 53.) Similarly, if he occupies a house, and then removes his furnitm-e and leaves the door unlocked. In all these cases he may, provided no one else enters, resume possession at will, but this is not enough to continue his possession. He must keep up some visible signs of his occupation. He must from time THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 59 to time be exercising acts of ownership oyer the land, or he must at least take measures to exclude strangers, as by maintaining fences or locking gates and doors. And this accords with the view above adopted as to the nature of physical control. In the case of land it is not merely the power to use the land and exclude others which satisfies the requirement of physical control, but the actual user and exclusion of others. For the continuance of actual possession this user and exclusion must continue to be manifested. The visible marks of occupation continue the possession as to land, in the same way that cudocUa continues it as to goods; or as to both we may apply Ihering's test, that possession continues so long as the possessor is the apparent owner. (Grund des Besitzes- Schutzes, p. 209.) In general the intention to possess does not come into Oontinu- prominence in the continuance of possession. As in the animus acquisition of possession, it is sufficiently apparent from the state of facts relied upon to show physical control. Acts of user, the erection and maintenance of barriers, the leaving of furniture in a house (see per Bramwell, L. J., in Leigh v. Jack, 1879, 5 Ex. p. 272), all these show an in- tention to continue the possession. And if they are at an end, if the occupation is definitely given up,' it matters not, so far as actual possession is concerned, that the possessor retains an intention to possess. The physical element being gone, the actual possession is at an end also. This view does not, perhaps, conflict with the rule recognized in the Eoman law that possession might sometimes be preserved animo solo. The stock illustration was the case of pastures used only at certain seasons of the year. " Saltus hibernos aestivosque ammo possidcmus, quanivis certis temporibus eos relinquamus." (D. 41, 2, de poss. ; 3 Paul. 11.) The explanation appears to be that, by using the 60 POSSESSION OF LAND. pastures at the appropriate season, the possessor did in fact exercise sufficient control over them to support his occupation, and there was throughout, therefore, the pro- per union of the two elements of physical control and intention. Termina- In the Eoman law the civil possession is said to come to civU° ^^ ^^^ ®° ^'-"-'^ ^® either physical control or intention to possession, possess fails. " JEjus quidem quod corpore nostra teneremus ponsessionem amitti vel animo vel etiam corpore." (D. 41, 2, de pass. ; 44 Pap. 2 ; 8 Paul, as interpreted by Savigny, Poss. 247.) In English law we must distinguish between possession for trespass and seisin, and between possession with and without title. Possession Where possession is held with title, the civil possession ^" ' '^' does not depend upon the continuance of occupation. An owner or a lessee who has once entered can maintain trespass against a stranger, although he is not at the time of the stranger's entry actually occupying the land. Neither is the mere failure of user or occupation a discon- tinuance of possession within the meaning of the Real Property Limitation Act, 1833, so as to make the statute run. This requires not only absence of possession on the part of the owner, but also actual possession by a stranger. {Smith V. Lloyd, 1854, 9 Ex. 662.) It may be said that a withdrawal from possession under such circumstances as to show an intention not to return (see Leigh v. Jacl;, 1879, 6 Ex. D. p. 272) — a failure at once of physical control and intention, or a complete abandonment — would have a greater effect; and would terminate the civil possession although the title still continues. In Boe v. Bramston (1835, 3 A. &E. 63), it was held under such circumstances that the statute ran. This seems to be opposed to the later authorities, in which the discontinuance of possession is not made to depend at all upon the intention of the THE ACQUISITION AND LOSS OP CIVIL POSSESSION, 61 possessor, but upon the acquisition of a new possession by a stranger; but probably an owner who had thus put himself out of possession, could not maintain trespass until he had re-entered. If this is correct, then civil possession accompanied by title is not terminated by the mere failure of occupation, but is terminated where there is an intention to give up possession. Where possession has been taken without title, there Possession seems to be no reason to suppose that the civil possession title. lasts for a moment after the actual possession is abandoned, and this is in accordance with the doctrine of Trustees' Agency Co. v. Short (1888, 13 App. Cas. 793), that when a trespasser quits possession, the possession vests again in the owner. " Their lordships," said Lord Maonaghten, " are of opinion that if a person enters on the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons posses- sion, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place." In other words, the civil possession is not only out of the trespasser, but is vested again in the owner. This result seems to depend on the failure of the physical element in possession, and it is not necessary to refer specially to the intention. The possessor has, in fact, discontinued his occupation, whether he intends to return or not. But in the case of intermittent occupation — the so-called possession solo animo — the existence of the in- tention is material ; and, if its continuance can no longer be presumed, the possession is at an end. In Brown v. Notletj (1848, 3 Ex. 219), the plaintiff had taken a close from the tenant for life for a term which expired at Christmas, 1848. The close was used for cattle, except during the winter months when it was covered with water. In November, 1847, the plaintiff drove his cattle out and 62 POSSESSION OF LAND. thomed up tlie gate. The tenant for life died in January, 1848, and the plaintiff obtained a new agreement from a person claiming to be entitled in remainder, but did not enter under it. Shortly afterwards the defendant, who also claimed the land, put a look on the gate, and the plaintiff brought trespass. It was held that he was not in possession. Apart from the determination of his tenancy, his possession would have continued until he did some act showing an intention to terminate it. But after such determination his continuance in possession would have made him a trespasser, and hence some positive act showing an intention to continue it was necessary, such as keeping cattle on the close, or, if the gate had been locked, retaining the key. (Per Parke, B., ibid. 222.) In other words, the possession not being supported by continuous user, it was at an end, when, owing to failure of title, the intention was deemed to have been changed. Continu- The remarks which have been made as to continuance seisin. of possession held under title apply also to the continuance of seisin when the freeholder is the person lawfully entitled. When the true owner has by entry acquired seisin in deed, this lasts until terminated by the transfer or devolution of his title, or by a disseisin. With respect to the seisin of a disseisor, whose title is not yet perfected by the Statute of Limitations, it is difficult to speak with certainty. Upon principle his title is perfectly good save as against the disseisee, and even against the disseisee he ranks as freeholder until the true title is restored by re-entry. Hence the case is analogous to that of posses- sion under title, and the seisin of the disseisor might be supposed to continue exactly as though he was the true owner until re-entry by the disseisee. But for the decision of the Privy Council in Trimtccs' Agenci/ Co. v. Short (1888, 13 App. Oas. 793), it would have been submitted THE ACQUISITION AND LOSS OF CIVIL POSSESSION. 63 that this is the law. In that case, A., the true owner, had a title to land in New South Wales under a Crown grant of 1810. More than twenty years before the commence- ment of the action, possession was taken by B., and the statute thereupon ran against A. Before the statutory period had elapsed, B. abandoned the possession, and subsequently 0. took possession and was in possession at the end of the twenty years. He claimed that the statute had continued to run against A., and that A.'s title, there- fore, was barred. But, as already stated, the Privy Council held, that when B. abandoned possession, A. was placed in the same position as before the intrusion took place. It was not found as a fact that B. was a disseisor. If he was a mere trespasser, the decision is less open to objection ; though even then it seems doubtful whether, after a dispossession, the possession can vest again in the owner without re-entry. But having regard to the cir- cumstances of the case, and in particular to the direction of Martin, C.J., which assumed that the intruder claimed the land, it seems probable that he was a disseisor. If so, the fee was in him, and A. had merely a right of entry, and this state of things must have continued until B.'s actual estate in fee had been terminated in one of the recognized modes — transfer, devolution on death, or fresh disseisin — or until A.'s re-entry. Mr. Challis suggests that the restoration of A. to his original seisin can only be explained by a novel application of the doctrine of remitter. (L. Q,. E. Vol. V. 185.) In fact, however, the case was decided without regard to any technical rules as to seisin, and it appears to be founded rather on the distinc- tion between ownership and possession of the Eoman law than upon the common law distinction between an estate and a right of entry. 64 POSSESSION OF LAND. CHAPTEE IV. THE MAINTENANCE OF POSSESSION. The pro- POSSESSION, 'whether accompanied by title or not, enjoys a possession, certain measure of protection which varies in diSerent systems of law. This protection may be considered ac- cording as it is designed to maintain or recover possession. Trespass. The appropriate remedy in English law for maintaining an existing possession is an action of trespass, but this is not restricted merely to the maintenance of possession. Any disturbance of an existing possession is regarded as a trespass, for which, in the absence of justification, an action will lie. The disturbance may be so serious as quite to put an end to the possession, and hence trespass lies against a disseisor (Litt. s. 430) ; or, on the other hand, it may be so slight as to be only important as an infringe- ment of the possessor's apparent right. [Ellis v. Loftus Iron Co., 1874, L. E. 10 C. P. 10.) But statements that the maxim " de minimis lex non curat " has no application to the law of trespass (Olerk & Lindsell on Torts, p. 267), and that the smallest possible interference with the rights of another is actionable, go perhaps too far, and it may be doubted whether every unlawful entry on land, however harmless or unpremeditated, is actionable. (L. Q,. E. Yol. VIII. 143, n. ; and see Article in 97 L. T. p. 192.) Actual As already pointed out, the possession protected in required, trespass is wider than the ^wssessio of the Eoman law, and includes every possession in fact except that of a servant. THE MAINTENANCE OP POSSESSION. 65 On the other hand, it is restricted to possession in fact, and to maintain trespass the plaintiff must have had an actual possession at the time of the alleged trespass as opposed to a mere right to possess. " It is common learn- ing," said Martin, B., in Hodson v. Walker (1872, L. E. 7 Ex. at p. 69), "that to maintain trespass to real pro- perty the plaintiff must have been in possession at the time the trespass was committed. The gist of the action is the injury to the possession, and the plaintiff's having the title will not enable him to maintain trespass." (Of. Sarper v. Charlesworth, 1825, 4 B. & C, per Holroyd, J., at p. 592.) And accordingly a lessee [Wheeler v. Monte- fiore, 1841, 2 Q. B. at p. 142 ; Ryan v. Clark, 1849, 14 Q. B. at p. 73), or the assignee of a lease (Harrison v. Blackburn, 1864, 17 0. B. N. S. at p. 691), cannot main- tain trespass in respect of the premises until he has actually entered upon them. So, although a statutory possession under the Statute of Uses is sometimes called an actual possession, it is merely a possession in law, and will not suffice for trespass. " If," said Bridgman, 0. J., in Geary V. Bearcroft (1667, Carter, 57), "a man bargains and sells lands, presently the bargainee hath actual possession ; he may surrender, assign, attorn, and release ; yet he cannot on this possession bring a trespass." (Cf. Litchfield v. Ready, 1850, 5 Ex., per Parke, B., at p. 945.) There appear, however, to be two exceptions to this rule. Exoep- One is in favour of a landlord who has let his land at will. ^ ^ ' 1. Lessor Since he is entitled to resume possession at any moment, at will. he is allowed to sue in trespass as though he was in actual possession. (Pollock on Torts, 3rd ed. p. 325 ; Bigelow's L. C. on Torts, p. 355.) And the other depends on the 2. Tres- doctrine of trespass by relation. This doctrine is founded reTaUon. upon the notion that when a person who is in possession is dispossessed, and subsequently recovers possession, he L. F 66 POSSESSION OF LAND. ought, for the purpose of bringing trespass, to be regarded as having remained in possession the whole time. Formerly it appears to have been applied only in oases of disseisin. A disseisee, after re-entry, was able to bring an action of trespass against the disseisor in respect of the continuance of the latter upon the land, and thus recover mesne profits. So, too, he could bring trespass against a stranger for a trespass, not amounting to a fresh disseisin, done during the disseisin, for by re-entry he vested the possession in himself ah initio. (Com. Dig. " Trespass," B. 2.) But in this respect the law was not consistently carried out, and the disseisee was unable to maintain trespass, and recover mesne profits, against persons claiming by title under the disseisor, or even against a subsequent disseisor. {Liford's Case, 11 Rep. 51 a.) In such cases he recovered the whole profits against the original disseisor. (Of. Bigelow's L. 0. on Torts, p. 361.) Modem Eecently, however, the doctrine of trespass by relation extension it jiijji pj of trespass has been extended to the case oi trespass upon a possession by reia- ][g-f^ vacant by the death of the possessor. If he was seised, this is the case of heir and abator, and it was at one time said that the heir's seisin in law was not sufficient to give him the benefit of trespass by relation upon his subsequent entry. (Com. Dig. " Trespass," B. 3.) But this is a hard- ship on the heir, who is left without remedy, and Barnett V. Earl of Guildford (1855, 11 Ex. 19) appears to establish that the doctrine applies both in favour of the heir as to freehold property, and in favour of the executor or adminis- trator as to leaseholds. But this is only on account of the vacancy occasioned by the decease of the ancestor, or testa- tor or intestate, and the doctrine does not apply where by assignment a right to possession is vested in an assignee. Litchfield v. Ready, 1850, 5 Ex. 939 ; of. Badclife v. Anderson, 1858, E. B. & E. 819.) THE MAINTENANCE OF POSSESSION. 67 It is a settled principle that possession, apart from title, Justiaoa- enables the possessor to maintain trespass. Hence, it ia not competent for the defendant to justify his trespass by merely showrag that the plaintiff's title is defective. He may, however, justify by setting up title in himself — a title, that is, giving an immediate right to possession {Ryan v. Clark, 1849, 14 Q. B. 65) — or in some person under whose authority he is acting. At one time the distinction seems not to have been recognized, and it was thought that the defendant could set up the jics tertii. Thus, if he justified his entry as being made by command of, or as bailiff to, the person entitled to possession, the actual possessor was not allowed to traverse the command, or the authority, and the sole question was as to the out- standing title. "It is not material," it was said in Trevilian v. Ptjne {circ. 1700, 1 Salk. 107), "that the defendant has done a wrong to a stranger, if it be none to the plaintiff." But this doctrine would rob trespass of its character as a possessory action, and it has not been followed. In Graham v. Peat (1801, 1 East, 244), it was allowed that a possessor could maintain trespass against a wrongdoer, although the title of the possessor was shown to be bad, and Trevilian v. Pijne was expressly overruled by Chambers v. Donaldson (1809, 11 East, 65), where it was held that in trespass quare claustim f regit, if the defen- dant pleaded title in another by whose command he justi- fied, the command might be traversed. But though it is said generally that the defendant in Title must trespass may justify by setting up title in himself, this right of implies that his title gives him a right to immediate ®'^*'^" possession. Such right carries with it a right of entry, and it is really under the latter right that he justifies. If he has no right of entry he is a wrongdoer, and the person in actual possession can maintain trespass against him. f2 POSSESSION OP LAND. (Cf. Harper v. CJwrle&worth, 1825, 4 B. & 0. p. 592, per Holroyd, J.) This distinction was not observed in the old rules of pleading, and the inaccuracy caused considerable misgiving. (Lamhert v. Btroother, 1740, Willes, 222.) Thus, where the defendant pleaded liherum tenementum, he might well have a freehold estate, and yet have no right to enter. The plaintiff, for instance, might be his' tenant. The plea was accepted, however, in practice as alleging a freehold in the defendant with a right to imme- diate possession {Doe v. Wright, 1839, 10 A. & E. p. 781 ; Ryan v. Clarlse, 1849, 14 Q. B. p. 71) ; and it was for the plaintiff to reply, if he could, that such right did not in fact exist. It must be noticed that the right to immediate possession, carrying with it a right of entry, does not imply a right which is good against aU the world ; it is ' sufficient that it exists against the plaintiff. This will be the case if the plaintiff in obtaining possession has made himself a wrongdoer as against the defendant's earlier possession, although the absolute title be outstanding in' a third person. The point depends on the nature of a right of entry, a matter which can more conveniently be considered in connection with the remedies for recovering possession. {Post, p. 96.) Eoman In the Roman law there does not seem to be any procedm'e quite on the same footing as the action of trespass, but analogies are afforded by the iaterdicts quod n aid clam (D. 43, 24), and uti possidetis (D. 43, 17). The former lay for any forcible or secret interference vsdth the soil, or with things affixed to the soil (D. 43, 24, quod vi aiit clam ; 1 Ulp. 4) , as ploughing or digging a ditch {ibid. ; 9 TJlp. 3 ; 22 Ven. 1), cutting down trees (7 Ulp. 5), or destroying buildings (7 Ulp. 9 ; 9 Ulp. ^jr.). And an interference with the soil was said to be forcible if done after prohibition. {Ibid. ; 1 Ulp. 5.) The remedy was law. THE MAINTENANCE OF POSSESSION. 69 aimed primarily at the violence or secrecy (1 Ulp. 3), and it accrued to the person who was thereby damaged (11 Ulp. 14; 12 Van.) ; to the owner, if the damage touched the reversion ; to the usufructuary or tenant also, if it touched the present enjoyment of the land. (16 Paul. 1.) It did not require that the plaintiff should have been in possession at the time of the injury, and if he was in possession he need not have had possessio in the technical gense. (16 Paul, pr.) The interdict accordingly is not treated as one of the possessory interdicts. The recognized possessory remedy for the maintenance of Interdict possession was the interdict uti possidetis. (D. 43, 17, uii detis. poss. ; 1 Ulp. 4, 8.) This was intended to guard against the disturbance, real or apprehended, of an existing possession ; though, if real, it must have stopped short of putting an end to the possession. Originally, as appears from the form of injunction issued by the prsator — " uti eas aedcs, quihus de agihir .... quo minus ita possideatis, mm fieri veto {ibid.; 1 Ulp. ^r.) — it implied violence, but violence was assumed to exist whenever a possessor was prevented from using the land as he pleased (D. 43, 16, de vi; 11 Pomp.) ; and there are indications that any inter- ference with the quiet enjoyment of the land was a ground for granting the interdict. (D. 43, 17, tdi poss. ; 3 Ulp. 2 — 6 ; of. Windscheid, Pand. I. p. 430 — " Possession is disturbed, without being terminated, when in any single respect the will of a non-possessor is made to prevail with regard to the thing over the will of the possessor.") If this was the case, then, since damages were given for past disturbance (Savigny, Poss. 313 ; D. 43, 17, idi poss. ; .3 Ulp. 11), the effect would be very much the same as in trespass. But on the other hand it is said that the disturbance must be of a permanent character (Sohm's Inst, trans, by Ledlie, 253) — must really threaten the 70 POSSESSION OF LAND. possession — and this accords better with the original object of the interdict, which was probably to maintain the existing possession until the determination of the question of title. To entitle the plaintiff to the interdict, he must have possessio, that is, he must have civil posses- sion as opposed to mere natural possession (D. 43, 17 uti pass.; 1 Ulp. 6; 3 Ulp. 8), an exception, however, being made in favour of the usufructuary. {Ibid.; 4 Ulp.) But where "possessio " existed, it was immaterial that its origin was wrongful. " Qualiscumque eiiim possessor hoe ipso, quod possessor est, plus juris hahet quam ille qui non possiclei." {Ibid.; 2 Faxil.) Defence. The remedy being solely possessory, the defendant could not justify the disturbance by setting up title. He might, however, plead one of the exceptiones vitiosm possessionis ; that is, that the plaintiff had obtained possession from him wrongfully {vi, dam), or that he held under him as tenant at wiU (precario). {Ibid. ; 1 Ulp. pr., 5.) In favour of the defendant, who as against the plaintiff is entitled to possession, and who can recover it by a possessory remedy, the slight violence involved in the trespass is overlooked. In other words, out of the wrong to the defendant's previous possession, there arises a right of entry which justifies a trespass on the possession of the plaintiff. If, however, the trespass is by a stranger, then, as just stated, the plaintiff is not prejudiced by the tortious nature of his possession, and the interdict is available for him. {Ibid. ; 1 Ulp. 9.) Thus if A., who has possessio, whether with title or without, is ejected by B., A. has a right of entry under which he can justify a disturbance of B.'s possession. But as against a third party C, B.'s possession is pro- tected, notwithstanding its wrongful origin. CHAPTEIi V. THE RECOVERY OF POSSESSION. So long as there is a distinction between proprietary and Proprie- possessory actions, a claimant may recover possession of possessory- land either upon his right of property in a proprietary ^°^^°^- action, or upon his right of possession in a possessory action. In the former case, the title to possession is finally settled as between the parties to the action ; in the latter case it is settled only provisionally, and the party defeated in the possessory action may still be able to gain possession by a proprietary action. In the Roman law and in the former English law, the distinction between the two forms of procedure was well established. In the present English law it has disappeared, and in an action to recover possession of land, the plaintiff and defendant alike may set up any title they have. (a) Proprietary Actions. A proprietary action, as just stated, is an action in Roman which the plaintiff relies on his right of property. ^' Ordinarily, perhaps, the term implies that he claims as owner, though the action is in principle the same when the plaintiff claims possession in respect of some sub- ordinate right derived under the owner. But ownership, or dominium, in the Eoman law, is essentially different from the estate in fee simple which takes its place in English law, and the distinction involves a corresponding 72 POSSESSION OF LAND. difference in proprietary actions. In Roman law there can be only one owner, and lie remains owner whether or no he has possession. He may lose his ownership by remain- ing out of possession, but till that event has happened his legal position is unchanged. He is owner, and the person who has obtained possession is no more than possessor. The ownership which the law recognizes implies a title good as against all the world, and when a claimant desires to recover possession by a rei vindicatio, the ordinary pro- prietary action, it is a title of this kind that he must prove. The mere possessor cannot bring the action, though, when his possession is such that time is running in its favour, when, that is, it has originated in lawful title, and is bona fide, a special remedy, the actio PuhUciana (D. 6, 2, de Puhl. act. ; 1 Ulp. pr.), was introduced by the praetor for his benefit. Apart from this it would seem that a previous possession by the plaintiff in a proprietary action was only effectual as presumptive evidence of ownership. (Cf. Paul. Sent. V. 11, 2 ; Ihering, Grund des Besitzes- Schutzes, 52.) He would fail, therefore, if the defendant could in any way show that he was not in fact the owner. The action of ejectment appears to have been sometimes treated as though it required the same strict proof of title. (Of. Doe V. Barnard, 1849, 13 Q. B. 945.) In former In English law proprietary rights are more intimately law! associated with possession, that is, with the form of pos- session known as seisin. The person who is seised of land is owner de facto iu a sense in which this phrase could not be used of the '^possessor" of Roman law. He has an estate which can be alienated or devised, and which has aU the incidents of ownership as regards strangers. If it was gained by disseisin, the disseisee has no estate, but merely a right of entry. This right is, at the present time, capable of being devised or alienated, and it is not liable to THE EECOVEEY OF POSSESSION. 73 be tolled save by lapse of time ; but the person entitled to it, although he is properly spoken of as owner, is merely pwaevdejure. There are now, indeed, two titles. "As soon as a disseisin is committed, the title consists of two divisions ; first, the title under the estate or seisin ; and secondly, the title under the former ownership " (Prest. Abst. II. 285) ; and in dealings with the land, each of them has to be taken into account. The principle that seisin confers a title as against Writ of strangers seems to have been recognized in the writ of ^^ right, the proprietary action of the early English law. In form, indeed, that went as near alleging absolute owner- ship as was possible under the circumstances. An allega- tion merely of the seisin in fee of the claimant or his ancestors, which was sufficient in a possessory action, was not sufficient in a writ of right. It must also be stated that the seisin had been made effectual by the taking of " esplees " or profits. This implied that union of jus proj)rietaiis a^ad jus possession is, which went by the name of droit droit. (Bracton, III. 360 ; f . 206 b ; Co. Litt. 266 a.) Moreover, the seisin was alleged to be de jure (Bracton, V. 432 ; f . 372 b) ; and it was settled so late as the present century that this allegation was essential. (Dowland v. Blade, 1804, 5 East, 272.) But the allegation of seisin dejure is not to be taken to TitKneed bar a person entitled under a tortious seisin from recovering perfect. in a writ of right. Such a person must establish the seisin under which he claims, and must show that it existed in the time of the king named in the pleadings (Litt. s. 514) ; moreover, if it was the seisin of an ancestor, he must deduce title under the ancestor. All this is the foundation of his title. But when it has to be determined whether the title thus set up shall prevail against the tenant, the question is not whether it is an absolute title 74 POSSESSION OF LAND. good against the world, but "whether it is relatively better than any title which the tenant can show. (Of. Ihering, Grrund des Besitzes-Schutzes, 73 n.) Sometimes, indeed, the writ of right is spoken of as though it required absolute title. It is said that it is a writ brought by him who has the full and mere right of property to the land in him, to recover the right of possession. (Booth, Eeal Actions, p. 85.) But, in fact, the "mise" was joined (Co. Litt. 294 b), or issue taken, on the question which of the two parties, the demandant or the tenant, had the greater right. {Majus jus ; Grianville, trans, by Beames, p. 58; Bracton, Yol. Y. 108; f. 331 b; Booth, Eeal Actions, 96.) In other words, though the question related to "mere right," yet this was only as opposed to right of posses- sion, and the matter to be determined was whether the de- mandant or the tenant had the " more mere right " (Litt. ss. 482, 485, 488) ; in short, whether, putting aside the jus possessionis, a phrase which will be considered subse- quently, the demandant had right to the land as against the tenant. (Of. Litt. s. 487.) It may be noticed that Bracton expressly recognizes that there may be different rights of property, a better right and a worse right, existing together (Yol. YI. 433 ; f. 435) ; and that although a person has " most possession and most right," another may still have " maj'iis j'lis." (Yol. III. 4 ; f. 160.) Writ of But the matter does not rest there. A case is given by a tortious Littleton (s. 478), where a writ of right might be brought on a tortious seisin, and there is no hint that exception could be taken to the defect in the demandant's title, nor is any such suggestion made by Lord Coke. " If a man be disseised by an infant who alien in fee, and the alienee dieth seised, and his heir entereth, the disseisor being within age, now is it in the election of the disseisor to have a writ of chmi fuii infra wtatem, or a writ of right against the Beism. THE RECOVERY OF POSSESSION. 75 heir of the alienee, and which writ of them he shall choose, he ought to recover hy the law." The result seems clear, that as in general the person actually seised ranked as owner for the time being, so, after seisin had been lost, he might recover in a proprietary action as against all persons claiming under a subsequent seisin. As between the suc- cessive seisins, the only test is priority in point of time. " The first and more ancient is the most sure and more worthy title ; Quod prius est, i-erius est, et quod j^irkis est tempore, potiiis est jure." (Co. Litt. 347 b.) And the " most ancient " is at the same time the " most mere " right. (Litt. s. 478.) The title which a demandant must establish in a writ of right is not an absolute title against all the world, but a title relatively better than that of the tenant. (Of. per Lord Ellenborough, O.J., in Bowland v. Slade, 1804, 5 East, p. 289.) (b) Possessory Actions. The result of affording legal protection to possession — juspos- possessio in the Eoman law, seisin in the English law — is *''***''""- to create a right of possession. The term Jus possessionis is used occasionally in Eoman law (D. 41, 2, de pass.; 4:4: Pap. pr. ; 48, 6, ad L. Jul. de n pub.; 5 Marc. 1; cf. Sav. Poss. 17), and it is familiar in English law. But so soon as a right of possession is recognized, it is capable of existing apart from the possession on which it was founded. It may, therefore, descend to an heir, and after the possession has been parted with — as to a tenant — it may enable the former possessor to recover possession. The distinction between possessory remedies in the Eoman and in the early English law depends on the extent to which this quality is ascribed to the right of possession. In the Eoman law possession is treated as altogether Property distinct from property. " JVi/iil commnne hahet proprietas g^gjon!" 76 POSSESSION OF LAND. cum possessionem (D. 41, 2, rfe^oss.; 12 TJlp. 1.) Posses- sion is protected by the interdicts, but these are in general personal to the possessor, and the resulting right of possession is not dealt with as an independent right. It exists solely by virtue of the specific remedies, and does not rank as a species of ownership. In English law the position of seisin is different. It cannot be said that seisin — even tortious seisin — has nothing in common with ownership. TDhq jus possessionis founded on seisin is iden- tical with an estate in fee simple — or with some smaller interest carved out of such an estate — whether defeasible, as an estate acquired by disseisin (Co. Litt. 58 b.), or not ; and it confers all the advantages of a. jus piropirietatis as against strangers. The jus possessionis is the ownership de facto, and exists as an independent right until the owner ffe yi«re restores his estate by entry or action. The range of possessory remedies is correspondingly extensive, and ia fact the distinction between proprietary and possessory actions was chiefly in respect of procedure. Possessory actions existed for aU the ordinary wrongs which an owner could suffer, and it was usually sufficient for him to rely upon his right of possession. The right of possession was more easily asserted than the right of property, and an owner who had the right of possession was entitled to take advantage of this fact. Conversely, as against strangers, the right of possession carried with it the right of pro- perty, and the disseisor had his choice of bringing a possessory action or a writ of right. The two rights are only contrasted when the owner has lost his right of possession, and is driven to rely solely on his right of property. Changes The changes in the two rights are frequently described of posses- in the books. If A., the true owner of land, is in posses- property. sion, he has jus proprktafis and jus possessionis. If he is THE RECOVERY OF POSSESSION. 71 disseised by B., B. has at first no right at all against A., though as against the rest of the world he has at once ajus possessionis. But when A. 's right of entry is tolled, B. has now a complete Jus possessionis against A., and if A. enters, B. wiU recover against him in a possessory action. A. retains, however, for a time his right to bring a possessory action against B. (Co. Litt. 283 b.), and when this is barred, he has, for a further time, his writ of right. (Co. Litt. 266 a. ; 239 a., note (1) ; Black., Bk. III. Ch. 10; Gilbert's Tenures, p. 23.) And all this time, since B. can bring a writ of right on his tortious seisin against strangers, it seems correct to say that, as against them, he has a Jus proprietatis. In form, the distinction between proprietary and posses- Defence to sory actions, whether in the Eoman or the early English action. law, is well marked. In a possessory action neither plaintiff nor defendant can allege title as owner. The plaintifE alleges merely possession — that is, p)ossessio or seisin — in himself or in some person through whom he claims, and a specific wrong to such possession. The defendant, on the other hand, may set up a previous possession in himself or in some person through whom he claims, and may plead by way of justification a wrong to that possession. This is equivalent to saying that he sets up a right of entry. In the Roman law the defence is limited to the three cxceptiones vitioscB piossessionis {vi, clam, precario), and no direct reference is made to a right of entry. In the English law the defences are as numerous as the possible infringements of the Jus possessionis, and the right of entry is recognized as an independent right existing in favour both of the person originally wronged and his successors in title until for some special reason taken away or "tolled." But the substance of the defence is in each system the same — a previous wrong to possession for 78 POSSESSION OF LAND. Infringe- ments of the right of posses- sion. wliich tlie defendant migM have had a possessory action. In neither can the defendant set up his right of property. For simplicity it has been said that in a possessory action the plaintiff alleges a wrong to his possession. This is sufficient for the case where he has himself been dispossessed, but it is more correct to say that he sets up a violation of his right of possession, and the possession on which this is founded may be a possession which he him- self has never had, or which he has parted with. Treating the matter on this footing, the right of possession may be violated in three ways : by a wrongful entry on an exist- ing possession, by a wrongful entry on the death of the possessor before the entry of the heir, or by a wrongful holding over after the termination of a limited interest granted by the possessor. In English law these are the three cases of disseisin, abatement, and deforcement. The Roman law recognizes wrongs corresponding to the first case and the third case, but probably not to the second. Moreover, since in English law the jus possessionis springs out of an estate in fee which is capable of settlement, we have also the case of intrusion. In considering the various forms of possessory actions it is convenient to classify them according to the wrongs they were intended to remedy. I. — Possessory Remedies in the Roman Laiv. It would be out of place here to attempt any detailed examination of the possessory remedies of the Eoman law, but it is believed that a short statement of their general scope and effect will be of assistance, rather, perhaps, by way of contrast than of analogy, in understanding the relation between proprietary and possessory actions in the former English law, and also in understanding the present system under which the distinction between the two classes of action has ceased to exist. THE EECOVEEY OF POSSESSION. 79 (1.) Dispossession. In the Roman law a possession lost by force could be Interdict recovered by tlie interdict unde m. (D. 43, 16, de vi; 1 XJlp. 1.) There was equally a forcible dispossession whether the possessor was actually ejected from the land, or, possession having been taken in his absence, he was prevented from re-entering. [Ibid. ; 1 Ulp. 24; 3 Ulp. 8.) So, too, if a stranger entered secretly {clam), and refused to leave, this was a forcible dispossession (D. 41, 2, deposs.; 6 Ulp. 1) ; and a special interdict de clandestina possessione — if it ever existed, which is doubtful (Sav. Poss. 348 ; cf . D. 10, 3, comm. div. ; 7 Ulp. 5) — became unnecessary. It was essential, however, that the taking possession should be against the wiU of the possessor, and hence the inter- dict did not lie in the case of a delivery of possession under the influence of fear. (D.43,16, t^ef/; 5Ulp.) To maintain the interdict the plaintiff must have had possessio. " Inter- dictum autem hoc nulli competit nisi ei qui tunc cum dejicere- tur possidebat " — in the technical sense, that is, not merely in possessione — " nee alius dejici nsus est quam qui possidet." {Ibid. ; 1 Ulp. 23.) As a matter of convenience, however, the interdict was granted, like the uti 2^ossidetis, to the usufructuary {ibid. ; 3 Ulp. 13, 14) ; and, where the person ejected was not the possessor, it lay in favour of the person on whose behalf he was occupying. (D. 43, 16, de vi; 1 Ulp. 22; 20 Labeo, Paulus.) And title was immaterial. It was sufficient that the plaintiff had been possessor, even though he was not the owner. (" Vel non dominus, D. 43, 16, de vi; 8 Paul.) Originally the defendant could use the same plea as in Defence, trespass, and could allege that the plaintiff himself had committed a wrong to the defendant's previous possession. {Vi, clam, precario ; Gains, IV. 154.) In other words, such 80, POSSESSION OF LAND. earlier wrong gave Mm a right of entry. But this right was subject to an important restriction as to the manner in which it might he exercised, and although the use of unarmed force {vis quotidiana) was permitted, it was for- bidden to have recourse to arms {vis armata). Hence, if the defendant had entered in this manner, the entry was wrongful, his plea failed, and he would be compelled to restore the possession. {Ibid. 155.) But subsequently this distinction was abolished. By a constitution of a.d. 389 (C. 8, 4, tinde vi, 7) violence of all kinds was punished by loss of possession, and the result seems to have been to deprive the defendant in the interdict of the advantage of pleading the previous wrong to his own possession. (Of. Ortolan's Justinian, II., p. 763.) Hence, when the inter- dict is described by Justinian, it is expressly said that no such plea is available. (Inst. IV. 15, 6.) In addition to this, violence was punished criminally under the Lex Julia de vi, and the offender, if he had used vis publica, might be condemned to banishment; if vis privata {sine armis), to forfeiture of the third part of his goods. (Inst. IV. 18, 8.) The result of these laws was at once to make a violent entry a crime, and to take away the right of entry which was previously recognized in the interdict procedure. The Roman law thus differs from the English law which, while making a forcible entry a crime, leaves the civil right un- touched. {Post, Chap. VII.) Right of Originally, then, an ejected possessor had a right of ^^ ^' entry to be exercised with slight force only. Thus if A., a possessor, was ejected by B., B. did not at once gain a possession protected against A., although it was protected against all other persons : " Qui a me vi possidebat, si ab alio dejicicdur liabet interdictuiii." (D. 43, 16, de vi ; 1 TJlp. 30 ; Ulpian wrote before the Constitution of a.d. 389, above referred to.) Subsequently, however, A. was not THE RECOVEEY OP POSSESSION. 81 allowed a right of entry, and the possession of B. was protected at once against all the world. He obtained, that is, by his wrong, a complete jus possessionis. This assumes that A.'s earlier possession had been really ended, for it was permissible to use even armed force to defend an existing possession from attack, or to recover it imme- diately. (iVbw ex intervallo, ibid. ; 3 Ulp. 9.) In other words, the law recognized a right of fresh re-entry. Ordinarily, in Eoman law, the parties to a possessory Parties action are the persons actually concerned in the wrong interdict. complained of, the possessor who has been ejected and the wrongdoer. But, as to the possessor, there seems to be no reason why, in the event of his death, restitution should not be made in a summary way to his heir, and the heir accordingly was allowed to bring the interdict. (D. 43, 16, de vi; 1 Ulp. 44.) As to the defendant, it is to be remembered that the interdict was not only for the restoration of possession, but also for damages, it being the right of the plaintiff to be put entirely in his original position {ilid. ; 1 Ulp. 31), and this seems to have been a ground for restricting it to persons implicated in the wrong complained of. Thus it lay against the ejector himself, whether the wrong was done by him personally, or by other persons acting under his orders (D. 43, 16, de vi; 1 Ulp. 11, 12) ; and also against any person who wrongfully {dolo nialo) procured the ejectment to be made. {Ibid. ; 3 Ulp. 12.) But it did not lie against the heir or other person claiming under the ejector or against a stranger. (D. 43, 17, uti poss. ; 3 Ulp. 10 ; 43, 16, de vi; 7 Paul.) To a certain extent this defect was cured by the rule that the interdict lay against the wrongdoer, although he had parted with the possession, and he was compelled to pay the value of the plaintiff's interest (D. 43, 16, de vi ; 1 Ulp. 36 ; 15 Paul.) ; and it made no L. G 82 POSSESSION OF LAND. difference that he had lost possession without any fraud or negligence on his part. But there was still the possi- bility that he might die in possession, and that his heir would profit by his ancestor's wrong. Hence, although the heir was not liable to the interdict, and could not be called upon to pay damages, a different remedy, an actio in factum, lay to recoYcr the possession. And as this was merely to recover the possession, and was not in any sense penal, it was not limited, like the interdict, to the year. (D. 43, 16, de vi; 1 Ulp. 48 ; 2 Paul. ; 3 Ulp. pr., 1.) And a similar action was allowed against the wrongdoer him- self, after the interdict was barred by the lapse of the year. This remedy appears to be based on the principle that possession gives a title. The judgment does not punish the wrong, but simply restores the possession to the party who, as against the other, has the better right. (2.) Wrongful Entry on Death of the Possessor. Entry on It appears to be very doubtful whether the Roman law possessor. ^^^ ^'^J remedy for the case where a stranger entered upon the death of the possessor; a remedy, that is, in which the heir recovered as against a stranger solely on proof of the possession of the deceased and his own title as heir. The point is a crucial one for the rival theories of Savigny and Ihering. If, as Savigny held, possessory remedies are designed to check violence, it is sufficient to give them to the actual possessor. The heir who has not entered need not be considered. Hence, in spite of the division of interdicts into interdicts for maintaining, recovering, and obtaining possession (Inst. lY. 15, 2), and the mention of the interdict quorum bonorum as an interdict for obtaining possession, Savigny rejects such a remedy as contradictory. According to him, possessory remedies must be founded on the existing or previous THE RECOVERY OF POSSESSION. 83 possession of the plaintiff. He cannot by such a form of pro- cedure originally obtain possession. Savigny suggests two grounds on which the interdict quorum bonoriim, by which an heir under certain circumstances obtained possession of the goods of his testator, might rank as possessory ; by fictitiously ascribing possession to the heir when he has in fact no more than a right to possess ; or by allowing him to base his remedy on the possession of his testator. (Poss. 290.) The fiction is the seisin in law of English law, but there is, Savigny says, no authority for it in Roman law ; and although the interdict in question has been referred to the latter ground, he denies that it was in fact founded on possession. A different view is taken by Ihering. According to him possessory remedies exist in favour of the owner to save him from the burden of proof of title, and since this burden is equally heavy for an heir who has never been in possession, his theory requires that the heir should have an appropriate possessory remedy. Such a remedy he suggests was afforded by the hereditatis petitio for the heir at law, and by the bonorum possessio for the heir in equity. (Grrund des Besitzes-Sohutzes, 85 et seq.) But the details of the controversy do not concern us. The important point is, that the Roman law did not distinctly recognize that the right founded on possession went, like a right of property, to the heir. (3.) Wrongful Continuance in Possession. In general, when a possessor parted with the actual WrongM possession of the land to a tenant, he retained the possessio ^^o. of in himself. Hence, if the tenant, either during the term possession. or afterwards, disclaimed the landlord's title, this dis- claimer was regarded as a forcible dispossession of the latter. The tenant at once acquired the possessio, and the landlord might bring against him the interdict unde vi. g2 precano. 84 POSSESSION OF LAND. (Sav. Poss. 49 ; D. 43, 16, de vi. ; 12 Marc. ; 18 Pap. pr.) In the corresponding case in English law the tenant did not become actually seised. It was only a disseisin at the election of the landlord. Interdict But upon a grant of land upon request [precario), which created a tenancy similar to a tenancy at will, the legal effect in regard to possession was different. Th.& possessio passed to the tenant, and if he refused to deliver up the land on demand, the landlord had against him the interdict de precario. (D. 43, 26, de prec. ; Sav. Poss. 354.) By this remedy he or his heir (D. 43, 26, de prec. ; 8 Ulp. 1 ; 12 Gels. 1) recovered possession from the tenant, and probably from the heir of the tenant. {Ibid. ; 8 Ulp. 8 ; Savigny, Poss. 357.) The remedy may be explained in two ways. The original possession of the landlord gives him a jus possessionis. Out of this right the interest of the tenant is derived, and if he holds over after his interest has ceased by demand of possession, he violates the landlord's right of possession. The interdict is thus brought into line with the other possessory remedies. But the matter may also be treated as one of estoppel. If, it is said in the Digest, a person who could claim a thing as his own, chooses to take it from the pos- sessor as tenant at will {precario), he is bound by such taking, for what he obtains is the possession which is another's. (D. 43, 26, de prec. ; 22 Yen. pr.) In the present English law this latter principle supplies to a certain extent the want of a separate system of possessory remedies. II. — Possessory Remedies in English Law. 5 been remarked above that in English la'w ions were so numerous that an owner who of possession could usually obtain the redress he required Forms of It has been remarked above that in English law posses- sory actions were so numerous that an owner who was out THE EECOVERY OP POSSESSION. 85 by their means. He did not, save under special circum- stances, rely on his title as owner and bring a writ of right. He relied, in the first instance, on his jus jwssessionis, and considered which of the recognized species of injury had been done to it. These injuries were all included under the name of ouster, the various forms of ouster being disseisin, abatement, intrusion, and deforcement. (Black. Book III. Ch. 10.) Discontinuance was a form of deforcement, but the actions by which it was remedied were classed as proprietary. It will be convenient to state first the nature of the remedies for disseisin, for abatement and intrusion, and for deforcement respectively ; and then to consider, with regard to all, the manner in which the defendant might justify the apparent wrong. (1.) Disseisin. The principal remedy for disseisin was the assize of novel Assize disseisin, a remedy, says Bracton, "multis vigiUis excogitatam disseisin. et inventam . . . . ut per summariam cognitionem absque magna Juris solemnitafe quasi per compendium negotium ter- minetur." (Yol. III. 38 ; f. 164.) The objections to the writ of right were the trial by battle and the numerous essoins, or excuses for delay, by which the trial might be postponed. As an alternative to trial by battle there was introduced trial by the great assize, but the manner of choosing the assize furnished additional opportunities for delay (Eeeves, Hist, of Eng. Law, I. 189), and, though the Court had some power of control, the proceedings were extremely dilatory. The design of the assize of novel dis- seisin, and also of the assize of mort d'ancestor, was to avoid raising the question of right, and to deal instead with the mere question of fact : in the one case, whether the plaintiff had been disseised by the defendant ; in the other, whether 86 POSSESSION OF LAND. the ancestor of the plaintiff had died seised. Such ques- tions of fact were referred to a jury sumraoned by the sheriff, and the matter was disposed of summarily, no essoins being permitted. (Grlanv. trans, by Beames, 304, 311, 339.) The plain- By the Writ of novel disseisin the plaintiff complained that the tenant had unlawfully disseised him of his freehold — " injiiste et sine judicio disseisivit eum de libera tenemento suo." The disseisin was effected so soon as the claimant had been dispossessed against his will ; and dispossession, as in the Roman law, took place whenever a person seised, or an agent ,or a member of his family in seisin — for with Bracton in seisina is equivalent to in possessione — in his name, was in any way ejected, or if, being absent at the time of the entry by the stranger, he was subsequently prevented from retui-ning. A disturbance in the user of the land, too, might amount to a disseisin (Bracton, Yol. III. 16 ; f. 161 b) ; though, if it feU short of dispossession, it would be a disseisin only for the purpose of the assize, a dis- seisin, that is, at election. But to be disseised the claimant must have been seised, and this is implied, too, in the statement that he had been disseised " of his freehold." How such seisin was acquired has been shown above {ante, Chap. III.) ; and, in the case of a disseisor, Bracton did not allow his seisin to be complete until the disseisee's right of entry was gone. When this had happened the disseisee lost as well his civil as his natural possession, and could only reinstate himself by means of an assize. (Bracton, III. 30 ; f. 163 b.) If, then, the terms of the writ had been strictly followed, it appears that, until the disseisor had acquired this perfect seisin, he had no freehold, and could not truly say that he had been disseised of his free- hold. He would therefore fail as against a mere stranger as much as against the disseisee. But the law adopted the THE RECOVERY OF POSSESSION. 87 principle that possession ought to be universally protected save as against a person having right to enter, even though such protection might not be strictly consistent with the terms of the writ. If, it is said in one place, a possessor has no right of holding, yet a stranger has no right to eject him (Bracton, III. 274 ; f. 196 ; of. III. 384 ; f. 209 b) ; and copying the words of Paulus already quoted (D. 43, 17, uti poss. 2), Bracton observes elsewhere (III. 270 ; f. 196) that, under whatever circumstances a man is in possession, whether of his own property or another's, and whether lawfully or unlawfully, from the mere fact that he is in possession, he has more right {phis juris) than one who is out of possession and has no right. And this doc- trine was applied in practice by refusing to allow a stranger to plead want of freehold in the disseisee. Although, says Bracton, a man is possessing unlawfully, and so would have no action against the true owner, yet he will have an assize against such as have no right, and his want of free- hold cannot be pleaded against him. (Bracton, III. 42 ; f. 165 ; and cf. III. 388, f. 210, where a disseisor is spoken of as having a quasi-freehold against him who has no right.) But though the claimant in an assize need not show a complete seisin in himself, his possession must be such as may ripen into seisin ; he must not, for instance, be merely tenant for years. Concurrently with the assize of novel disseisin there lay Wiit of a wait of entry sur disseisin. (Booth's Eeal Actions, 'fysIislZ p. 174.) Writs of entry bore a considerable resemblance to the writ of right, and were adapted from it for the purpose of referring to a jury cases of wrong to the jus possessionis. It seems at times to be doubtful whether they were in their nature proprietary or possessory, but in later times they were possessory, and this is apparent from the fact that in a writ of entry the possessor might recover 88 POSSESSION OF LAND. against the true owner. They were the special remedy for deforcement, or wrongful continuance in possession, and under that head they will be further considered. But there was a writ of entry sur disseisin, in which the claimant complained, exactly as in an assize, that the tenant had disseised him of his freehold, and which 'was said, there- fore, to be in the nature of an assize. As a concurrent remedy it was, perhaps, not necessary. (Cf. Booth, p. 172.) Its value lay in the fact that it could be adapted so as to enable the claimant to recover possession from persons against whom an assize would not lie. Parties. The judgment in the assize of novel disseisin was said to be threefold : restitutory, directing the claimant to be put in seisin of the land; penal, punishing the disseisor by fine and imprisonment for the violence ; and in damages for the unlavrful detention. (Bracton, III. 14 ; f. 161 b.) And being thus penal, it was at first confined to the disseisor and disseisee. Hence, it did not lie in favour of the heir of the disseisee, though, as to the disseisor, the term was extended by Bracton to include not only the actual disseisor, but also the tenant at the time the civil possession was terminated. Not till then was the disseisin complete. Consequently the feoffee of the disseisor, or a subsequent disseisor, then holding the land, was liable. (III. 34 ; f. 164.) But this restriction as to parties did not accord with the real scope of possessory actions in English law. It might suffice in an action which was analogous to the interdict wide vi, and which aimed merely at protecting an existing possession and punishing the aggressor. It did not suffice to assert the Jus possessionis when this was no longer merely personal, but was practically a right of property, and when possessory actions had been adopted as the ordinary remedies for an owner. It was necessary to make the THE EEGOVERY OF POSSESSION. 89 possessory action avail for persons claiming under tlie disseisee, and against persons claiming under the disseisor, and also against subsequent disseisors. Some change was made in this direction in the assize of novel disseisin (cf. per Lord Mansfield, Taylor v. Horde, 2 Sm. L. C. 9th ed. p. 704) ; hut the extension was only fully carried out by "writs of entry. In allowing the writ to the heir of the disseisee there was no difficulty. He simply alleged the injury to his ancestor's seisin instead of his own (Bracton, Vol. II. p. 455 ; f. 218 b ; cf. Booth, p. 175) ; and so, where the disseisor himself was no longer in possession, the case was met by some special form of the writ. If the tenant claimed throtigh the disseisor immediately, this fact was stated, and the writ was said to be in the per ; if through some person to tohom the disseisor had granted the land, these facts were stated, and it was in the per and cui. At common law the remedy extended no further, but by statute (Statute of Marlebridge, 52 Hen. III. c. 30 ; 2 Inst. 153) a writ of entry might be brought in the pod, however many changes had taken place in the possession, the alle- gation being that the tenant had entered after the original disseisin (Co. Litt. 238 b ; Black. Bk. III. Ch. 10 ; Booth, pp. 175, 176) ; and this included the case of a subsequent disseisin. (2.) Abatement and Intrusion. Owing to the division of the fee into successive estates, Abate- the English law had to provide for two cases of unlawful Stmsion. entry on the death of the person seised, namely, on the death of a tenant in fee, and on the death of the tenant of a particular estate. The entry of a stranger before the heir or devisee in the former case was called an abate- ment ; his entry before the remainderman in the latter, an intrusion. "An intrusion," says Blaokstone (Bk. III. 90 POSSESSION OF LAND. Ch. 10), " is always immediately consequent upon the termination of a particular estate ; an abatement is always consequent upon the descent or devise of an estate in fee simple." In the case of abatement upon an heir the recognition of the wrong shows also that the heir has a right. He has a right of possession founded on the possession of his ancestor ; or more strictly, his ancestor's jus possessionis has descended to him. But the English law, while speaking of jus jiossessionis, did not always take the strict analytical view. To secure recognition of the wrong it was necessary that there should have been a violation, not of a mere right, but of an existing seisin, and hence a seisin in law was ascribed to the heir. This is said to be not a mere right to possess, but a presumption of actual possession. (Williams on Seisin, 53.) Thus the English law adopts the fiction which Savigny suggested would support a possessory action by the heir, but which he failed to find in the Eoman law. {Ante, p. 83.) Simi- larly a seisin in law was ascribed to the remainderman. It was by virtue of this seisin in law that abatement and intrusion were regarded as violations of an existing seisia, and were therefore classed as disseisins (in the wider sense of the word, 2 Sm. L. 0. 9th ed. p. 710, note). Assize of The proper remedy for abatement was the assize of d'anoestor. mort d'ancestor. This lay in favour of the heir, where his predecessor, being a father, mother, brother, sister, uncle, aunt, nephew, or niece, died seised, and a stranger entered. The heir had to prove that his predecessor was seised in fee at the time of death ; that he died within the time of limitation ; and that he himself was the next heir. (Booth's Eeal Actions, 207.) The first point concerned possession merely, not title. Indeed, it is expressly said that the writ lay, although the predecessor was in by disseisin. {Ibid.) When the predecessor was a kiasman THE RECOVERY OE POSSESSION. 91 of remoter degree, a similar remedy was provided by the writs of aiel, besaiel, and cozenage. Conom'rently with, these remedies lay a writ of entry Writs of siir abatement, which, like other writs of entry, could be ,', ' ' '^ ' sur abate- brought against the original abator, or in the degrees — the m^nt; per, the per and cui, and the post — against others holding the land after him. When the assize and the other writs Just mentioned became obsolete, this remained as the sole remedy. An example of its use occurs in 1795. [Smith V. Coffin, 2 H. Bl. 444.) For the case of intrusion sur intru- a writ of entry sur intrusion was allowed in favour of the remainderman or reversioner. (Booth, p. 181.) (3.) Deforcement and Discontinuance. The early English law recognized numerous cases in Unlawful which a possession lawfully acquired might be unlawfully ance ia continued. The estate taken by the tenant of the land possession, might either have been originally of limited duration, or, though unlimited, it might have been taken under circum- stances which precluded his retaining it. Thus the grant might be voidable for some incapacity in the grantor or fault in the grantee ; or it might fail by reason of the insufficiency of the estate of the grantor. A further case arose where an heir kept the widow out of her dower, or a co-heir out of his share of the inheritance. The appropriate remedy for wrongful continuance in Writs of possession was a writ of entry, as, for instance, the writ of entry ad terminum qui prceteriit, which lay against a lessee, whether for years or for life, who held over after the expiration of his term. "Writs of entry are classed by Braoton with proprietary actions (Vol. V. 2 ; f. 318), but they differed from a writ of right in that issue was taken not on the mere right, but on the fact of holding over ; and this was a matter which might be submitted to a 92 POSSESSION OF LAND. jury. So in a writ of entry 8ur disseisin, issue was taken on the disseisin. Further, there was a slight restriction in the admission of essoins, the essoin de malo lecti not being allowed. Turning Originally, however, the holding over was only referred entry to to a jury if the oircumstances which showed it to be unlaw- riSit° and ^^ could be proved by the actual sight and hearing of the vice versd. -jvitnesses ; in other words, where the terms of the grant and the entry under it could be proved by living testimony. If it was necessary to have recourse to traditional testimony, the writ was said to be turned into a writ of right, and the mere right was then determined by battle or the great assize. (Bracton Y. 9; f. 318 b.) Conversely, the claimant, by offering suitable proof, might turn his writ of right to a writ of entry, but this required the consent of the tenant, who might elect whether to put himself on a jury concerning the entry, or determine the right by battle or the great assize. So the tenant, by setting up a feoffment to himself from the ancestor of the claimant, might turn the writ of entry into a writ of right, and join issue whether he had greater right by reason of the feoff- ment, or whether the claimant ought to hold the land. Writ of It is said that the claimant must not, as in the count on possessory a writ of right, allege seisin in his own demesne as of fee reme y. ^^^ ^j^^ taking of esplees, or here, too, the tenant may treat the writ as a writ of right, and defend by battle or the great assize. He must only claim the land as his possessory right, if he held for life, or as his inheritance, if he held in fee. But in later times this distinction was neglected, and the pleadings in a writ of entry might allege seisin as of fee and of right by the taking of esplees. (See, for example. Booth, Eeal Actions, 177.) On the other hand, writs of entry ceased to be Kable to be changed into writs of right. They were classed with THE RECOVERY OF POSSESSION. 93 possessory actions, and this was in accordance with their real nature. They are brought upon the right of posses- sion, and they allege a specific violation of such right. The violation may be a disseisin, abatement, or intrusion, as in the writs of entry denoted by these terms ; or the violation may be a holding over after the termination of an estate taken under a grantor who had the right of possession, as in the writ of entry acf terminum, qui prceteriit and other writs about to be mentioned. In any of these cases the disseisor, or some person claiming under him, may succeed against the disseisee. In the case of holding over on the termination of a limited estate, the right of the grantor to recover against the grantee is commonly put on the ground that the grantee is estopped from disputing the grantor's title. Perhaps this circumstance has tended somewhat to obscure the true nature of -wiits of entry as actions simply possessory. Besides the writ of entry ad terminum qui prceteriit for Holding holding over by a tenant under a grant for life or years, avoidance writs of a similar nature were provided for all ordinary cases °grmin^a- of holdinsr over after the avoidance or other termination of tion of ° _ estate. an estate taken under a grant from the person actually seised. Where the grant had been made by a lunatic, possibly the lunatic himself, but at any rate his heir, could recover by a writ of entry dum nonfuit compos mentis; where by an infant, the infant, on attaining twenty-one, recovered by the writ dum fuit infra cetatem. An instance of failure of the grant from default in the grantee arose where a woman had given a man lands in fee or in tail to marry her in convenient time. If he failed to do so, she recovered by the writ of entry causa matrimonii prcelocuti. A feoffment in fee made by a tenant for life, in dower, or by the curtesy, conferred, of course, only a defeasible estate as against the remainderman or other person entitled on the 94 POSSESSION OF LAND. Discon- tinuance. Holding over against "widow or co-heir. death of the feoffor. If he waited until such death, he had a writ of entry at common law, hence called the writ ad communem legem. But though such feoffment was a cause of forfeiture, and gave the remainderman an imme- diate right of entry, he had during the life of the feoffor no action. In the case of tenant in dower, this defect was supplied by the Statute of Gloucester, and a writ was given known as the writ of entry in casit proviso. Subsequently, in analogy to this, a writ in consimili casu under the Statute of Westminster II. c. 24, was allowed for the case of alienation by a tenant for life or by the curtesy. (Booth, 200.) Similar to the position of a remainderman was that of a married woman whose lands had been alienated by her husband. Upon the termination of the marriage by divorce she recovered the lands by a writ of entry cui ante divorciiim, or her heir recovered them by a sur cui ante diwrcium. Upon its termination by the death of the husband the writs were cui in vita and sur cui in vita respectively. In principle the case of alienation by a tenant in tail was the same as that of alienation by any other limited owner, but it was treated differently. It effected a dis- continuance of the estate tail, with the result that the estate could only be restored by action, and consequently the issue had, upon the death of the tenant in tail, no right of entry. And even then they did not recover by a writ of entry, but by a formedon, an action which was ranked with proprietary, not with possessory actions. Where an heir entered and refused to assign the widow her dower, or a co-heir entered and refused to share the land with his co-heirs, the case resembled abatement, save that the entry of the heir or co-heir was lawful. But the death of the ancestor gave the widow or other heirs as good a right as the heir so entering, and it was a deforcement to THE EECOVEEY OF POSSESSION. 95 exclude them. The widow, however, had no remedy which was recognized as possessory. She had to bring a writ of light, either a writ of right of dower, or of dower unde nihil hahet. (Booth, 118, 166.) The nuper ohiit, on the other hand, which was the remedy for the co-heir, seems to have been regarded as possessory. (Booth, 204.) The above writs of entry stated the circumstances under Form of which the tenant had entry into the land, and from which ^try° it appeared that his continuance on the land was wrongful. " They are called," says Booth (Eioal Actions, 172), "writs of entry, not only because they speak of the entry of the tenant in the writ, but hkewise show for what reason the possession ought not to be detained from the demandant." Thus, a writ of entry ad communem legem upon alienation by tenant in dower claimed land into which the tenant had no entry save through the tenant in dower who was dead, the demandant at the same time alleging that he was heir to her husband. (Booth, 190.) But the reference to entry was not essential, and it was enough to state the facts which impeached the tenant's possession. A writ dum fuit infra cetatem simply claimed the land which the demandant had granted to the defendant while he was of full age ; a writ ad terminum qui prcBteriit claimed land which had been demised to a tenant for a term which had expired. All these writs of entry, like the writ of entry sur disseisin, might be brought by a demandant upon the seisin of his ancestor, and by being framed in the per, the ^;er and cui, or the post, might be brought against the actual holder of the land, although he was not the original wrongdoer. (4.) Defence to Possessory Actions. In stating the nature of a possessory action {ante, p. 77), Plea of it was said that the defendant in such an action cannot ^defen- plead his title generally, although in some cases he is ^^^^ 96 POSSESSION OF LAND. right of allowed to plead in justification of the wrong a previous possession. , i ■ • , i , t . wrong to his own possession, or, more accurately, to his own jus possessionis. In the Roman law such a plea was called an exceptio vitiosce possessionis. In the English law it is sometimes said that the plaintiff may plead his title, hut this is misleading. It does not mean that he may plead that he is owner ; it means that he may estahlish a right of entry, and since such a right springs out of a violation of the jus possessionis, the principle is really the same as in the Roman law; the defendant alleges an earlier wrong to the right of possession on which he relies. It was a good plea, we are told, as well in an assize as in a writ of entry sur disseisin, that the defendant was seised of the land until by the plaintiff disseised, whereupon he re-entered. (Booth's Real Actions, pp. 180, 274.) The difference is that in English law the wrong need not have been done by the actual plaintiff in the possessory action. A disseisee has right of entry on the alienee or the disseisor of his disseisor. And, moreover, as a consequence of the more extended recognition of the jus possessionis — th.ejusjMssessionis being for many purposes placed on the footing of a right of property — the list of wrongs out of which a right of entry may arise is longer than in the Roman law. Right of entry springs not only out of a disseisin (vi, clam), or a withholding by a tenant at will (precario), but also out of an abatement, an intrusion, or any of the numerous cases of deforcement. Eight of That right of entry springs out of a wrong to the jtcs ^' possessionis, and is not confined to the true owner, is abundantly clear. In general it existed side by side with the right to bring a possessory action. In the case of disseisin Bracton calls it the " primum et principale reme- dium,'" and so in the case of the other wrongs to the right of possession described above. Sometimes, indeed, it was THE EECOVEEY OF POSSESSION. 97 the only remedy. A person whose right of possession was infringed, whether by unlawful entry, or by unlawful continuance in possession after a lawful entry, had always a right of entry, though the law might not give him a right of action. Thus, before the iatroduction of the writs of entry in casii proviso and in consimili casu, the remainderman or heir might treat an alienation by the tenant for life, or by the curtesy, or in dower, as a cause of forfeiture, and forthwith enter on the alienee, although, till the death of the limited owner, he had no right of action. And if a right of entry is given to B. in conse- quence of a wrong to his possessory right done by C, it is immaterial that B. is himself a wrongdoer against A. Of this numerous examples are to be found. If B. has disseised A., and is himself disseised by C. (Co. Litt. 277 a.), or makes a feoffment to C. on condition, and the condition is broken (Litt. s. 409), or, being an infant alienes to C. in fee (Litt. ss. 408, 478), in all these cases B. may enter on 0. And if A., after his right of entry had gone, had entered on B., it is clear that B. might have re-entered. The duration of the right of entry has been already Duration noticed under the head of disseisin. With Bracton the of entry right was no more than a right of fresh re-entry. It was to be exercised at once — flagrante disseisina (Bract. III. 24; f. 162), incontinenti (III. 348; f. 206) — and while it lasted the disseisin was not complete. The result is the same as in the interdict unde m after the abolition of the excejjtiones ntiosce possessionis. But the tendency of the Enghsh law is the reverse of the Eoman, and the plea of wrong to an earlier jus possessionis, or the defence of right of entry, ia more and more allowed. Professor Maitland has -shown (L. Q. E. IV. 286) how at first the right of entry is allowed against the disseisor, though not against one L. H 98 POSSESSION OF LAND. Effect of descent cast on pleadings. Pleas to descent cast. ■who takes under him by title, either as feoffee or heir. Then the feoffee is ■ deemed to be a party to the wrong, aad the right of entry is allowed against him, unless he has been in possession for a year and a day. (Co. Litt. 237 b.) Ultimately, the feoffee lost even this measure of protection, and right of entry was denied to the disseisee only as against the heir of the disseisor. At the same time, although down to 1833 right of entry was always liable to be toUed by a descent cast, it was frequently kept alive by continual claim. When once the plea of wrong to an earlier possession — the exceptio mtiosce possessionis — was allowed, it was allowed equally to each side. After the defendant's plea, the plaintiff had his replication, the defendant his re- joinder, and so on. In these pleadings each party could trace back the defects of his opponent's jus p)ossessionis, until some fact was reached upon which they were at issue. In practice these pleadings were limited by the doctrine of descent cast. Before long one party would probably plead a dying seised, and as this prima facie showed a complete Jus possessionis in him, the next step on the opposite side was correspondingly restricted. The other party might plead a continual claim, and so avoid the effect of the descent cast. An interesting example of this is given in Eastell. (Entries, 275 a.) In a writ of entry stir disseisin, T. complained that W. S. had unjustly and without judgment disseised him of a certain manor with the appurtenances. Plea, that before T. had anything in the manor one W. A. [W. W. in the text, but this seems to be a misprint] was seised in his demesne as of fee and enfeoffed W. S. in fee. Express colour is then given to T.'s claim by the fictitious aver- ment of a previous charter to T., by which, for want of possession in the grantor, nothing passed. This being THE EECOVEEY OP POSSESSION. 99 matter of law, the case was tlius removed from the jury and referred to the Court. (Stephens on Pleading, 2nd edit. 240.) The plea continues that T. entered on W. S. and W. S. re-entered. T., in his replication, admits this entry by him, and goes a step further back to justify it. Eeplication that before the feoffment to "W. S., one "W. W. was seised in fee, and died seised, leaving J. W. his heir. J. "W. entered and enfeoffed T. in fee, and then W. S. committed the disseisin complained of. Rejoinder, that before W. "W". had anything in the land, W. A. was seised in his demesne as of fee, and was disseised by J. B. W. A. made continual claim. J. B. thus seised, enfeoffed W. "W. in fee, and W. A.'s claim was continued during W. W.'s life. W. W. died, leaving J. "W. his heir, who entered and enfeoffed T. Then "W. A. entered and enfeoffed W. S. Hence the earliest right of entry is that of W. A., but this is lost by the descent cast on the death of W. W., unless kept alive by continual claim. T. accord- ingly puts in a rebutter traversing the contiaual claim. So again, the other party might traverse the dying seised, or else, by alleging a more recent descent on his own side, might show that the jus possessionis has been transferred to him. In the last case, he was said to make a title at large. His opponent might then answer with the plea veniat assisa super tituhmi, and the recognitors thereupon inquired into all matters and circumstances concerning the title. (Booth's Real Actions, 213.) By "title " here is to be understood title under \h.Q jus possessionis, not the mere right. The above remarks contemplate the case where the Defence ■,.Tf..,T . 'I p I in action wrong eomplamed oi m the assise or writ oi entry was an grounded unlawful entry — a disseisin, an abatement, or an intrusion, f^j^"^^" Where it was a deforcement — a wrongful continuance in tinuauoe m posses- possession — the defendant could deny the facts alleged, sion. For instance, in a writ of entry dum non fuit compos, he h2 100 POSSESSION OF LAND. could traverse the non compos mentis. (Booth, p. 189.) But he could not, while admitting the plaintifi's allega- tions, set up a right of property in himself, and claim to continue in possession in virtue of such right. This is simply another way of saying that a writ of entry sur deforcement was a possessory action. The plaintiff relied upon the jus possessionis, or seisin in fee, whether tortious or not, out of which the limited or defeasible estate of the tenant had been derived, and against this no Jics proprietatis in the tenant could be alleged. At the same time the tenant might under certain circumstances take the same defence as in other possessory actions. He might allege a previous wrong to his own possession, conferring a right of entry on himself. In this case, unless he had accepted the limited or defeasible estate by deed so as to be estopped by the deed, his original right of entry justified his con- tiQuance in possession. This seems to be the true explana- tion of the circumstance that right of entry at the time of the acceptance of the limited or defeasible estate was a good defence to an action for the recovery of possession upon the termiaation of the estate, though in practice the case was treated as an instance of the doctrine of remitter. The grantee of the limited or defeasible estate was not forbidden to set up a right of property, on the ground that the action was merely possessory ; but he was said to be estopped from disputing the title of the grantor, and this estoppel arose out of the mere acceptance of the estate, and was not confined to the case of a grant by deed. But if at the time of the creation of the estate (provided it was not created by deed) the grantee had a right of entry, he was then remitted to his earlier title, and the estoppel did not arise. Eemitter, The strictness of possessory actions in excluding any earlier title which was not accompanied by right of entry THE RECOVERY OF POSSESSION. 101 was modified by the doctrine of remitter. By virtue of this doctrine a tenant, A., whose estate was defeasible by the entry, or at the suit of B., but who was also entitled by virtue of an earHer seisin ia fee, as against which B.'s estate was wrongful, might, under certain circumstances, use his earlier title to defeat B.'s right of entry or right to a possessory action. " Eemitter," says Littleton (sect. 659), "is an ancient term in the law, and is where a man hath two titles to lands or tenements, viz., one a more ancient title, and another a more latter title ; and if he come to the land by a latter title, yet the law will adjudge him in by force of the elder title, because the elder title is the more sure and more worthy title." In other words, if there are three titles, X, T, and Z, Y wrongful as regards X, and Z as regards T, and if A., who is entitled to the land under title X, actually comes to the land under title Z, he may be deemed to be in under his earlier and better title X. It is not necessary, indeed, that title Z should be wrongful as regards title Y. If a disseisor aliens in fee to the disseisee, this may be a remitter to the disseisee. (Litt. s. 693.) And so there need not be three distinct titles. If tenant in tail discontinues the estate tail by enfeoffing his son in fee, on the death of tenant in tail the son is remitted to the estate tail. (Sect. 660.) But for our present purpose it is convenient to assume three titles, each of the last two wrongful as regards the one imme- diately preceding it. Consequently Z must have arisen by a disseisin agaiast B, or if taken under Y, its continuance must be a deforcement. A remitter after a disseisin might take place under the Remitter following circumstances. Suppose A., seised in fee, to be disseisin, disseised by B., and B. to die seised, leaving D. his heir, who enters. A.'s right of entry is now gone, and if he ejects D., this is a disseisin for which D. could recover in 102 POSSESSION OF LAND. an assize or writ of entry. But if, after such second disseisin, A. dies seised, leaving 0. Ms heir, C. has two titles, his title X under A.'s earlier, and his title Z under A.'s later seisin. So far as Z is concerned, it is inferior to D.'s title T, and D. could recover against him by a writ of entry sur disseisin in the per. But under the doctrine of remitter he is deemed to be in under title X, and may set this up as a defence to D.'s action. . (Of. Litt. s. 659.) And this favour is allowed him because he was himself no party to the second disseisin, that is, to the wrong under which title Z was created, but came to the land under that title by act of law. (Of. Co. Litt. 347 b, n. (1) ; Black. Bk. III. Ch. 10.) Eemitter Next take the case where title Z is derived under title T, ing over, but is for a limited estate or otherwise liable to be termi- nated. Upon such termination the person claiming under T wHl, apart from remitter, obtain possession from the tenant under Z in an action based on deforcement. Thus, suppose A., a woman seised in fee (title X), to take a husband who alienes the land to B. in fee (title Y). B. lets the same land to the husband and wife for the term of their two lives (title Z), saving the reversion to himself and his heirs. Ordinarily B. would, on the failure of the lives, recover the land as against the heir of the wife, but under the circumstances the wife is remitted to her earlier title. A person siti juris who, having a good title to land, accepts an estate under a defeasible title does so at his peril. It is his " folly " to accept possession under a bad title when he had a good title which he might have asserted. But it is otherwise with a married woman. " No folly can be adjudged in the wife which is covert in such a case." (Litt. s. 666.) And so in the case of an infant. (Sect. 664.) Eemitter, however, as pointed out above, is allowed in the case of an owner sui juris, provided he had a right of entry THE RECOVERY OF POSSESSION. wlien he accepted the terminable estate, and provided he did not take it under a deed indented so as to be estopped from disputing the title of his alienor. (Sect. 693.) The result as stated by Butler (Co. Litt. 347 b, note (1)), is that " there is no remitter where he who comes to the defeasible estate comes to it by his own act or his own assent. Hence, the defeasible estate to entitle the party to be remitted must be made to him dm-ing infancy or coverture, or must come to him by descent or act of law." To this must be added the case of remitter by virtue of right of entry. 103 104 POSSESSION OF LAND. CHAPTEE VI. THE ACTION OF EJECTMENT. Action of ejectment substi- tuted for real actions. All the actions mentioned in the preyions chapter were founded upon seisin, and were availahle only for a claimant who was entitled to recover seisin. The ejectment of a lessee was a disseisin of the freeholder, and the latter had his remedy by assize or writ of entry; but the lessee, being merely possessed, had no means of recovering possession, and his only remedy against the disseisor was in damages for the trespass by the writ of ejectione firmce. (Blackst. Bk. III. Ch. 11.) In the reign of Edward IV., however, it was held that upon this writ the lessee could recover his term as well, and the action having a double effect — the recovery of the term and the recovery of damages — it was called a mixed action in contrast to actions which were either purely real or purely personal. Subsequently it was found that the action afforded a ready means of determin- ing the title of the freeholder. To recover the term the lessee must show that he had received a valid grant of it, and since at the time of the grant the lessor must have been in possession, this meant that he had right of entry. Any entry under such right would vest the possession in him. Ejectment, therefore, raised the question whether the lessor had title to the land accompanied by right of entry, and this might well be brought before the Court, although the lease itself was a fiction. Hence, the action of eject- ment came to be used instead of real actions for the trial THE ACTION OF EJECTMENT. 105 of title to land, and so completely was the change efieoted that in the time of Elizabeth ejectment appears to have become the common form of action for this purpose. (Co. Litt. 239 a, note (1) ; Eoscoe's Eeal Actions, II. 481 ; Eeeves' Hist, of Eng. Law, III. 759 n.) In the first instance the proceedings connected with the Tie con- lease, even when they were designed solely to bring in question the freehold title, were real proceedings. The actual plaintiff entered upon the land and made a lease to A., who at the same time entered under the lease. A. was then ejected by a third person B., called the casual ejector. For the ejectment A. brought his action against B. and obtaiaed judgment to recover the term and damages. He enforced the judgment by a writ of possession. AH this went on in the absence of the real owner of the land, who might in consequence find himself suddenly turned out of possession by the sheriff, and, when the action came to be used in this manner, it was necessary to give him a chance of coming in to defend. But the Coiirts at the same time took occasion to make the non-essential parts of the procedure piarely fictitious. The points to be proved to maintain the action were the title of the lessor, the lease to A., A.'s entry or possession under the lease, and his ouster by B. The last three, however, were quite irrele- vant to the determination of the first, and in the seven- teenth century the practice was introduced of allowing the possessor of the land to come in and defend upon terms of confessing the lease, entry, and ouster. For this purpose he entered into a rule of court called the consent rule, and the trial then took place on the title. It miffht well happen that title to the land existed Action ijiTi n depended although the right of entry had been lost by a descent or on right discontinuance, or by the bar of the Statute of Limita- ° ^'^'T- tions, and then a real action would have been the only 106 POSSESSION OF LAND. remedy. Such cases must have frequently occurred, and it has been remarked as singular that, with this defect in the action of ejectment, real actions should have gone so much out of use. (Oo. Litt. 239 a, note (1).) At the beginning of the present century an attempt seems to have been made to revive them (ibid.), and a case of a writ of right is to be found so late as 1838. {JOavies v. Loiondes, 5 Bing. N. 0. 161 ; see Jayne v. Price, 1814, 5 Taunt. 326.) But when, in 1833, rights of entry ceased to be liable to be tolled, except by a lapse of time which also destroyed the right of property, the action of ejectment became more efficacious, and it was considered safe to abolish, with certain slight exceptions, the old real actions, both proprietary and possessory, and to leave ejectment as the only means of asserting title to land. Title in It is commonly said that in ejectment the plaintiff ejectment. j,g(,oyers On the strength of his own title, not on the weakness of the defendant's. {Martin v. Strachan, 1743, 5 T. E. 107; GoodtitleN. Baldwin, 1809, 11 East, p. 495.) " In this action," said Lord Mansfield in Roe v. Harvey (1769, 4 Burr. p. 2487), "the plaintiS cannot recover, but upon the strength of his own title. He cannot found his claim upon the weakness of the defendant's title. For possession gives the defendant a right against every man who cannot show a good title." The rule, however, states nothing as to the nature of the title which the plaintiff must show ; it only requires that the plaintiff must strictly prove the title on which he himself relies, without in any way seeking assistance from the defendant's want of title ; and, in fact, it does no more than impose on the plaintiff in ejectment the same burden as is imposed on the plaintiff in any other action. He must prove his case. ' If he has himself been in possession, the rule does not say that such possession cannot by itself give him a title ; but, if he has THE ACTION OF EJECTMENT, 107 not been in possession, he must prove that the title of some previous possessor — whether merely possessory or not — is vested in him. It was a failure in this latter point that called forth Lord Mansfield's statement of the rule in Roe v. Harvey. Neither Mrs. Haldane nor Urry, the two lessors of the plaintiff, had been in possession, but Mrs. Haldane claimed as devisee under the will of a previous owner. Had IJrry been out of the way her title would have been established. One of the plaiatifE's witnesses, however, stated that Mrs. Haldane had con- veyed her interest to IJrry, and that the deed was in Court. Hereupon the defendant insisted that the deed should be produced, and, this not being done, the plaintiff was non-suited. Upon a motion for a new trial the majority of the Kiug's Bench held that the plaintiff, by his own witness, had proved he had no title under Mrs. Haldane, and he had not proved a title under Urry. Hence the non-suit was right. The result is adversely criticized ia the note to Doe v. Billyard (3 Man & Ey. p. 113), and it is suggested that the dissenting opinion of Yates, J., was correct, namely, that the plaintiff was not bound to produce the deed, and that the question, whether he had shown a title, should have been left to the jury. Where, on the other hand, it is sufficiently proved that the title is in one or other of two persons under each of whom the plaintiff claims, he can recover. In Doe v. Parlie (1836, 4 A. & E. 816), the title was either in the heir-at-law or the assignees of a bankrupt, and it was held that the plaintiff who claimed on the demise of the heir- at-law and also of the assignees was entitled to recover. But for the decision in Damson v. Gent (1857, 1 H. & N. Possession . not a title 744) presently to be mentioned, it would appear to be in ejeot- correct to say that bare possession does not give the ^^^ ' possessor a title to recover in ejectment, even as against 108 POSSESSION OF LAND, a mere wrong-doer, that is, as against a person wlio enters witliout any apparent title. In Hawkins' Pleas of the Crown (I. 510), where it is said that "bare possession is a good title against all persons except him who hath the right," the author is insisting that possession can lawfully be maintained against strangers, not that it gives a title to recover in ejectment. In Allen v. Bivington (1671, 2 Saund. 110 a), indeed, it was held that priority of possession alone gives a title to the plaintifE in ejectment against the defendant and all the world except the true owner; and in Asher v. Whitlock (1865, L. E. 1 Q,. B. 1), Cookburn, O.J., speaking of the plaintiff's title in eject- ment, said that possession was " good title against all but the true owner." But Allen v. Rivington does not seem to have been accepted as an authority, and in Asher v. Whitlock the possession was treated, not as bare possession — that is, trespass-possession — but as the possession of a disseisor. It was, therefore, accompanied by seisin in fee, and the seisin in fee was the title. That ejectment and trespass stand in this respect on a different footing was expressly laid down in Boe v. Barnard (1849, 13 Q. B. 945). Possession, said Patteson, J., in delivering the judgment of the Court, is not sufEcient in ejectment as in trespass to maintain the action, and this authority was foUowed in Nagle v. Shea (1874, Ir. E. 8 0. L. 224). The distinction is illustrated by Doe v. Barber (1788, 2 T. E. 749). A lease of a rectory house taken from the rector became void under 13 Eliz. c. 20 by reason of the non-residence of the rector for eighty days. The defen- dant entered upon the lessee without any colour of title, and in ejectment by the lessee it was held that though the defendant was a stranger and a wrong-doer, the lessee could not recover. He could clearly have recovered in trespass. THE ACTION OP EJECTMENT, 109 To say that mere possession does not give a title to Seisin in recover in ejectment is by no means tlie same as saying tho'ugk that the plaintifE in ejectment must show a title good a°tit°e"^' against the world. Ejectment has always been regarded against as a possessory action, and it is possessory, not only in the sense that the action, being for possession and not for a declaration of title, must be brought against the actual occupier {GledhiU v. Hunter, 1880, 14 Ch. D. 496) ; but in the sense that it could formerly be brought on the right of possession as opposed to the right of property, and consequently stood upon the same footing as the old possessory real actions. Ejectment, says Blaokstone (Book III. Ch. 11), " is founded on the same principle as the ancient writs of assize, being calculated to try the mere possessory title to an estate." Thus if, after a disseisin, the entry of the disseisee was taken away by a descent cast or the statute, and the disseisee nevertheless entered, the heir of the disseisor, or the disseisor himself, as the case might be, who had now a complete jus posses- sionis, would recover in ejectment, notwithstanding that in a vsrit of right judgment must have been for the disseisee. {Smith v. Tyndal, 1706, 2 Salk. 685 ; cf. Preston on Abstracts, II. 294.) At the present time there can be no jus possessionis complete against the person lawfully entitled, and the distinction between the right of possession and the right of property has passed away with the old real actions in which they were respectively asserted. But it is still useful to refer to this view of ejectment. Probably, as I have above attempted to show, seisin in fee, though tortious, gave a right of property which could be successfully asserted in a writ of right as against strangers. Certainly it gave a right of possession which could be asserted in a possessory real action, and therefore also in ejectment. 110 POSSESSION OF LAND. Asker V. This view of ejectment is supported by the Judgment of TFhuiodc. ^j^^-^^^^^ (jj^ ^ j_^^^^, ^_ WJiitlocJc (1865, L. E. 1 Q. B. 1) . At Michaelmas, 1842, Thomas Williamson inclosed from the waste of a manor a piece of land by the side of the highway. In 1850 he inclosed more land adjoining, and built a cottage. He occupied the whole tiU his death, in 1860. By his will he devised the premises to his wife for life, while unmarried, and then to his daughter, Mary Ann Williamson, in fee. After the death of the testator, his widow remained in possession with the daughter, and in April, 1861, married the defendant. From that time they all three resided on the premises till the death of the daughter, in February, 1863. On her death the defendant and his wife, the widow of the testator, continued to reside on the premises ; the widow died in May, 1863, and eject- ment was brought, in 1865, by the heir-at-law of the daughter. Against him it was urged that the case was that of two trespassers, and that the one last in possession was entitled to keep the land until the person having title ejected him. But Oockburn, O.J., treated the testator and the defendant as successive disseisors, and in the course of the argument observed that, under the old law, the dis- seisor had a good title against all but the disseisee. In his judgment he said: "I take it as clearly established, that possession is good as against all the world, except the person who can show a good title ; and it would be mis- chievous to change this established doctrine Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him, ' You have no more title than I have, my possession is as good as yours,' surely ejectment could have been maintained by the original possessor against the THE ACTION OF EJECTMENT. Ill defendant. All the old law on the doctrine of disseisin was founded on the princijjle that the disseisor's title teas good against all hut the disseisee. It is too clear to admit of doubt that, if the devisor had been turned out of posses- sion, he could have maintained ejectment." And the estate which was thus good against all the world but the true owner, the disseisor could devise, conferring his own right on the devisee. " The devisor might have brought ejectment, his right of possession being passed by will to his daughter, she could have maintained ejectment, and so, therefore, can her heir. . . . On the simple ground that possession is good title against all but the true owner, I think the plaintiffs entitled to succeed." For the present it is sufficient to construe this last sentence as referring only to the possession of a disseisor. The tortious seisin of the disseisor gave him a right of possession for any infringement of which an assize or writ of entry would lie, and equally the disseisor might bring ejectment. At the same time it is to be noticed that disseisin was not found as a fact, and it is not clear that, under the old law, Thomas Williamson would have been regarded as a disseisor. It may be that Cockburn, C J., was intending to put any possessor, in whose favour the statute is running, on the footing of a disseisor, and upon this supposition the case wiU be used subsequently in favour of the theory that a change has taken place in the nature of the possession upon which the right of possession for the purpose of ejectment is based. {Post, p. 124.) The result so far is, that bare possession does not give OH rule as a title to recover in ejectment ; seisin in fee, although yeara^po^- tortious, does. In other words, the plaintiff in ejectment session. may recover on his title to possess as against the defen- dant, although a better right to possess is outstanding in a third person. This proposition, perhaps, is not consistent 112 POSSESSION OF LAND. i. Eti- witli some of tlie authorities. Lord Holt seems to have complete Considered that the plaintiff must have a complete jus pSsession. possessionis, and upon this ground he allowed twenty years' possession to give a good title. In Stokes v. Berry (1699, 2 Salk. 421), he ruled that if A. has had possession of land for twenty years without interruption, and then B. gets possession, upon which A. is put to his ejectment, though A. is plaintiff, yet the possession of twenty years is a good title in him, as if he had still been in possession ; and in another case {ibid.) he gave as the reason, " because a possession for twenty years is like a descent which tolls entry, and gives a right of possession which is sufficient to maintain ejectment." But it is clear that a disseisor had a right of possession on which he might maiatain ejectment against strangers immediately upon the dis- seisin, and that he was not bound to wait until, by the tolling of the entry of the disseisee, his right of possession was complete, ii. Evi- Later authorities speak as though the plaintiff was perfect bound to show not merely a right of possession but a right *'*^^" of property good against the world. Consequently he was liable to be defeated if by any means it appeared that the real title was in a third person. " It is sufficient," it is said, " if the defendant can show the real title to the land to be out of the lessor of the plaintiff. (Roscoe's Real Actions, II. 488 ; cf. Adams on Ejectment, 28 ; note to Boe V. Bilhjard, 3 Man. & Ey. p. 113.) If by "real title " is meant the title of the true owner, these passages must be wrong ; otherwise, how could the disseisor recover in ejectment against the disseisee after the entry of the latter was tolled ? Possibly they are to be imderstood as re- ferring only to the legal estate, for it was well settled that the plaintiff must be defeated if the defendant showed that the legal estate was outstanding. In other words the THE ACTION OF EJECTMENT, 113 defendant could set up an outstanding estate ; he could not set up an outstanding right of entry. If it was ever really thought that the plaintiff in ejectment must show a title good against the world, this would sufficiently account for the selection of twenty years as the period which would raise a presumption of such a title. Such period did not bar the real actions that might be brought in respect of an outstanding right, but it barred ejectment and rendered it improbable that any such right would ever be asserted. Another explanation of the period in question is that, iii. Evi- in the absence of any evidence as to the title under which g^isi^ in the possession was held, twenty years' possession was evidence of seisin in fee. " If no other title appears," said Lord Mansfield in Demi v. Barnard (1777, Cowp. 596), " a clear possession of twenty years is evidence of a fee." In that case the suggestion was that the plaintiff was really entitled under a term of 2,000 years, and that the deed creating the term ought to be produced. But Lord Mansfield held that, if such a term existed, it would probably be merely a term attendant on the inheritance, and its existence did not interfere with the presumption of a fee arising from twenty years' possession. In the case of possession by a feoffee, the same period was required to raise a presumption of livery of seisin, if no direct evidence of livery was obtainable. (Doe v. Cleveland, 1829, 9 B. & 0. 864 ; Doe v. Davies, 1837, 2 M. & W. 603.) But whatever was the exact meaning of the period of twenty years, whether it was treated as giving a com- plete right of possession, or as raising a presumption of an absolute right to possess, or of seisin in fee which, whether accompanied by an absolute right to possess or not, at any rate gave a right against strangers, it is clear that twenty years' possession gave a good title in ejectment, and, 114 POSSESSION OP LAND. Twenty years not now re- quired for presump- tion of title. Correct rule that possession is evidence of seisin in fee. apparent!}', where possession only was relied on, this period was not only sufficient, but was essential. {Leids v. Price, 1761, 2 Wms. Saund. 175 a; Boe v. Parls it is difEoiilt to reconcile it with the judgments just quoted. In Doe V. Barnard, ejectment was clearly distinguished from trespass on the ground that bare possession is not a title in ejectment, while it is a title in trespass. At the same time Davison v. Gent must be supported if possible. It is ridiculous to allow redress to a disseisor against a subse- quent disseisor, and to refuse it to a lessee who has been evicted by a stranger because he has a flaw in his title. It might have been held that possession under an apparent title was sufficient for ejectment ; but, though Lord Bram- well did refer to the meritorious nature of the plaintifE's possession, this was not the point on which the case was decided. In the absence of perfect title, the plaintiff was allowed to rest upon his mere possession. It is submitted that there is only one way to account for the introduction of this perfectly new principle. The legal consequences of possession have been changed both directly and indirectly by the Eeal Property Limitation Act, 1833. They have been changed directly, inasmuch as mere untitled posses- sion is now sufficient to make the statute run against the owner. Formerly there must have been an adverse posses- sion, and this practically meant an adverse seisin. But in changing the nature of an inchoate title under the statute, the Legislature have also changed the nature of the posses- sion to which legal protection is afforded. As a matter of history, so far as concerns the recovery of possession, seisin is everything, bare possession nothing. In actual life 12i POSSESSION OF LAND. Further applica- tion of Asher v. Whitloch. seisin is no longer entitled to this pre-eminence. The right of possession, consequently, which the common law has always recognized, has, by the Real Property Limita- tion Act, 1833, been impliedly placed on a more extended basis. It rests now on mere possession, and not on seisin alone. This is the real principle which underlies Davison V. Oent. To say, as was there said, that a plaintiff is entitled to rely on possession as against a mere wrongdoer, is equivalent to giving him a right of possession against strangers, and this right of possession ranks, like the old right of possession, as a species of property. In other words, it is a possessory title which is capable of devise, and which, if not devised, will in general devolve upon the heir. But at this point there is a distinction. Under circumstances similar to those in Davison v. Gent — where, that is, possession has been taken by one who purports to be lessee — the new right of possession will be personal property, and will devolve accordingly. In brief, posses- sion is now a good root of title, not only for the purpose of acquiring a perfect title under the statute, but also to confer upon the possessor a title to recover against strangers in ejectment. In referring above to Asher v. Whitloch (1865, L. R. 1 Q. B. 1), we treated the case as an instance of the old right of possession, which arose on a disseisin in favour of the disseisor, and, to avoid quoting it too readily as an autho- rity in support of the present suggestion, it seemed better, in the first instance, so to treat it. At the same time, while the judgment of Oockburn, O.J., was undoubtedly based on the law of disseisin, no attention was paid to the ques- tion whether disseisin had been found as a fact, and this circumstance shows a tendency to assume disseisin wherever there is a possession without title, whether it is strictly the possession of a disseisor or not. But if the view now THE. ACTION OF EJECTMENT. 125 suggested is correct — ^if disseisin is no longer important, and dispossession has taken its place ; if any possessor in favour of wlioni the statute is running has a right of possession, and is placed on as favourable a footing as the disseisor under the old law — it is permissihle to make a further use of Asher v. Whitlock, and we may say that it applies the analogy of the old possessory actions to the new and more extended right of possession recognized by Davison v. Gent. It is submitted, then, that since 1833 possession has Possession . T; ■ i-n •,.,.. -1 a source acquired a new signmcance. It is still prima facie evidence of title. of seisin in fee, and, where the evidence is not rebutted, the seisin in fee may be relied on as a title. But this is no longer its only importance. It is itself the source of a right of possession which, while the possession lasts, is protected in trespass, and which, after possession has been lost, is a title against strangers in ejectment. The proce- dure in ejectment has been in modern times changed, and the action itself has been replaced by the action to recover possession of land ; but these changes have not affected its nature, and it is unnecessary further to refer to them. Formerly it was necessary that the plaintiff in ejectment Legal title hould show a legal title, and if, by proof that the legal requSed. Jitle was outstanding, it appeared that the plaiatiff's title was equitable only, he failed. The law was settled on this footing in spite of Lord Mansfield's efforts to secure recognition for equitable owners (Doe v. Wroot, 1804, 6 East, p. 138; Doby. Beade, 1799, 8 T. E. p. 122; Eoscoe's Eeal Actions, II. 490 ; Lewin on Trusts, 9th edit. 761) ; but the severity of the rule was mitigated by allowing a conveyance of the legal estate to be presumed, although twenty years had not elapsed from the time when such con- veyance should have been made by the trustee. {England V. Blade, 1792, 4 T. E. 682.) It is possible, however, 126 POSSESSION OP LAND. that at the present time a cestui que trust who is entitled to possession of land could recover possession on his eqiiitable title alone. (Judicature Act, 1873, s. 25 (11); Walsh V. Lonsdale, 21 Gh. D. 9.) Estoppel. The aboye authorities are concerned with the case of unlawful entry. In the case where the defendant has entered for a limited estate under the plaintifF or his predecessor in title, the plaintiff is assisted iu recovering possession on the termination of the estate by "the doctrine of estoppel. Wliere the limited estate is created by deed, the estoppel arises on the deed, and, since all legal estates, except tenancies not exceeding three years, must now be created by deed, the estoppel is usually of this nature. But in the absence of a deed the estoppel arises by acceptance of the estate. In modern times the doctrine is most frequently applied to the relation of landlord and tenant. The tenant is estopped from disputing his land- lord's title {Boe v. Lady 8mythe, 1815, 4 M. & S. 347), or rather, from denying that his landlord had title at the time of granting the lease, for he may show that it has since terminated. {Alchorne v. Gomtn, 1824, 2 Bing. p. 60 ; Doivne v. Cooper, 1841, 1 Gale & Dav. 573; Pope v. Biggs, 1829, 9 B. & 0. p. 251; Boe v. Barton, 1840, 11 A. & E. 307; 2 Sm. L. C. 9th edit. 913.) Biit the doctrine extends to all cases where posses- sion has been obtained by consent. " The rule as to claiming title, which ajDplies to the case of a tenant, extends also to that of a person coming in by permission, as a mere lodger, or as a servant." (Per Patteson, J., in Boe v. Baijtup), 1835, 3 A. & E. 188.) And the defendant is as much estopped from setting up title in himself as in setting up a jus tcrtii. " When," said Lord Pedesdale, in Saunders v. Lord Annesley (1804, 2 Soh. & Lef. p. 103), "possession is gained under a contract by a THE ACTION OF EJECTMENT. 127 person having a right, he can only have it such as the person has it from whom he obtains the possession ; and is bound to accept the possession according to that right." (Cf. per Lord Wensleydale in A.rchhold y. Scully, 1861, 9 H. L. C. p. 380 ; Att.-Gen. v. Lord Hotliam, 1823, Turn. & Euss. p. 219 ; Beere v. Fleming, 1864, 11 L. T. E. p. 52 ; Lord Courtown v. Ward, 1802, 1 Sch. & Lef. 8.) Under the old law the estoppel did not arise where the defendant at the time of accepting the estate had right of entry [ante, p. 100) ; in other words, the estoppel by mere acce|)tance of the estate was cured by remitter, though remitter was not allowed if the estoppel arose by deed or by matter of record. (Litt. s. 693.) At the present time the doctrine of remitter seems to be obsolete, and probably the estoppel operates in all cases. I28~ POSSESSION OF LAND. CHAPTER VII. RESTRAINT ON EXERCISE OF RIGHT OF ENTRY. Prohibi- A PERSON wliG IS entitled to the possession of land may forcible enter upon it, and take possession for himself, but this ™ ^^' right is subject to the restriction that the entry must not be accompanied by the use of force. The restriction must be considered from two points of view : — the prohibition of forcible entry by the criminal law, and the eiiect of this prohibition in civil actions. 1. The Statutes of Forcible Entry. Statutes of The use of excessive violence in exercising a right of Entry. entry seems to have constituted an offence indictable at common law (Hawk. P. 0. Vol. I. 495 ; The King v. Wilson, 1799, 8 T. E. p. 360) ; but it has been from early times expressly made punishable by the series of statutes known as the Statutes of Forcible Entry. 5 Eio. 2, The first of these, 5 Eic. 2, c. 7, provided that no entry c 7 should be made into lands or tenements, except where entry ■was given by law ; and in that case, not with a strong hand, nor with multitude of people, but only in peaceable and easy manner. (Pollock on Torts, 3rd ed. 336.) Offenders were to be imprisoned, and ransomed at the king's will. 15 Ric. 2, The next statute, 16 Eic. 2, c. 2, empowered the justices c 2 to interfere. Upon complaint of a forcible entry they EESTKAINT ON EXERCISE OF EIGHT OP ENTRY. 129': were to take suffioient power of the county and repair to the place where the force was made ; and if any held the place forcibly after entry made, they were to be taken and put into the next gaol, there to abide, convict by the record of the justices, until they had made fine and ransom to the King. The statute 8 Hen. 6, c. 9, provided that « Hen. 6, the earlier statutes should apply both to forcible entry and to forcible detainer ; and enacted that the justices might cause the land to be re-seised, and the party put out to be put back into possession. In addition he was to have his assize of novel disseisin, or writ of trespass, and if the forcible entry or forcible detainer was found, he was to recover treble damages. It was provided, however, that there was to be no forcible detainer within the statute, where the detainer or his predecessor in title had been in possession for three years; a proviso which was further enforced and explained by 31 Eliz. o. 11. 31 Ellz. u. Thus the statutes recognize two offences, forcible entry poroi^ie and forcible detainer ; and in addition to punishing the entry. offender, they provide for the summary restitution of possession to the person aggrieved. The force which will constitute a forcible entry may take the form of actual violence to the person of the possessor, or it may consist in the use of such threats or display of force as to give just cause to fear bodily hurt. (Hawk. P. 0. 1. 501.) Forcible entry is " entry with a strong hand, with unusual weapons, or with menace of life or limb." (Bac. Abr. 7th ed. III., tit. Forcible Entry, 716.) And, in pleading, the allegation that the entry is mamiforti is said to be necessary to show that the force is unlawful ; vi et armis implying no more than the slight violence which a man may lawfully use. {Earvey v. Bnjdges, 1845, 14 M. & W. 437.) So, too, in the case of entry into a house, the law is broken if violence be done to the building, and it is said to be forcible to break 130 POSSESSION OF LAND. open the house, though not to draw a latch and so to enter. (Bac. Abr. III., tit. Forcible Entry, 717 ; Hawk. P. 0. I., 501.) The entry, moreover, is equally forcible whether there is actual force on entering, or whether, after a stranger has entered upon the land, he turns out the possessor by force or frightens him out by threats. "If one enters peace- ably, and, when he is come in, useth violence, this is a forcible entry." (Yin. Abr. 2nd ed. XIII. 380.) " If a man enters peaceably into a house, but turns the party out of possession by force, or by threats frights him out of possession, this is a forcible entry." (Bac. Abr. III. 716.) Edwick T. The law as thus stated was acted upon by Fry, J., in Edwick V. Haickes (1881, 18 Oh. D. 199). There the_ defendants had taken possession of a public-house under a right of entry. The evidence showed that on the 4th of October, 1880, their foreman went to the house accom- panied by two men, and also by one of the county police,, who went at the request of the defendants, and who warned the plaintiff, the tenant of the house, not to interfere with the defendants' men. The defendants' men entered peaceably, and they took possession of the bar and turned the plaintiff out of the -house, but his wife and family were allowed to remain. The plaintiff returned on the 5th and 6th of October, and was on each occasion put out again by the defendants' men. On the last occasion his wife also was forcibly turned out, being carried out of the house by three of the defendants' men, and there wag medical evidence that she had suffered serious injuries. On this state of facts Fry, J., held that the defendants had been guilty of a forcible entry. After pointing out that the statute of Eichard II. prohibits an entry with a strong hand, and that possession can only be taken in a peaceable and easy manner, he continued : " If the operation of the statute is confined to the mere act RESTRAINT ON EXERCISE OP RIGHT OP ENTRY. 131 of getting over the border, the edge, of the property in question peaceably, the statute is evidently not adequate to meet the evil •which it was intended to repress, viz., the evil of persons who have a right, as well as those who have not a right, causing disturbance, inaugurating civil war, for the purpose of obtaining possession of that which is or which they claim to be their property. Accordingly, it appears to me to be clear law, and I desu'e to restate it, that, if an entry be made peaceably, and if, after entry made, and before actual and complete possession has been obtained, violence be used towards the person who is in possession, that is criminal within the statute of Eichard II." The statutes of Richard II. punish all force, without Person en- regard to the estate of him upon whom the entry is made, must have therein differing from 8 Hen. 6, c. 9, which deals with p^gSn. restitution of possession. At the same time the person entered upon must have some estate, as of freehold or as lessee for years, sufficient to confer exclusive possession ; and there can, therefore, be no forcible entry within the statutes on a bare custodian (Bac. Abr. III., tit. Forcible Entry, 719), or, it has been held, upon a tenant at will, or at sufferance. (The King v. Wently and Walker, 1670, 2 Keble, 495 ; of. The King v. Borny, 1 Salk. 260.) But such tenants have an exclusive possession in respect of which they can maintain trespass, and as to them the rule may be doubted. (Of. Hawk. P. G. I. 503.) Moreover, if a person, having right of entry, enters upon Lows v. land, he will obtain the possession for civil purposes, and " ' will obtain also a possession in respect of which he can bring an indictment under the statute, although the actual possession may still be in dispute. This, as stated above (p. 38), seems to account most satisfactorily for the decision in Lows V. Telfm^d, (1876, 1 App. Gas. 414), where Lord k2 132 POSSESSION OF LAND. Forcible detainer. Selborne, citing Jones v. Chapman (1847, 2 Ex. p. 821), pointed out that, whether Lows had obtained actual pos- session or not, he had, since he entered with title, obtained the possession for civil purposes ; and hence there was a BufSoient foundation for the charge of forcible entry against Westray and Telford. The statute 16 Eic. 2, c. 2, only recognized the ofEence of forcible detainer when it had been preceded by a forcible entry; but 8 Hen. 6, c. 9, made it a distinct ofEence, and under that statute a forcible detainer of land, thoiigh after a peaceable entry, was made criminal. As to what amounts to a forcible detainer, it is said that the same circumstances of violence or terror which will make an entry forcible will make a detainer forcible also. (Hawk. P. 0. I. 502.) The strict words of the statute appear to imply that a detention of land even by the owner, who has entered under his right of entry, may be forcible, but the Courts have shrunk from giving them such an effect. " I cannot think," said Denman, C. J., in The King v. OaMey (1832, 4 B. & Ad. 307), " that the legislature meant that the act of a man in maintaining his own rightful possession with force against a wrong-doer should authorize the justices to turn him out of possession." And so it is said elsewhere : — " If a man be gotten peaceably into his own, it seems he may defend it by force." (Bac. Abr. III. 718.) Consequently it is only a forcible detainer where a person who has entered, whether forcibly or not, without right, or who, having right, has entered forcibly, withholds the possession from the former possessor. Effect of The offence of forcible detainer does not appear at the three years' pos- present time to be of any practical importance, but it may session. -^^ noticed that the old writers were a good deal exercised over the provision of 8 Hen. 6, o. 9, and 31 Eliz. c. 11, allowing a three years' peaceable possession to justify a RESTRAINT ON EXERCISE OP RIGHT OF ENTRY. -133 forcible detainer. For this purpose, it was said, tlie pos- session must have been in respect of a lawful estate, or at least the proviso applied only to a detainer after a peace- able entry. (Hawk. P. 0. 1. 510.) But the statutes seem to save a three years' possession from the penalties attached to forcible detainer in all cases. As against disseisees with right of entry this was no hardship, since by making claim they could at once vest the possession in themselves, and it was considered that there was thereupon a fresh entry and detainer by the disseisor (Hawk. P. C. I. 503) ; and as against strangers, the disseisee's possession was good. " Bare possession is a good title against all persons, except him who hath the right, and cannot be lawfully defeated by any other." (Hawk. P. 0. 1. 510 ; Asher v. Whitlock, 1865, L. E. 1 a B. 1.) The power of the justices to restore possession to the Restitu- person forcibly ejected depends, under 8 Hen. 6, c. 9, on session, the effect of the word " re-seize," and hence the statute was held to apply only to cases where entry had been made on a freeholder. To cure this defect the statute 21 Jao. 1, c. 15, was passed, which gave the justices a similar power of restitution in favour of tenants for years, tenants by copy of court roll, and others. Hence in indictments it became necessary to show the estate of the aggrieved party, that it might be known which statute was to be relied upon {The King v. Arden, 1616, 3 Bulst. 71) ; and it is sometimes said, though not, it would seem, with strict accuracy, that the statutes of Eio. 2, and 8 Hen. 6, c. 9, extend only to freeholds, and 21 Jac. 1, c. 15, to lessees for years, &c. {Rex V. Wannop, 1754, Sayer, 142.) 134 POSSESSION OP LAND. Two ques- tions. Eight of entry is not af- fected. Modem cases. 2. The Effect of the Statutes on the Civil Eight OF Entry. It remains to consider the effect of the prohibition of forcible entry on the right of entry itself, and on the possession whioh is obtained under it. This raises two questions: First, can the person forcibly ejected com- plain in a civil action that the entry vs^as unlawful, and so either recover possession, or obtain damages for the dis- possession ? Secondly, can the person entering maintain that his entry puts him in lawful possession for all civil piu'poses, so as to justify him in treating other persons on the land as trespassers, and in removing themselves and their goods by force ? To the first question the answer is clear. The statutory prohibition of the use of force does not in any way affect the civil right of entry so far as the mere entry and taking possession of the land is concerned. There is not at the present day any action merely possessory in which a person forcibly ejected can recover possession as against the owner, and as the person ejected cannot under such circumstances recover possession, neither can he recover damages for the dispossession. This was recognized even in actions of forcible entry grounded on the statutes, and if in such an action the defendant succeeded in proving title in himself, he was dismissed without any inquiry concerning the force. (Hawk. P. 0. I. 495). " For howsoever," it is said, " he may be punishable at the king's suit, for doing what is prohibited by statute, as a contemner of the laws and dis- turber of the peace, yet he shall not be liable to pay any damages to the plaintiff, whose injustice gave him the provocation in that manner to right himself." Moreover, that the mere civil right of entry is not interfered with by the statutes is recognized in numerous RESTRAINT ON EXERCISE OF RIGHT OP ENTRY. '135 'modern oases. In Taunton v. Costar (1797, 7 T. li. 431) it was held, that a tenant holding over could not treat the entry of his landlord as a trespass. "If, indeed," said Lord Kenyon, 0. J., "the landlord had entered with a strong hand to dispossess the tenant hy force, he might have been indicted for a forcible entry ; but there can be no doubt of his right to enter upon the land at the expira- tion of the term." And in Turner v. Meymott (1823, 1 Bing. 158), where the tenant's term had expired, and in his absence the landlord broke open the door and resumed 'possession, a new trial was granted upon the tenant obtaining a verdict in trespass. " If the landlord," said Dallas, 0. J., " has used force, that is an offence of itself, but an offence against the public for which, if he has done wrong, he may be indicted." Upon the same principle it was held in Burling v. Read (1850, 11 Q. B. 904) that the defendant, with right of entry, might justify entering and pulling down a workshop, although the plaintiff was in it at the time. So, in Pollen v. Brewer (1859, 7 C B. N. S. 371), it was treated as clear that for the mere expulsion no damages could be recovered, and this has been recently laid down both in England and in Ireland. In BeddallM. Maitland (1881, 17 Oh. D. 174), Fry, J., said (p. 188) : " The plaintiff can recover no damages for the entry, because the possession was not legally his, and he can recover none for the force used in the entry, because, though the statute of Eic. 2 creates a crime, it gives no civil remedy." And in Beattie v. Mair (1882, 10 L. E. Ir. 208), Palles, 0. B., said (p. 211) : "I think it clear upon principle and authority that a civil action cannot be maintained against the true owner by one wrongfully in possession, merely for expelling him by force and with a strong hand from his unlawful possession." . But although the forcible exercise of a right of entry Whether possession 136 POSSESSION OF LAND. under does not expose tlie person so entering to liability in a civil entry is action either to restore possession or to pay damages, the for^^ civil Courts have been reluctant to allow that a possession so purposes, gained is for all civil purposes lawful ; and it is, perhaps, the prevalent opinion that it cannot be used to justify in- jury done in the course of the entry either to the persons or to the goods of those who are wrongfully upon the land. In Hillary v. Gay (1833, 6 Car. & P. 284), a landlord turned the tenant's wife into the street and put his furni- ture out of the window ; and Lord Lyndhurst held that he could not justify this under his right of entry. " If," he said in summing up, " the defendant had a right to the possession, he should have obtained the possession by legal means." On the other hand, if the civil right of entry is not affected by the statutory prohibition of forcible entry, it may be argued that the possession gained under it must be for all civil purposes a lawful possession, and this opinion was strongly entertained by some of the judges before whom at different times came the case of Newton V. Harland (1840, 1 Man. & Grr. 644), which is the leading authority on the subject. The plaintiffs, Mr. and Mrs. Newton, sued in trespass, alleging that the defendants, on the 2nd of March, 1837, with force and arms assaulted the plaintiff, Mrs. Newton, and put her out of a dwelling-house into the road. The defendants pleaded first, not guilty; secondly, that the defendant Harland was lawfully possessed of the dwelling- house, that Mrs. Newton was unlawfully in it, and that he put her out with shght force, doing no unnecessary damage. The first trial took place before Parke, B., at the York Assizes, in 1837. Prom the facts which were proved then, and at the subsequent trials, it appeared that Newton hired rooms of Harland for a term of sis months, which expired on the 1st of March, 1837. On the foUow- Newion v. Harland. EESTEAINT ON EXERCISE OF RIGHT OF ENTRY. 137 ing day Harland demanded possession, but Mrs. Newton refused to leave. Thereupon he employed a blacksmith to pick the lock, and, having entered the rooms with four or five persons, compelled Mrs. Newton, her children and servants, to go. Parke, B., holding that Harland had gained a lawful possession, told the jury that the second plea was made out, and a verdict was given for the defen- dants. A new trial was granted on the ground of mis- direction, Tindal, C.J., saying : — " I do not see how the defendants can justify the expulsion of the female plaintiif under a possession obtained by an act which in itself is criminal " ; and Park and Bosanquet, JJ., concurred, Coltman, J., expressing no opinion on this point. The second trial took place at York, before Alderson, B., in 1838, but he adopted the same view of the law as Parke, B., and with the same result. He directed the jury that, where a tenant holds over, the landlord is entitled to turn him out, using no unnecessary violence ; and that the question on the second issue was whether the term had expired and Mrs. Newton had refused to go. In Easter term, 1840, a new trial was again ordered, the point being now more carefully considered by a Court consisting of Tindal, C.J., and Bosanquet, Coltman, and Erskine, JJ. The majority (Coltman, J., f//.s.s.) held that the defendant could not plead that he was " lawfully in possession," if his entry was forcible, and inasmuch as the jury had not yet had the question, whether the entry was forcible, submitted to them, a third trial was necessary. " H," said Tindal, O.J., " the landlord, in making his entry upon the tenant, has been guilty either of a breach of a positive statute, or of an offence against the common law, it appears to me that such violation of the law in making the entry causes the possession thereby obtained to be illegal ; and that the allegation in the plea that one of the 1^8 . POSSESSION OF LAND. defendants was lawfully in possession at the time the assault ■was committed is negatived." So Bosanquet, J. : — " If the act be expressly prohibited by statute, it must, I ap- prehend, be illegal and void." And Erskine, J., whUe admitting that the tenant had no remedy in trespass, held that damages could be given for personal injury. Colt- man, J., on the other hand, maintained that the possession, if lawful at all, was, for the purpose of a civil action, law- ful altogether : — " For the preservation of the peace, the law will punish for the forcible entry ; but the tenant at sufferance, being himself a wrongdoer, ought not to be heard to complain in a civil action for that which is the result of his own misconduct and injustice I am of opinion that, although the defendant, if guilty of a forcible entry, is responsible for it in the way of a criminal prosecution, yet that, as against the plaiatiffs, who are wrongdoers and altogether without title, he has obtained by his entry a lawful possession, and may justify in a civil action the removing them in like manner as in the case of any other trespasser." At the third trial, which took place at York in 1840, before Coltman, J., the jury found that there had been a forcible entry, and the plaintiffs had a verdict for forty shillings. Harvey v It thus appears that in Newton v. Harland a remarkable I'J s^^- (JiiJerence of opinion was revealed as to the effect for civil purposes of a possession forcibly taken under a right of entry. It is agreed that the mere right of entry is not affected by the Statutes of Forcible Entry, and accord- ingly the owner who has thus entered cannot be compelled in a civil action, either to restore possession to the person ejected, or to compensate him in damages for the loss of the possession. The divergence arises when we attempt to make the deduction that the possession thus securely obtained — impregnable against civil remedies — is a posses- RESTRAINT ON EXERCISE OP RIGHT OF ENTRY. 139 sion to be treated in all civil actions as lawful. This view, acted upon by Alderson, B., and Parke, B., at the assizes, and maintained by Ooltman, J., against Tindal, O.J., and Bosanquet and Erskine, JJ., on the second application for a new trial, was strongly re-asserted by the first two judges in Sarvey v. Bnjdges (1845, 14 M. & W. 437). " I have still," said Alderson, B., " the misfortune to retain the opinion that I expressed in Neivton v. Jlarland, although the majority of tbe Court of Common Pleas have held the contrary." And Parke, B., stated the law as follows : — " The next point was that raised in Newton v. Sarland ; and, if it were necessary to decide it, I should have no difficulty in saying that, where a breach of the peace is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the free- holder may be responsible to the pubhc in the shape of an indictment for the forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defen- dant, who was owner, and that he entered upon it accord- ingly, even though in so doing a breach of the peace was committed." This was adopted in Blades v. Siggs (1861, 10 C. B. N. S. 713), and appears to have been approved of by Lord Selborne in Lows v. Telford (1876, 1 App. Cas. p. 426), where he said : — " And in Harvey v. Brydges it is pointed out that, so far as relates to the fact of possession and its legal consequences, it makes no difference whether it has been taken by the legal owner forcibly or not." As to this dictum, however, it is to be noticed that the point decided in Newton v. Sarland was not then under con- sideration, and it was sufficient for Lord Selborne's pur- pose that the owner obtained a possession protected both 140 POSSESSION OF LAND. by civil remedies and the Statutes of Forcible Entry against subsequent aggression, without going further and holding that his possession justified him in becoming an assailant and inflicting injury upon other persons, although, after his entry, they were to be regarded as trespassers. Cases fol- On the other hand the decision of the majority of the lowing Newton v. Court of Oommon Pleas in Neuion v. Harland has been several times followed. In Pollen v. Brewer (1859, 7 0. B. N. S. 371) the plaintiff was in possession of premises, and refused to quit. The defendant, under a right of entry, entered and forcibly expelled him and his family. A distinction was taken between the entry itself and the assault committed in the course of it, and the plaintifE was held to be entitled to damages for the assault, though not for the ejectment. And in the two cases of Beddall v. Maitland (1881, 17 Ch. D. 174) and Eduick v. Hawkes (1881, 18 Ch. D. 199), Fry, J., emphatically expressed the same opinion. In the former case, after saying in the passage quoted above (p. 135) that no damages could be recovered either for the entry or for the force used in the entry, he continued : — " But in respect of independent wrongful acts which are done in the course of or after the forcible entry, a right of action does arise, because the person doing them cannot allege that the acts were lawful, unless justified by a lawful entry, and he cannot plead that he has a lawful possession." Consequently he held that, whUe a person who had been forcibly evicted by the owaer could not recover damages for the forcible entry and eviction, yet he could for injury done to his furniture. So in Edu'ieli v. Hawkes he held that damages could be given for an independent wrong done to the plaintiff's wife in the course of a forcible entry on the plaintiff, though not for the forcible entry itself ; and further that a licence to enter and eject the tenant, and for that purpose to use EESTEAINT ON EXERCISE OF KIGHT OF ENTEY. 141 all necessary force, was void as an authority to commit an offence punishable criminally under the statutes of Eichard II. But the doctrine of these cases, that damages may be J'ones v. given for injury done in the course of an entry under title, " "''' rests altogether on the hypothesis that the entry is in fact forcible. If the owner enters peaceably, and then, in the exercise of his rights as owner, does acts which cause injury to property unlawfully left upon the premises — this injury gives no cause of action. In Jones v. Foley (1891, 1 Q.. B. 730), the plaintiff was tenant of a cottage, and on the expiration of his tenancy wrongfully refused to give up possession to the defendant. The latter, being desirous of rebuilding the cottage, sent workmen to remove the roof. In the course of the removal, which was effected without any personal violence, some tiles and other portions of the roof imavoidably fell on the plaintiff's furniture in the room below, and damaged it. It was held that, since there had been no forcible entry, there was no room for the application of the doctrine recognized in Beddall v. Mait- land. Upon consideration of the whole matter it would seem Eorcible that the view taken by the majority of the Court of owner Common Pleas in Newton v. Harland is correct. It is &^'^<'^"° cause 01 true that the prohibition of forcible entry under the action, statutes does not interfere with the civil right of entry, and, even although this is exercised forcibly, yet in a civil action neither can damages be given nor possession restored. But this is perfectly intelligible. No damages are given because no right of the possessor has been violated. His possession gives him a right as against strangers, but it gives him none against the owner. The law affords no action merely possessory, such as the in- terdict unde vi of the Roman law, and the prohibition of 142 POSSESSION OF LAND. violence by the statutes does not liave the effect of supplying the omission. In the Roman law the prohibition of yiolenoe may have been influential in abolishing the exceptiones. vitiosce possessionis in the unde vi, that is, in taking away right of entry: it does not so operate in English law. The possessor without title who has been forcibly ejected can, if he chooses, go to the justices for restitution under the statute ; but the civil law, finding the owner actually in possession, leaves him there in spite of his forcible entry, and does not, by removing him, drive him to his action of ejectment. To do so would simply prolong the dispute. But pos- But while the civil law does not, merely in furtherance der forcible of the pohcy of the Criminal law, introduce a new action ius^oa-"° ^°^ recovering possession against the true owner, there tion for in- appears to be no good reason why it should refuse alto- wrong, gether to recognize the statutory prohibition of violence. It is perhaps simpler to hold, with the dissentient judges in Newton v. Harland, that, since the right of entry is not affected by the statutes, a possession taken under it is lawful for aU purposes ; at the same time, so soon as the distinction is pointed out between the entry itself and independent wrongs committed in the course of the entry, it commends itself as reasonable. The wrongful possessor has no remedy in respect of the exercise of the right of entry, because he has no civil right of possession — at least, as against the owner — and the statutes do not confer such right u^Don him. But when he complains of the assault on himself, or the damage to his goods, he complains of a violation of his admitted rights, and all that the law does is to prevent his assailant from pleading lawful pos- session by way of justification. The civil law does not carry its deference to the criminal law so far as to institute in favour of a possessor forcibly evicted by the owner a RESTEAINT ON EXERCISE OF EIGHT OF ENTEY. H3- new form of action ; but it is not inconsistent with this that the civil law should so far defer to and assist the criminal law as to prevent the owner from setting up in defence a possession gained in defiance of the criminal law. The distinction is clear and useful, and appears to he perfectly justifiable, notwithstanding that it dates no further back than Neivton v. Harhnd, and even there, perhaps, was not very clearly perceived. (Of. Pollock on Torts, 3rd ed. p. 338.) 144' POSSESSION OF LAND. CHAPTEE YIII. REASONS FOE THE PEOTECTION OF POSSESSION. Eeaaons The foregoing account of the remedies for the protection teotion of of possession — for its maintenance and recovery — may be possession, concluded with some observations on the grounds upon v?hich this protection has been justified. The various theories of the civilians on the subject have been briefly sketched by Mr. Justice Holmes (Common Law, p. 206), and they are more systematically described by Ihering (Grrund des Besitzes-Schutzes, pp. 3 — 45). It vrill be sufl5.cient to refer to three — the "will" theory, and the theories advanced by Savigny and by Ihering himself. The According to the first, possession is to be regarded as tiieorj. the embodiment of the will of the possessor, and in the interest of the freedom of the will, or, as it is also put, to secure equality, the will of the individual must be protected until overruled by the wiR of the community regidarly asserted through a court of law. The most obvious defect of the theory, considered as based on the Eoman law, is that it is opposed to the practical workiag of that system. That a particular person is in possession — that he has willed to possess — is no guarantee that his possession will be protected. He may be a bailee or lessee, and then protection is altogether denied him ; or he may have acquired possession " vi clam precario," and then he is not, in earlier times at least, protected against the entry of the person he has wronged. EEASONS FOE THE PROTECTION OP POSSESSION. 145 Savigny assigns more practical reasons. The interdict Sa-rigny's imde m is given to redress the violence involved in the forcible dispossession (Poss. p. 6) ; the interdict de precario to redress the abuse by the tenant of the confidence of his landlord. Wholly to efface the injury, there must be a restoration of the party wronged to his original position (ibid., p. 28), and hence the creation of a Jus possessionis. But this is a consequence merely. The Jus possessionis does not exist as an independent right, so as to obtain legal recognition for its own sake {ibid., p. 23). It is not, therefore, in Savigny's opinion, a right which can descend to an heir, and in virtue of which he can recover the possession held by his ancestor. This appears from his treatment of the case of abatement. Ihering regards the protection of possession as designed ihering's solely in the interest of owners. Possession is apparent ^°^' ownership, and in the great majority of cases the possessor is the owner. To allow the possessor, then, to succeed on his mere possession is, in general, to give the owner a remedy in which he is saved from the burden of proving title ; and if occasionally the possessor is not the owner, and prevails against the owner, this is a disadvantage which is said to be outweighed by the advantages of the system. To support the theory, Ihering strove to find in the Eoman law an extension of possessory remedies, suit- able for all the requirements of owners. The burden of proof of title is as severe to the heir who seeks to recover land of which his ancestor died possessed, as to an owner who has been himself in possession. Hence, as already stated, Ihering finds a possessory remedy for the case of abatement, and he argues that in later times such remedies were used for other cases of loss of possession than forcible dispossession. (Grrund des Besitzes-Schutzes, pp. 102 — 112; L. Q. E., III. 46 ; centra, Savigny, Poss. p. 360.) L. L 146 POSSESSION OF LAND. It has been doubted, however, whether, in the majority of cases of disturbance of possession, the possessor is . in fact the owner — in other words, whether the title of disseisors is generally worse than that of disseisees. (Holmes, Common Law, p. 208.) And whatever may be the truth on this point (of. Mr. Bond's article in L. Q,. E., YI. 263), it does not seem that the interest of owners really requires a system of possessory remedies. It is sufficient if pro- cedure is simplified and possession made prima facie evidence of title. The history of the English law, in which possessory remedies were ia fact extended to meet all the requirements of ownership, shows that possessory procedure may be an important means to this simplification, but there is, so far as owners are concerned, no reason for perpetuating such procedure, and leaving them liable to forfeit possession to a stranger. Possession There is another view of the protection of possession title. which is more in accordance with the principles of English law. Possession is the source of a right which may be described as a qualified right of property. In the absence of the true owner, the possessor, at any rate if he is seised, ranks as owner. He has, therefore, as against strangers, the proprietary remedies of an owner. The original reason for this is to be sought in the peculiarities of feudal tenure. The tenant who was for the time being dischargiag the burdens of the estate was properly regarded as owner de facto, and his own rights, and the rights of those claiming under him, were regulated upon this basis. And the con- tinuance of such a system is easily justified upon grounds of convenience. Even where the possession has had no meritorious commencement, it is better to protect the pos- sessor than to leave him open to the attack of strangers. The law indeed does no more than he will probably do for himself with danger to the public peace. (Of. Holmes, REASONS FOE THE PEOTECTION OF POSSESSION. 147 Common Law, p. 213.) While if possession has been taken in good faith, hut under a title which turns out to he defective, the possessor clearly deserves full protection against strangers. The above considerations make it an easy matter to assign Position of to possessory real actions their proper place in the history prooedurJ of English law. In dealing with these actions the ques- f^ English tion is not why possession is protected at all, but why, when in the form of seisin in fee it is already protected against strangers, special remedies for its protection are introduced. The answer is that they were a means of sim- plifying procedure. In a writ of right the claimant relied on his title as derived from the seisin in fee under which he claimed. But this was a matter of mere right, to be decided after infinite delay by battle or the great assize. In a possessory action he alleged a wrong to his actual seisin or to his possessory right, and this with less delay could be referred to a jury. " The battle," says Chief Baron Gilbert (Tenures, p. 47), " was in the writ of right where the property was doubtful, but in matters of plain and obvious right, as were those of possession, they did not appeal to Providence." The simplification of procedure was carried still further by the action of ejectment, which, as already shown, ranked as a possessory action. So far as the freehold title was concerned, the action depended on right of entry, and this meant that there had been a wrong to the JUS possessionis, in respect of which a possessory real action might ordinarily have been brought. But down to 1833 possessory actions had another result Abolition than the simplification of procedure. They created a distinc- actions, tion between the right of property and the right of posses- sion, and made it possible for the latter to prevail over the former. Why was the question of the real title — of mere right — so long excluded ? In other words, why was the l2 148 POSSESSION OF LAND, true owner's right of entry liable to be tolled ? For the two questions are identical. If there is no right of- pos- session complete against the owner, the real title must prevail, whether the action is in form proprietary or possessory. Originally the question of mere right may have been excluded in imitation of the Roman law. The possessory action was on the possession merely, and did not admit matters of title. But when such actions came to be, not on the possession merely, but on the right of possession, which was analogous to the right of property, and when matters affecting the title under the right of possession — such as feofEments and descents — were freely pleaded, this reason did not hold. Consequently, after the right of entry had been gradually extended, and when the extension was checked by the final adoption of the doctrine of descent cast, no one thought of justifying this state of the law on the ground of any difficulty in discovering in a possessory action on which side the real title lay. The matter was looked at from another point of view, and the heir of the disseisor was regarded as having a possession which actually deserved protection even against the true owner. He had had the freehold oast upon him by act of law, and he was protected in the possession of the freehold until the true owner obtained a judgment against him. (Co. Litt. 237 b; Blackst. Bk. III. Ch. 10 ; Gilbert's Tenures, 21.) But this and the other reasons assigned were, as Prof. Maitland has pointed out (L. Q. E. Yol. IV. 298), mere fictions. The doctrine of descent cast simply marked a stage in the development of the law, and the natural course of the development was resumed and completed in 1833, when the doctrine was abolished. Thereupon it would have become possible for the ovmer to raise, even in a possessory action, any ques- tion of title ; and proprietary and possessory actions would REASONS FOR THE PROTECTION OP POSSESSION. 149 have differed only in tlie manner in wMcli tlie cause of action was stated and in the mode of trial. But, at the same time, hoth forms of action were replaced hy the one action of ejectment. Under the Eoman law special posses- sory actions could not have been abolished without at the same time leaving the possessor who was without title open to the attack of strangers. The interdicts not only gave the owner a ready means of recovering possession, but also protected in certain events the untitled possessor. In the English law the untitled possessor (at any rate, if he claims to be freeholder) is not dependent upon possessory actions. Save as against the true owner, he ranks as owner ; and as against the true owner, too, he is protected by the Statutes of Forcible Entry. In regard to the maintenance of possession, the protec- Modem tion afforded by English law was formerly, and perhaps is p^session. still, wider than in regard to the recovery of possession, and any possessor may bring trespass. This has been said to be an extension of the protection which the law throws around the person (per Denman, C.J., in Rogers v. Spence, 1844, 13 M. & W. 571)— a theory similar to that of Savigny. But probably there is no sound reason for the distinction which formerly prevailed between trespass and ejectment, and at the present time mere possession seems to be the foundation of a,;MS possessionis, which is pro- tected both in trespass and in ejectment. This is simply an extension to possession generally of the protection which was formerly accorded to seisin only. [Ante, p. 123.) The whole of what has been said as to the protection of Summary: possession may be summarized as follows : In the Roman law. law possession is clearly distinguished from ownership. Ordinarily a claimant to land must rely on his title as owner, and if he fails to prove this he fails in his claim, whoever his opponent may be. But an easier remedy is 150 POSSESSION OF LAND, given by the interdicts for the two specific cases of dis- possession and withholding by a tenant at will. These interdicts avail for the owner who has been in possession ; they also avail for the mere possessor; and, since it is essential to the interdicts that the question of ownership should be excluded, the possessor may succeed against the owner. The result of giving any protection at all to possession is to create what may be called a right of pos- session. But the protection being thus limited, the right of possession does not rank as a right of property. English In English law we must first take possession in the form of seisin. There is no marked distinction between owner- ship and seisin. Seisin is the source of a right of property which is always valid as against persons with an inferior right. It may be defeasible because someone else has a better right, but as against strangers at any rate it is good. "We start then with a right of property based on seisin, which varies only according as it is absolute or defeasible. In consequence, however, of the peculiarities of the vmt of right, this right of property was difficult to try. The difficulty was removed by the artifice of treating seisin as the som-ce of a right of possession merely. The wrongs to the possession — more strictly the wrongs to the right of possession — were treated as questions of fact, and as such they admitted of easy trial. The list of wrongs is given by the names of the assizes and the writs of entry. It is not restricted to one or two specific infringements. It in- cludes nearly all the cases for which an owner would want redress. But at the same time that possessory actions were introduced, the question of title was to a certain extent excluded — at first rigorously, then only in certain events. The right of possession might be separated from the right of property, and the true owner who had entered after he had lost his right of possession would find himself REASONS FOE THE PROTECTION OF POSSESSION. 151 defeated in a possessory action. While, however, this may have contributed in the first instance to the simplicity and speed of possessory procedure, the English law did not favour the protection of the possessor against the true owner. It more and more diminished this protection, and more and more admitted matters of title in possessory actions, until at length it was only the freeholder taking by descent who was protected against the true owner, and it was only, therefore, a descent cast which checked the pleaders on either side in carrying back their tale of wrongs to the respective rights of possession. The action of eject- ment carried still further the work of simplifying procedure, but the effect of a descent cast in separating the right of possession from the right of property continued till 1833. "When, in that year, the effect of descent cast was abolished, the true principle governing title to land was established. Seisin was stni, as under the writ of right, the source of a title good against strangers, but it was no longer protected against the true owner. Ownership and possession alike, therefore, obtained the proper measure of protection in the same action. The only further development (if such de- velopment has really taken place) is the substitution of possession for seisin as the source of the right of possession, or, in other words, as the source of a right of property secure against all the world except the true owner. 152 POSSESSION OF LAND. CHAPTER IX. THE OLD STATUTES OF LIMITATIONS. The poKcy Theee appears to be no difference of opinion as to the wisdom of assigning a definite time within which claims to land must be asserted, and of depriving of title owners who do not come forward till after that time has elapsed. For this policy various reasons have been suggested. It checks litigation — interest rei puhlicce lit sit finis litium; it prevents improper claims from being made after the mate- rials for defeating them have been lost ; and it cures defects in titles acquired lawfully and in good faith. " The public," said Plumer, M.E., in Cholmondeley v. Clinton (1820, 2 Jac. & W. at p. 140), "have a great in- terest in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than that an opening should be given to interminable liti- gation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own, and on the faith of which the plans THE OLD STATUTES OF LIMITATIONS. 153 in life, habits, and expenses of himself and his family may have been unalterably formed and established — mgilantihus et non dormientibus lex succurrit." (Of. per Lord St. Leonards, in Trustees of Dundee Harlour v. Dougall, 1852, 1 Macq. H. L. p. 321 ; per Page-Wood, Y.-C, in Manly V. Beivicke, 1857, 3 K. & J. p. 352 ; per Lord Eedeadale, in Cholmondeley v. Clinton, 1821, 4 Bligh, at pp. 75, 117 ; First Report of Heal Property Commissioners, p. 39.) There are various modes in which long possession operates Efleeot of to create a title in the possessor. The usucapion or pre- on^titlef'^ soription of the Roman law is positive, and creates a new title immediately the prescribed period has elapsed. The old Statutes of Limitation of the English law were purely negative. They barred the remedy of the true owner, but they did not touch his title. The possessor, therefore, acquired a title indirectly only, and this might be defeated if the true owner in any way lawfully came to the posses- sion again. The present statutes, too, are negative, but (like fines under the old law) they at once bar the remedy and extinguish the right, and practically they create a perfect title in the possessor. They are commonly said, indeed, to transfer the estate. (See per Lord St. Leonards, in Trustees of Dundee Harbour v. Dougall, 1852, 1 Macq. H. L. p. 321 ; cf. post, p. 273.) In the Roman law possession was no foundation for XTmcapim. usucapion unless it had been acquired by a lawful title (Justus titulus) and in good faith. Herein it differs from the English law, in which a title by possession depends not at all on the character of the possession or the mode in which it has been acquired. ( Vane v. Vane, 1873, L. R. 8 Ch. p. 397.) In general a lawful title included any mode of acquisition — by sale or gift, for instance — by which the new possessor would, but for some special im- pediment, have become the owner. Bona fides implied 154 POSSESSION OF LAND. further a well-founded belief on the part of the new possessor that he had in fact become the owner, or, as Pothier says, a '^justa opinio qucesiti dominii" (Pand., trans, by Br^ard-XeuviUe, xvii. p. 180). And this, in turn, depended on the following three points : — A belief on the part of the new possessor (1) that the thing was the property of the transferor ; (2) that the transferor had power to transfer the property ; and (3) that he, the trans- feree, had power to acquire it. Not till all these elements were present, as well as the Justus titulus, was there a pos- session capable of ripening into ownership. When, how- ever, the possession had commenced in this manner, and had continued for the prescribed time without interruption, it at length conferred the ownership on the possessor. The prescribed time for usucapion in the case of land sub- ject to the jus civile was two years. In the provinces the same principle was introduced in the form of possessio longi temporis, the period being ten years between persons domi- ciled in the same province, twenty years when they were domiciled in different provinces. Under Justinian, pos- sessio longi temporis supplanted usucapion, and prevailed throughout the empire generally. There were elaborate rules governing the interruption of possession {usurpatio), so as to check the lapse of time, and regulating the adding together of different possessions (accessio), so as to vest the title in the last possessor. Statutes of In Bnghsh law the effect of time has been regulated by tioM. ' the successive Statutes of Limitations. Originally, accord- ing to Bracton (Yol. I. 410 ; f. 51 b), the times of limita- tion were in the discretion of the judges, and when subsequently they were settled by authority this was done in an arbitrary and haphazard manner. Instead of assign- ing one uniform period antecedent to the bringing of all actions, or a separate period for each class of actions, fixed THE OLD STATUTES OP LIMITATIONS. 155 dates were chosen beyond which the allegations in the pleadings might not go. Thus, before the Statute of Statute of Merton {a.v. 1236), the remotest time at which the seisin of an ancestor could be alleged in a writ of right was the beginning of the reign of Henry I. (a.d. 1100). The Statute of Merton, c. 8 (Inst. II. 94), shifted this for- ward fifty-four years, to the beginning of the reign of Henry II. The date of limitation in the assize of mort d'ancestor had been the first coronation of Henry II. (20 Oct. 1154). This was changed to the last return of King John from Ireland to England (a.d. 1211), and the same limitation was introduced for writs of entry. In the time of Henry II. the limitation for an assize of novel disseisin had been the last voyage of the king to Normandy (a.d. 1184). This was altered to the first voyage of Henry III. to Grascony (a.d. 1221). Thus, after the passing of the Statute of Merton, the time of limitation in a writ of right was eighty-two years ; in mort d'ancestor and writs of entry twenty-five years ; and in novel dis- seisin fifteen years. As time went on all these periods increased, and in 1275 fresh limitations were introduced by the Statute of "Westminster I., c. 39. In a writ of right the seisin of the ancestor could not be Statute of put further back than the time of Richard I., that is, the miuster I. begianing of his reign, a.d. 1189 (Inst. I. 238). The limitation in mort d'ancestor and writs of entry was the coro- nation of Henry III., that is, 1217, the date of his first coronation. But in novel disseisin no change was made, and the disseisin might still have taken place any time since the first voyage of Henry III. to Grascony (1221). Thus after the passing of this statute the time of limita- tion in a writ of right was eighty-six years ; in mort d'ancestor and writs of entry, fifty-eight years ; and in novel disseisin, fifty-four years. All these periods seem 156 POSSESSION OF LAND. 32 Hen. i c. 2. Alterna- tive limi- tation by the opera- tion of fines. to have been sufficiently long even when first introduced, but, as before, they increased from year to year, and this was allowed to go on for the next 266 years, until by 32 Hen. 8, c. 2, a more rational mode of limitation was in- troduced, and a definite period was assigned as the time within which each class of action might be brought. For this purpose possessory actions were divided accord- ing as they were brought upon the seisin of an ancestor or upon the claimant's own seisin. The former included mort d'ancestor ; the latter, novel disseisin. A writ of entry might fall within either class. In writs of right the demandant could not rely upon a seisin more than sixty years old at the date of the writ ; in a possessory action brought on the seisin of an ancestor, the period of limitation was fifty years ; and in an action on the demandant's own seisin, thirty years. Formedon in reverter and in remainder were regarded as of the nature of writs of right, but as in possessory actions ancestral the time allowed was fifty years. Possibly the periods which prevailed before this statute would not have been left so long unaltered, but that a different and much speedier system of limitation was in force, a system under which, in its later form, five years might at the same time bar the remedy and extinguish the right. This was the system of fines. Originally a fine appears to have been the compromise of an actual suit, and, being equivalent to a judgment of the Court, it had the same effect as a final judgment in a writ of right ; that is, it operated immediately as a perfect bar to all claims. (Cruise on Fines, I., p. 159.) According to Bracton this was the case in his time. (VI. 438 ; f . 435 b.) But by the reign of Edward I. a change had taken place, and claims might be brought against a judgment in a writ of right, and against a fine, within a year and a day. THE OLD STATUTES OF LIMITATIONS. 157 The Courts, however, gave to a fine in a fictitious action the same operation as in a real action, and practically it was used as a conveyance under which, after a short time, the title of the purchaser became safe against every kind of claim. (Cruise on Fines, I., p. 161.) All this was at common law, but since the effect of 18 Ed. i, fines, so prejudicial to the titles of true owners, was * ' ' grounded on their supposed publicity, it was necessary to secure that such publicity should in fact exist. Hence the statute 18 Ed. 1, stat. 4, de modo levandi fines, was passed, requiring that they should be publicly read, and otherwise regulating the mode of levying them. There was, however, a restriction on the power of avoiding fines, which worked great injustice, and at length led to their temporary destruction as a mode of acquiring title. They might be avoided by entry or claim made within year and day, and, when levied by a tenant for life in possession, such entry or claim made by the next remainderman avoided the fine both as to himself and as to any other subsequent remainderman ; but if the next remainderman failed to avoid the fine, no one else could take this step, and by his negligence all subsequent remainders were barred. (Cruise, I., 167.) Hence, by 34 Ed. 3, c. 16, Statute of the Statute of Non-claim, fines were deprived of their claim, effect as regards all persons other than the parties to them, it being provided "that the plea of non-claim of fines which from thenceforth should be levied should not be taken nor holden for any bar in time to come." So the law as to fines gontinued for over a hundred Statute of years, but at the end of that time it was again found necessary to devise a means of quieting possession. Accord- ingly 1 Eic. 3, c. 7, re-introduced fines as a mode of limitation, the period of limitation being now five years, and proclamations being made essential. In the case of 158 POSSESSION OP LAND. future rights, the five years ran from the time when the right fell into possession, and in case of disability, from the removal of the disability. These provisions were re-enacted by 4 Hen. 7, c. 24, and it was under this latter statute that fines in modern times took effect. (3 Rep. 86 a, note (x).) A question arose whether a fine levied by tenant in tail in possession would be effectual to bar the issue in tail, and the statute 32 Hen. 8, c. 36, s. 1, was passed to settle the question against the issue. Conusor After the statute 4 Hen. 7, c. 24, a fine without pro- an estate clamations was still deprived of effect as regards persons hold.^^" who were not parties to the fine by the Statute of Non- claim, but if levied with proclamations it operated after five years as a bar to all present interests of persons not under disability, and in due time as a bar to all interests. But this must be taken subject to the qualification that the person who levied the fine must have an estate of freehold in the land (1 Salk. 340, note (6)), though it was not necessary that he should be entitled to such estate. It was enough that he was a freeholder by wrong, that is, that he was in the actual seisin of the fee, whether he had got it by disseisin, or abatement, or in any other way. (Cruise on Fines, p. 114; Challis on Eeal Property, 2nd ed., p. 360.) The estate of the party entitled was thus turned before the fine to a right of entry, or possibly a right of action. (Co. Litt. 332 b, note (1).) A fine was still avoided by entry or continual claim (Litt. s. 417 ; Co. Litt. 252 b, note(l)), but 4 Anne, c. 16, s. 16, nullified the entry or claim unless an action was com- menced within a year, and prosecuted with effect. Statute of Soon after the periods of the limitation of actions had James. l,Qen remodelled by 32 Hen. 8, c. 2, the action of eject- ment began to take the place of the old real actions in all cases where a right of entry existed ; but where a discon- THE OLD STATUTES OF LIMITATIONS. 159 tinuauce had been effected by a feoffment by a tenant in tail, the issue in tail had no right of entry, and were driven to their formedon. The next statute, 21 Jao. 1, c. 16, dealt with these actions only, and placed a limitation of twenty years on each. In formedon, the twenty years were reckoned " next after the title and cause of action first descended or fallen." Actions of ejectment were limited by placing a limit on the exercise of the right of entry upon which they depended, sect. 1 of the Act pro- viding as follows : — " No person or persons shall at any time hereafter make any entry into any lands, tenements, or hereditaments, but within twenty years next after his or their right or title which shall hereafter first descend or accrue to the same ; and in default thereof, such persons so not entering and their heirs shall be utterly excluded and disabled from such entry after to be made." By sect. 2, an extension of time was allowed in the case of persons •under disability, and the provision that time should run from the accrual of the right of entry, saved future estates until they fell into possession. [I)oe v. Scott, 1825, 4 B. & C. 706.) After the passing of the Statute of James, therefore, a Diatino- right to recover land might be barred either under the between Statutes of Limitations (32 Hen. 8, c. 2, and 21 Jac. 1, f^^^^ul c. 16), or by the operation of the Statute of Fines (4 Hen. Statute of 7, 0. 24). But while the Statute of Fines at the same tions. time barred the remedy and extinguished the right, the Statutes of Limitations barred the remedy only. Thus, it was held that where the issue in tail was barred of his formedon, he was not thereby prevented from pursuing a right of entry which afterwards accrued to him. {Hunt v. Burn, 1702, 2 Salk. 422.) The Statute of James ran from the time when the " right Operation or title " accrued, and, apparently, these terms mean right of james. 160 POSSESSION OF LAND, or title of entry. Hence it was said that the statute did not run, in the case of freeholds, until the estate had been turned to a right of entry by disseisin or otherwise ; in the case of leaseholds, until the lessee had been ousted of his term. {Reading v. Roysfon, 1702, 2 Salk. 423 ; Prest. Abst. II. 357.) "Eight," says Lord Coke, "signifieth properly, and especially in writs and pleadings, when an estate is turned to a right, as by discontinuance, disseisin, &c." (Co. Litt. 346 a.) This was where there was a right of action, whether accompanied or not by a right of entry. If there was a right of entry only, the appro- priate word was " title." " ' Title ' properly (as some say) is, when a man hath a lawful cause of entry into lands whereof another is seised, for the which he can have no action, as title of condition, title of mortmain, &c." (Co. Litt. 345 b.) Acoording to another mode of stating the operation of the statute, it ran so soon as there was an adverse possession, and this was defined to mean a posses- sion inconsistent with the title of the true owner [Chol- tnondeley v. Clinton, 1820, 2 Jac. & W. 164 ; Eoscoe's Heal Actions, II. 502 ; 2 Sm. L. C. 9th ed. 732), or a possession taken with intention to claim title. (Angell on Limita- tions, 5th ed. 387.) To reconoUe the two statements, it is clear that adverse possession must have been commenced by an interference with the previous estate in one of the modes referred to above ; and since — to take the case of disseisin — so soon as the seisin was out of the disseisee, it was in the disseissor (Prest. Abst. II. 284), it was said that " by adverse possession must be understood, so far as respects estates of freehold, a seisin under a wrongful estate." {Ibid. 358.) But for some time previous to the Real Property Limitation Act, 1833, there was a tendency to treat the fact of adverse possession as not necessarily identical with the fact of disseisin. THE OLD STATUTES OF LIMITATIONS. 161 For many piirposes it was immaterial wkioh mode of ex- Rules pre- pression was adopted. There were numerous rules and pre- disseisin sumptions in favour of the true owner which at the same time °Lt«L1^^^ made the actual possession consistent with his title, and prevented a disseisin. Where, for example, the possessor was actually entitled to the land, though for an interest less than that which he claimed, his possession was referred to his lawful title. {Doe y. Brightwen, 1809, 10 East, 583.) The possession of the younger brother was the possession of the heir (Litt. s. 396 ; Gilbert's Tenures, 28) ; but in Doe Y. Lawley (1834, 13 Q. B. 954), the Queen's Bench refused to extend this rule so as to attribute the possession of a sister to her brother. The possession of one co- parcener, joint tenant, or tenant in common, was the posses- sion of all, unless an intention to claim the whole was expressed on entering. And the possession was not adverse when it was taken with the permission of the owner. {Doe v. Wilkinson, 1824, 3 B. & C. 413; Doe V. Clark, 1828, 8 B. & 0. 717; Doe v. Gnihh, 1830, 10 B. & 0. 816 ; Doe v. TJwmpson, 1836, 5 A. & E. 532.) Nor was it adverse in the numerous cases where a tenancy could be assumed to exist between the occupier and the owner. In this way the possession of the mortgagor was made consistent with the title of the mortgagee {Smartle v. Williams, 1795, 1 Salk. 245 ; Leman v. Newn- liam, Yl^ , 1 Yes. sen. 51) ; that of the cestui que trust with the continuance of seisin in the trustee. {Keene v. Dear- don, 1807, 8 East, 248 ; Smith v. King, 1812, 16 East, 283.) The fiction of a tenancy was resorted to for the purpose Tenant at „ .,. -...p., . 1 sufferance of avoidmg a disseisin oi the owner m cases where a ^o dis- possession, lawful in its commencement, became unlawful ^'^^°^- by being held after the possessor's interest had expired. The person so holding over, whether after the expiration L. M 162 POSSESSION OF LAND. of a term of years or after the cessation of a freehold estate, was said to be tenant under the freeholder, although his tenancy was only a tenancy at sufferance. "A tenant at sufferance," says Coke, " is he that at the first came in by lawful demise, and, after his estate ended, oontinueth in possession, and wrongfully holdeth over." (Co. Litt. 67 b.) Hence, such a person was no disseisor so as to have an estate of freehold upon which to levy a fine. In Boe t. Perkins (1814, 3 M. & S. 271), A. was tenant for Hfe, remainder to E. P. in fee. A. leased to B. for her own (A.'s) life, and died in 1799. B., who had gone into possession, held possession till his death in 1806. There- upon his son entered, and in 1817 levied a fine with pro- clamations. It was held that the fine was iaeffectual to bar the heirs of E. P. " To constitute a title by disseisin," said Lord Ellenborough, "there must be a wrongful entry; but here there has been no wrongful entry, but only a wrongful continuance in possession." It has been suggested (Watkins' Conveyancing, 7th ed. p. 25), that although B.'s holding over may have been no disseisin, it was different with the possession of the son. A tenancy at sufferance confers no descendible interest ; hence the entry of the son was wrongful and his possession adverse. But this criticism touches only the particular case, not the principle illustrated by the decision. There is said to have been an exception in the case of estates created by act of law, and a person in possession in respect of such an estate became, on holding over, a disseisor. (Co. Litt. 67 b.) Doubt The doctrine that holding over created a tenancy at tenant at Sufferance, and was, therefore, no disseisin, produced was'^not"^ some difficulty when it came to be applied to disseisin an adverse fgj. j-}jq purpose of the Statute of Limitations ; and had possessor. -^ -^ . the question continued to be one of practical importance, it would, perhaps, have led to a distinction between posses- THE OLD STATUTES OF LIMITATIONS. 163 sion by disseisin and adverse possession. The doctrine that the statute only ran from disseisin was strictly applied in Doe v. Sull (1822, 2 Dow. & Ey. 38). Henry Souter died in 1790 seised of land which he had devised to his wife for life. In 1794 the widow and John Souter, a son of the testator, who claimed to be his heir-at-law, con- veyed to Hull in fee. Hull entered, and died in 1814, having devised to the defendants. The widow apparently had died about 1800. Henry Souter's heir-at-law was really Whioher Souter, who, by a will made in 1810, de- vised his real estate to trustees, and died shortly afterwards. Upon ejectment brought by the trustees, it was contended that Hull's possession was adverse ; but the King's Bench held that, at any rate, there had been no disseisir, and therefore the statute had not run. " There is," said Abbott, C. J., " no ground for saying that the adverse possession of Mr. Hull has operated as a disseisin of Whioher Souter. Mr. Hull did not take possession wrong- fully ; he only wrongfully continued in possession. He came in under right and title which remained good during the life estate of Henry Souter's widow, but ceased at her death, and from that period he continued in possession wrongfully. But what is the effect of that ? No more than that he is tenant by sufferance to Whicher Souter, who permitted him for a period to remain in possession." A different view prevailed in Doe v. Gregory (1834, 2 A. Doe v. Gtcoovu & E. 14), where a husband, who had entered in right of his wife, held over for more than twenty years after her death. A distinction was now taken between a freehold by disseisin to support a fine and adverse possession under the statute. After referring to the argument based on Doe v. Perkins (1814, 3 M. & S. 271), that the husband was tenant at suffer- ance, and had no freehold by disseisin, Denman, 0. J., said : — ".We are of opinion that, though this may be so for the m2 164'- POSSESSION OP LAND. purpose" of avoiding a fine, it cannot prevent the defen- dant's possession from being wrongful from the very hour when his interest expired by his wife's death. It is clear that he might have been immediately turned out by eject- ment. "We think, therefore, that his continuing the same possession for twenty years entitles him to the protection of the Statute of Limitations, and that this action has been brought too late." It has been suggested (2 Sm. L. 0. 9th ed. 735) that, since the rightful estate of the husband had been conferred on him by act of law, the decision can be supported on the dis- tinction noticed above, and that the husband was in fact a disseisor. But the Court made no reference to this point, and the case distinguished clearly between disseisin and ad- verse possession under the statute. A similar view as to the effect of holding over had been expressed by Lord Mans- field in Doe V. Prosser (1774, Cowp. p. 218) :— "Length of possession during a particular estate, as a term of one thousand years, or under a lease for lives, as long as the lives are in being, gives no title ; but if tenant imr autre vie holds over for twenty years after the death of cestui que rie, such holding over will in ejectment be a complete bar to the remainderman or reversioner, because it was adverse to his title." The opposition between Doe v. Mull and Doe V. Gregory was noticed in Ui/re v. Walsh (1860, 10 Ir. C. L. E. 346). Adverse "Where land was in the possession of a tenant, not only possession ^^^ ^-^^ possession consistent with the title of the landlord, cu'^ted'b ^^^ ^^® tenant could not by himself alter its character, tenant. The duty which he owed the landlord of preserving his title prevented any acts of his from having the effect of acts of adverse possession (per Lord Eldon, C, in Cholmon- deley v. Clinton, 1821, 4 Bligh, p. 96). By disclaiming the landlord's title he would forfeit the term {Doe v. THE OLD STATUTES OF LIMITATIONS. 165 Pasquali, 1794, Peake, N. P. 0. 196; Doe v. Stanion, 1836, 1 M. & W. 695) ; but the landlord was not bound to take advantage of tbe forfeiture, and might enter upon the natural expiration of the term {Boe \. Danrcrs, 1806, 7 East, p. 321). So where a tenant for years made a feoff- ment for the purpose of levying a fine. Although this was a disseisin and a forfeiture of the term, the reversioner might treat the term as subsisting, and enter within five years of its determination (9 Hep. 105 b, note (a) ; contra, where lessee was ousted by a disseisor, and the disseisor levied a fine, post, p. 167). And when the tenant for years became tenant at sufferance by holding over, it appears that he was still unable to disseise his landlord and gain an adverse possession, or at any rate such dis- seisin would not be presumed from mere length of posses- sion. In an American case mentioned in Angell on Limitations (5th ed. p. 445) a tenant at will remained in possession of the land for fifty-seven years after the death of the landlord. Instead of presuming a direct disseisin of the heir, the jury were allowed to presume a restoration of the land to the heir, and then an actual ouster of the heir. In cases of possession by a mortgagor and cestui que Possession trust the rule was less strict. Since a mortgagor was gagorand tenant at will to the mortgagee he could not disseise him 'l"^*'" *"" [Chohnondeley v. Clinton, 1817, 2 Mer. p. 360) ; but it came to be settled law that if he ceased to hold on behalf of the mortgagee, and commenced to hold on his own account, and against the will of the mortgagee, the jury might find that his possession was in fact adverse [Hall v. Doe, 1822, 5 B. & Aid. p. 690 ; Doe v. Williams, 1836, 5 A. & B. 291). And so a cestui que trust, although, like a mort- gagor, he held as tenant at will, might renounce the title of his trustee and hold adversely to him {E. of Portsmouth V. Lord Effingham, 1750, 1 Yes. sen. at p. 435 ; E. of Pom- 16& POSSESSION OF LAND. Possession by co- owner. Interfer- ence by stranger during term ; wrongful receipt of rent. fret V. Lord Windsor, 1752, 2 Yes. sen. 472 ; Faussett v. Carpenter, 183], 2 Dow. & 0. 243; Chohnondeley t. Clinton, 1817, 2 Mer. 360). ■A similar relaxation was made in the case of a joint tenant whose original entry was on behalf of all the joint tenants, and by actual ouster of the rest he might gain an adverse possession. " If," said Lord Mansfield in Doe V. Prosser (1774, Cowp. p. 218), "upon demand by the co-tenant of his moiety, the other denies to pay and denies his title, saying he claims the whole and will not pay, and continues in possession, such possession is adverse and ouster enough." And in that case actual ouster was presumed from the interrupted receipt of rents and profits by one co-tenant without accounting for a period of nearly forty years. But no relaxation was made in the case of possession by a younger brother (Eoscoe's Eeal Actions, II. 502), though after his elder brother had taken possession the younger brother could then disseise him (Co. Litt. 242 a). While land is in the possession of a tenant for years a stranger may interfere either by claiming and obtaining payment of rent from the tenant or by putting the tenant out of possession. In the first case, as already pointed out (supra, p. 51), there was no disseisin, save at the election of the lessor ; and there seems to have been no right of entry in the lessor so as to make time run under 21 Jac. 1, c. 16. He might treat the non-payment of rent to him- self as a forfeiture of the term, but he was not bound to do so, and otherwise he had no right of entry during the continuance of the term {Boe v. Danvers, 1806, 7 East, 299, p. 321 ; though see Cholmondeleij v. Clinton, 1821, 4 Bligh, 108 ; 1823, 1 Turn. & E. 119). Where, however, the tenant, to the knowledge of the landlord, disavowed tenure under him and attorned to a stranger, the landlord, especially in the case of a long lease, might properly be THE OLD STATUTES OF LIMITATIONS. 16? required to assert Ms title ; and in Hovenden v. Lord Annesley (1806, 2 Sch. & Lef. p. 625), Lord Eedesdale seems to have thought that the statute would run against him (of. Angell on Limitations, 5th ed., p. 446), an opinion which was approved in Conry t. Ccmlfield (1813, 2 Ball & B. p. 273). In the second case, where a stranger ousted the lessee. Ouster of this was, unless he claimed the term merely, a disseisin of ^^^^^^• the lessor ; and if the disseisor levied a fine, the lessor, as well as the lessee, was barred by non-claim for five years, and the lessor had not five years after the expiration of the term {Margaret Podger's case, 9 Eep. 105 b, 106 a). The freeholder, it was said, might at once bring his assise, or other real action, to recover the land ; and might enter in the name of the tenant to restore at the same time the possession of the latter and his own seisin. But this was only an entry to establish his claim ; he could not enter to take the profits (Co. Litt. 250 b) ; and the right of entry being thus limited, it was probably not such a right as would make the Statute of James run against the lessor {Doe V. Danvers, 1806, 7 East, pp. 311, 312, per Law- rence, J. ; Roscoe's Eeal Actions, II. 506). Adverse Possession under Equitable Title. The foregoing statements deal only with the operation Adverse of the statute on the legal estate in the land. Either there ^f e^qy-t"'^ must have been a disseisin of the freeholder or ouster of ^^^"^ , interest. a termor, or an adverse possession must have been gained, and from such disseisin or ouster, or from such adverse possession, whichever expression is more correct, time began to run. But the separation of estates into legal and equitable led to a state of things to which the statute was not directly applicable. As between the legal and the 168 POSSESSION OF LAND. equitable owner there was no great difficulty. Their relations had to be adjudicated upon solely in equity, and courts of equity could adopt the rule of the statute or not, as they chose. Except in cases of express trust, they did adopt it, and, in so doing, were said to act upon the analogy of the statute {CJiolmondeley v. Clinton, 1820, 2 Jac. & "W., p. 152), or even to act in obedience to the statute (per Lord Eedesdale in Hovenden v. Annesley, 1806, 2 Soh. & Lef. 631, and in Cholmondeky v. Clinton, 1821, 4 Bligh, p. 119). Thus it was an established rule that a claim in equity was barred in twenty years exactly as though it were a legal claim, and there was no extension beyond this time for cases where a writ of right would have lain at law. (4 Bligh, p. 118.) But as between two persons, each claiming the equitable estate, while acknowledging that the legal estate was out- standing in a trustee or mortgagee, the effect of the lapse of time was a matter of great controversy. Suppose A. to be legal mortgagee, B. the true owner of the equity of redemp- tion, C. a claimant to the equity of redemption who has been for more than twenty years in possession, and who has regularly paid the interest on the mortgage. If B. seeks to redeem, A. cannot simply plead the statute. He does not deny the equity of redemption. He only wants to be sure that he re-conveys to the right person. But the right to a re-conveyance is a positive right enforced in equity, and if it is to be given to C, this means, not merely that B. is barred, but that his equity has been transferred to 0. This was the difficulty that pressed on Grant, M.E.., in the celebrated case of Cholmondeky v. Clinton (1817, 2 Mer. 171). Cholmon- Samuel Rolle (for pedigree see Appendix I.), under Clinton: his marriage settlement dated in October, 1704, was en- of^oa^!"* titled in fee to lands in Devon and Cornwall, subject to a THE OLD STATUTES OF LIMITATIONS. 169 term of 200 years for raising 20,000^. as a portion for his daughter Margaret. By his will, dated in October, 1717, he devised the lands to his wife during widowhood, remainder, in the events that happened, to his daughter Margaret for life, remainder to her first and other sons in tail male, with remainders over. Samuel EoUe died in 1719, leaving his daughter Margaret his only child and heir-at-law, who upon his death entered into possession of the estates devised to her for life. In March, 1724, she married Eobert, Lord Walpole (afterwards Earl of Orford), and in July, 1724, the portion of 20,000/. was raised by mortgage of the lands, the remainder of the term of 200 years being assigned to the mortgagee. Of this marriage there was issue only one son, George, Earl of Orford, who upon the death of his mother Margaret in January, 1781, entered into possession as tenant in tail male under the will of Samuel EoUe, his grandfather. In the same year he suffered a recovery to the use of himself in fee, and shortly afterwards, in August, 1781, by deed reciting that he wished the estates to remain in the family and blood of Samuel EoUe, in consideration of the natural love and affection which he bore to his relations, the heirs of Samuel EoUe, and to the intent that the estates might remain in the family and blood of his late mother on the side of her father, Samuel EoUe, he settled the estates to the use of himself for life, remainder to the heirs of his body, for default of issue as he should appoint, for default of appoint- ment to the use of the right heirs of Samuel Eolle. In 1785 George, Earl of Orford, converted the mortgage term of 200 years into a mortgage in fee, and in 1791 he died without issue, and without having made any appointment, leaving Horace, Earl of Orford, his uncle and heir-at-law. It was contended by the plaintiffs in the suit that the 170 POSSESSION OF LAND. ultimate limitation in tlie deed of 1781 to the right heirS of Samuel Eolle vested the fee in Earl Greorge, that he died seised in fee of the equity of redemption, and that this descended, therefore, to Earl Horace. But in 1791 Earl Horace had heen advised that the estates went to the heir of Earl George ex parte materna, who was Lord Clinton, the father of the defendant. Hence he allowed Lord Clinton to enter, and Lord Clinton, in 1792, settled the estates upon trusts which gave an estate tail to his eldest son. Subsequently a doubt arose whether the deed of 1785, converting the mortgage term into a mortgage in fee, had not revoked the uses of the settlement of 1781, and thereby defeated the limitation to the right heirs of Samuel Eolle. But Earl Horace, being advised that the doubt was unfounded, and that, the object of the deed being merely to transfer an incumbrance, the uses were only revoked ^^ro tanto, in 1794, at the request of Lord Clinton, executed a deed by which he confirmed the lands to the trustees of Lord Clinton's settlement upon the trusts of that settlement in the same manner as if the deed of 1785 had not been made. Lord CKnton the elder died in 1798, leaving the defendant. Lord Clinton, his eldest son and heir-at-law, who thereupon entered into possession, claiming to be entitled as tenant in tail under the settle- ment of 1792, subject to the mortgage. In 1796 Earl Horace died, having devised aU his residuary real estate to the plaintiff Mrs. Damer, and leaving the Marquis Cholmondeley, the other plaintiff, his heir-at-law. The plaintiffs, being in doubt as to the effect of the devise, entered into an agreement to divide the mortgaged estates, and then jointly filed a bill against Lord Clinton and the mortgagee under the deed of 1785, praying for redemption and re-conveyance, and that Lord Clinton might be decreed to deliver up possession. Their claim THE OLD STATUTES OF LIMITATIONS. 171 was founded on the contention already noticed, that the limitation in the deed of 1781 to the right heirs of Samuel EoUe vested the equity of redemption in Earl George in fee, and they got rid of the confirming deed of 1794 by the allegation that this only removed the doubt occasioned by the mortgage deed of 1785, and did not afiect any rights Earl Horace might have on the true construction of the deed of 1781. The defendant, on the other hand, contended that, under that deed, the limitation to the right heirs of Samuel Eolle carried the estates to such person as was heir-at-law of Samuel Eolle upon the death of Earl George without issue ; that the confirming deed of 1794 debarred Earl Horace and persons claiming under him from making any claim ; and he pleaded the statute. The case came in the first instance before Sir William Grant, M.E., and he was of opinion, on the first point, that Lord Clinton took no interest under the settlement of 1781, and on the second, that the confirming deed of 1794 operated only to remove the specific objection to Lord Clinton's title, and did not prevent Earl Horace and those representing him from setting up a fresh objection founded on the constru.ction of the deed of 1781. This made it necessary, therefore, to determine whether, notwithstanding his want of title, Lord Clinton could shelter himself under his long possession. The case was regarded as one of the greatest importance Axgu- (see per Lord Eldon, C, 4 Bligh, p. 38), and the argu- before ments and judgments are reported at unusual length. ^^^' Had there been no mortgage it was clear that the plaintifFs, claiming through Earl Horace, would have been barred. His title accrued on the death of Earl George in 1791, and the bill was not filed till 1812. More than twenty years, therefore, had elapsed. Did, then, the fact that the legal estate was outstanding make any difference ? For the plaintiffs it was argued that Lord Clinton was at law 172 POSSESSION OF LAND. tenant at will to the mortgagee, and consequently there had been no disseisin of the legal owner. This heing so, the legal owner held on behalf of the person really entitled. In other words, the possession of the mortgagee (by his tenant) kept alive the equity of redemption in Earl Horace. Time had not run between Lord Clinton and the mortgagee so as to debar the latter from recovering possession ; neither had it run between the mortgagee and Earl Horace, so as to bar the earl's right to redeem. In general, it was admitted, the mortgagee can by twenty years' possession bar the mortgagor, but that was where there had been no recognition of the mortgage. Here the mortgage had been kept alive by the payment of interest, and such payment, it was said, kept it alive for the benefit of the true owner. Thus Earl Horace was entitled to redeem the mortgagee, and the mortgagee was entitled to recover against Lord Clinton. For Lord Clinton it was argued that the suit was not simply a suit for redemption. Substantially it was a suit by persons claiming under Earl Horace to recover possession of the land, and since in equity the equity of redemption was treated as the owner- ship of the land, and the mortgagor, if in possession, had an equitable seisin [Cashorne v. Scarfe, 1737, 1 Atk. 603) ; the suit ought to be treated as though the legal ownership was in question. In other words, the claim of the plaintiffs was a direct claim to possession as against Lord Clinton, and not merely an indirect claim through the mortgagee. Judg- Sir William Grant acceded to the argument for the GraDt, plaintiffs. He was of opinion that for the statute to run ■ ■ there must be a disseisin of the legal owner. Had an equitable disseisin been possible, this might have made time run against the equitable owner, but he denied that this was possible. " Though there may be what is termed a seisin of an equitable estate, there can be no disseisin of THE OLD STATUTES OP LIMITATIONS. 1'^ it ; first, because the disseisin must be of the entire estate, and not of a limited and partial interest in it — the equit- able ownership cannot possibly be the subject of disseisin ; and secondly, because a tortious act can never be the foun- dation of an equitable title." For the first point he relied upon a dictum of Lord Hardwicke in Hopkins v. Hopkins (1738, 1 Atk. 581), that, though a trustee might be dis- seised, and so the cestui que trust might be affected, yet on the trust itself no estate could be gained by disseisin ; and as to the second, he insisted that the statute could not transfer an equity. " An equitable title may undoubtedly be barred by length of time, but it cannot be shifted or transferred. What was once my equity may, by my laches, be wholly extinguished ; but it cannot, without my act, become the equity of another person." (2 Mer. p. 368.) And as Lord Clinton's possession was not a disseisin of Earl Horace, so as to make time run against him directly, neither did it affect the indirect right through the mortgagee. The mortgagee could recover at any time against Lord Clinton, his tenant at will, and the land when recovered would be held for the person rightfully entitled. Hence Grant, M.E., considered that the length of Lord Clinton's posses- sion was no bar to the plaintiff's claim. Inasmuch, how- ever, as Lord Clinton's counsel desired that the first point, the construction of the deed of 1781, should be sent to a court of law, no decree was pronounced, and, so far, the result was simply to intimate Sir W. Grant's opinion. In the King's Bench the case was twice argued on the Argu- first point (2 B. & Aid. 625; 2 Jao. & W., 2), and a "ef^'' majority of the Court held that the words " the right heirs ^'S"'"'' of Samuel Eolle" denoted Earl George, and that conse- quently Lord Clinton, the father of the defendant, took no estate under the deed of 1781. Upon this finding the cause came on for further hearing before Sir Thomas 174 POSSESSION OF LAND. Plumer, who had succeeded Sir William Grant as Master of the Rolls, and it fell to him to deliver judgment in the cause. With the decision of the King's Bench he dis- agreed, and he would have sent the first point hack for a second consideration, but as he differed from Sir William Grant on the effect of the defendant's possession, and as his judgment was aflSrmed by the House of Lords, this became unnecessary. The arguments for the defendant at the second hearing were directed to combating Sir Wil- liam Grant's positions, that there could be no equitable disseisin, and that the trustee, so long as his estate was not interfered with, held for the original cestui que trust or equitable owner. As to the former point it was urged that Sir William G-rant had misunderstood the idea intended to be conveyed by the term " equitable disseisin." If the actual occupation of the land or receipt of rents and profits under a mortgagee gave equitable seisin, then the usurpa- tion of this position by a stranger, to continue the analogy, must constitute an equitable disseisin, or, as Butler, in his argument, put it (2 Jac. & W. p. 52), a g'tMSj-disseisin. In fact, however, so it was urged, the statute ran, not upon a disseisin only, but whenever there was an adverse posses- sion, and Lord Clinton's possession, though not adverse to the mortgagee, was adverse to Earl Horace ; and allowing that the mortgagee, while the mortgage was kept alive, held for the rightful owner, yet this left untouched the question who was the rightful owner, and it was contended that the effect of long possession had been to transfer the ownership to Lord Clinton. Judgment These arguments prevailed with Sir Thomas Plumer. jljj,'^ ' He adopted the view that a court of equity ought not to regard the legal relationship of trustee and cestui que trust ■ — ought not, that is, to reason on the assumption that the cestui que trust was tenant at will to the trustee. The THE OLD STATUTES OF LIMITATIONS. 175 equitable estate, as Lord Mansfield said in Burgess v. WJieate (1759, 1 Eden, p. 224), is, in a court of equity, treated as the land, and the rules of law are by analogy applied to it. Extending this analogy to the Statute of Limitations, it was clear that a stranger who usurped the equitable estate — who became de facto equitable owner — could exclude the title of the true owner ; in other words, putting the legal estate aside, the suit was by the true owner, who had been more than twenty years out of possession, against the actual possessor, and upon the analogy of the statute it was barred. Here the judgment might have stopped ; but in deference to his predecessor. Sir Thomas Plumer investigated the grounds of the opinion he had expressed, and for this purpose he dealt first with the case of equitable estates generally, and next with the particular case of an equity of redemption. As to equitable estates generally, there were the two Effect of points that, since the legal estate was in the trustee, they emiitable could not be the subiect of disseisin, and that a tortious act estates generally. could not in equity confer a title. As to the first, the Master of the Eolls, adopting the argument of the defen- dant's counsel, held that a technical disseisin was not necessary for the operation of the statute ; it was sufficient if there had been a possession de facto adverse to the claimant ; and as to the second, he held that the possessor gained a title at law, not by reason of his tortious posses- sion, but because his opponent's title was barred by the statute. Hence, when this bar applied in equity, the same result followed, and the equitable title was necessarily transferred. " The question respects the plaintiff's right to the remedy, not the defendant's title to the estate. A tortious act can never be the foundation of a legal, any more than of an equitable, title. It is no more favom-ed in a court of law than a court of equity, considered 176 POS>SESSION OF LAKD. nakedly by itseli ; but the statutable bar arises from other principles. ... To advert to the merits is to shift the question from the real subject of inquiry. The case never arrives at that point ; it is stopped in limine, equally in the courts of equity as of law " (2 Jac. & W. p. 155). Hence, although the legal estate was outstanding, the de facto adverse possession of the defendant was sufEcient to make time run against the claimant. The contention that a trustee, while his estate existed, necessarily held for the actual cestui que trust, was refuted, it was pointed out, by the settled law as to outstanding terms. Although such a term was properly held for the first equitable owner, yet a person with a puisne equitable title, by getting it in, might gain priority. " The trust of the legal estate does not govern, but follows the equitable title. The latter, in the changes which it undergoes by the act of the party, or by operation of law, attracts to, and draws after it, the trust of the legal estate" {ihid. p. 160). Consequently, where the equitable owner had lost his estate by lapse of time, the equitable title was transferred to the de facto equitable owner, and for him the legal estate was held. In the result, after reviewing the cases relied upon by Sir W. Grant, Sir Thomas Plumer (2 Jac. & W. p. 175) con- ceived it to be established, both on principle and authority, that the non-claim of the rightful owner of an equitable estate for a period of twenty years (supposing the claim must have been made within that period, if it was a legal estate) would constitute a bar to equitable relief, by analogy to the statute, if, during all that period, possession had been held under a claim unequivocally adverse, and without any recognition of the title of the rightful owner ; and that this would not be prevented by the existence of the legal estate unbarred in a trustee, if nothing was done to admit this to be held for the rightful owner ; but, on THE OLD STATUTES OF LIMITATIONS. 1-77 the contrary, it was uniformly treated as belonging to the claimant in possession as the sole and exclusive cestui que trust, So far where the legal estate existed unbarred in a Eflectof person sustaining the character of a trustee. In the case eqaity^of of a mortgage the result was still clearer. It had been f? feo ® --§=8 'o'g M ^ „r°- .f^ Soti-s ^-8 g -SOg (D^f- r^ g2 — °.-s 11 CO i^ OS t>s ^1 -p5 Tref Tre: .r-l '0 ■5 -B ^1 1 ^ rt > R eo" 'S ^ 13 -*j ■^ _. CD h| _g ^•^ .9 ^0- — s§ •X! g Im i-:i ^ a 309 APPENDIX 11. STATUTES. \_The figures in the margin refer to the pages in the text.'] Eeal Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27). An Act for the Limitation of Actions and Suits relating to Real Proj)ei-ti/, mid for simjylifying the Remedies for trying the Rights thereto. [24tli July, 1833.] Be it enacted by the King's most excellent Majesty, by and with, the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, That the words and ex- Meaning of pressions hereinafter mentioned, which in their ordinary *^® words in signification have a more confined or a different meaning, '^ " ' shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, be . 185, 230 interpreted as follows ; (that is to say,) the word "land " shall " Land." extend to manors, messuages, and all other corporeal here- ditaments whatsoever, and also to tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole), and also to any share, estate, or interest in them or any of them, whether the same shall be a freehold or chattel interest, and whether freehold or copyhold, or held according to any p. 188 other tenure ; and the word "rent" shall extend to all heriots, "Rent.'' and to all services and suits for which a distress may be made, and to all annuities and periodical sums of money charged upon or payable out of any land (except moduses or composi- tions belonging to a spiritual or eleemosynary corporation p. 183 sole) ; and the person through whom another person is said Person to claim shall mean any person by, through, or under, or by through the act of whom the person so claiming became entitled to the daimg. estate or interest claimed, as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or 310 APPENDIX II. 'Person.' Number and gender. When the right shall be deemed to have accrued : in the case of an estate in possession ; on dispos- session ; on abatement or death ; on alienation ; in case of future estate ; general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otlierwise, and also any person who was entitled to an estate or interest to which the person so claiming, or some person through whom he claims, became entitled as lord by escheat; and the word "person" shall extend to a body politic, corporate, or collegiate, and to a class of creditors or other persons as well as an individual ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. 2. [Repealed and replaced by R. P. L. Act, 1874, s. l.J 3. And be it further enacted, that in the construction of this Act the right to make an entry or distress or bring an action to recover any land or rent shall be deemed to have first accrued at such time as hereinafter is mentioned ; (that is to say,) when the person claiming such land or rent, or some ps. 193-210 person through whom he claims, shall, in respect of the estate or interest claimed, have been in possession or in receipt of the profits of such land, or in receipt of such rent, and shall while entitled thereto have been dispossessed, or have dis- continued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received ; and when the person claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death ; and p- 210 when the person claiming such land or rent shall claim in respect of an estate or interest in possession granted, appointed, or otherwise assured by any instrument (other than a will) to him, or some person through whom he claims, by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument ; and when the estate or interest claimed shall have been an p. 211 estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the .210 STATUTES. 311 possession, or receipt of tlie profits of sucK land or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at ■which such estate or interest became an estate or interest in p. 212 possession ; and when the person claiming such land or rent, in case of or the person through whom he claims, shall have become ^°ea^'^"'? °^ entitled by reason of any forfeiture or breach of condition, condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken. p. 212 4, Provided always, that when any right to make an entry Wliere ad- or distress or to brine: an action to recover any land or rent, ™°'^p °*. by reason of any forfeiture or breach of condition, shall have not taken ty first accrued in respect of any estate or interest in reversion 'remainder- or remainder, and the land or rent shall not have been J""*"' ^'^ ^^'^^ recovered by virtue of such right, the right to make an entry ^ght when or distress or bring an action to recover such land or rent tis estate shall be deemed to have first accrued in respect of such estate °°^^^ ™to or interest at the time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened. 5. \_Repealed and replaced with additions by R. P. L. Act, 1874, s. 2.] 6. And be it further enacted, that for the purposes of this An adminis- Act an administrator claiming the estate or interest of the trator to claun deceased person of whose chattels he shall be appointed taiuedthe' administrator shall be deemed to claim as if there had been estate without no interval of time between the death of such deceased person interval after and the grant of the letters of administration. deceased. 7. And be it further enacted, that when any person shall be -^^ ^j^g ^^^^ ^j in possession or in receipt of the profits of any land, or in a tenant at receipt of any rent, as tenant at Avill, the right of the person 'T^^/J^® "^'^^ entitled subject thereto, or of the person through whom he eieemedto claims, to make an entry or distress or bring an action to have accrued recover such land or rent, shall be deemed to have first ^'^ ^^^ ^" by ■way of replication, state such acknowledgment, and tliat such action was brought within the time aforesaid, in answer to a plea of this statute. 1 Vict. c. 28. An Act to amend an Act of the Third and Fourth Years of his late Majesty, for the Limitation of Actions and Suits relating to Real Property, and for simplifying the Remedies for trying the Rights thereto. [3rd July, 1837.] Wheeeas doubts have been entertained as to the effect of a certain act of parliament made in the third and fourth years of his late Majesty King William the Fourth, intituled "An 3 & 4 will. 4, Act for the Limitation of Actions and Suits relating to Real c. 27. Property, and for simplifying the Eemedies for trying the Eights thereto," so far as the same relates to mortgages ; and it is expedient that such doubts should be removed : Be it declared and enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, PS. 225, and by the authority of the same, that it shall and may be Mortgagees 228, 253 lawful for any person entitled to or claiming under any »* land, being mortgage of land, being land within the definition contained ^^^ definition in the first section of the said Act, to make an entry or bring in 3 & 4 Will. 4, an action at law or suit in equity to recover such land at any 9- 57, s. 1, may time within twenty'^' years next after the last payment of any toT, Esq., Bar- rister-at-Law, and P. E. Vizaed, of the Summons and Order De- partment, Royal Courts of Justice. Royal 12mo. 1886. 15s. CHANCERY, and Vide "Equity." Daniell's Chancery Practicei — The Practice of Ihe Chancery Di-pision I of the High Court of Justice and on appeal therefrom. Sixth Edit. ',. By L. EiELB, E. C. Dtoot, and T. Ribton, assisted by W. H. Upjohn, Barristers-at-Law. 2 vols, in 3 parts. Demy 8to. 1882-84. 6/. 6s. Daniell's Forms and Precedents of Proceedings in the Chancery Division of the High Court of Justice and on Appeal there- from, Fourth Edition. With Summaries of the Rules of the Supreme Court, Practical Notes and References to the Sixth Edition of "Daniell's Chancery Practice." By Chaeleb Buenet, B.A. Oxon., a ChiefClerkoftheHon. Mr. Justice Chitty. Royal 8vo. 1885. 2?. 10s. CHARITABLE TRUSTS,— Mitcheson's Charitable Trusts.— The Jurisdiction of the Charity Commission. By Richaed Edmund Mit- OHEBON, Esq., Barrister-at-Law. Demy 8to. 1887. 18s. CHARTER PARTIES.— Carver.— FJ(?« "Carriers." Leggett's Treatise on the Law of Charter Parties. — EyETrOENB Leggett, Solicitor and Notary Public. Demy 8to. 1894. 25s. 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ELECTIONS.— Day's Election Cases In 1892 and 1893.- Beinga CoUeotion of the Points of Law and Practice arising out of the Parliamentary Election Petitions in those Years, together with Reports of the Judgments. By S. H. Day, Esq., Barrister-at- Law, Editor of " Rogers on Elections." Royal 12mo. 1893. Is.Qd. Hedderwick's Parliamentary Election Manual ! A Practical Handbook on the Law and Conduct of Parliamentary Elections in Great Britain and Ireland, designed for the Instruction and Guidance of Candidates, Election Agents, Sub- Agents, Polling and Countmg Agents, Canvassers, Volunteer Assistants, and Members oi Political Clubs and Associations. By T. C. H. Heddeewiok, E,sq., Barrister-at-Law. Demy 12mo. 1892. 7s. Gd. " Clear and well arranged." — Law Quarterly Review. %* All Standard Law Works are kept in Stock, in law calf and other lindings. 119 & 120, CHANCERY LANE, LO^^DON•, W.C. 13 ELECTION S— continued. Rogers on Elections. — In two parts. Parti. EEGiSTEATiONjiiicludiDgthePraoticeiBEegistration Apr eii'.s ; Parliamentary, Municipal, and Local Government ; with Appendicea of Statutes, Orders in Council, and Forms. Fifteenth Edition. With Addenda of Statutes to 1S94. By Maiteice Powell, Esq., Barrister- at-Law. Royal 12mQ. \l. is, " The practitioner will find ■within these covers everything which he can be expected to know, well arranged and carefully stated." — Law Times. Part II. Elections and Petitions. Parliamentary, Municipal, and Local Government, with Appendix of Statutes and Forms. Sixteenth Edition. By Samuel H. Day, Esq., Barrister-at-Law. Hoyal 12mo. 1892. ll.u. "The leading book on the difficult subjects of elections and election peti- tions." — Law Times. " A very satisfactory treatise on election law . . . .''—Solicitors? Journal. ELECTRIC LIGHTING.— Bazalgette and Humphreys. — F«« " Local and Municipal Government." 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