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1. HAVING treated of estates with their qualities and incidents, both as to corporeal and incorporeal hereditaments, it now becomes proper, in pursuing the objects of this treatise, to consider the subject of the titles by which these estates are acquired and held, with a view, in the end, to speak of the modes of transmitting such estates by law from one person to another. It would obviously be of little importance, beyond embodying certain speculative and abstract notions in respect to the forms which property may assume, to define and illustrate the nature and qualities of estates, if law did not go further, and determine by what rule the ownership of such property, or what is commonly called the title, may be acquired, held, or parted with, by individuals. It is to this part of the general subject that the attention of the reader
is now to be directed. It is somewhat difficult to define, in brief terms, precisely what is meant by title. But it [*399] may, perhaps, be sufficiently accurate to adopt the
words of Lord Coke, who defines it as "justa causa possidendi quod nostrum est, and signifieth the means whereby a man cometh to land. Et dicitur titulus a tuendo, because by it he holdeth and defendeth the land."1 Mr. Burton says: "Every title must rest ultimately upon mere possession." Lord Kaimes, while treating of the history of property, says: "It is taught by all writers that occupation is an essential solemnity in the original establishment of land property." "But so soon as property came to be considered as a right, independent of possession, it was natural to relax from the solemnities formerly requisite to transfer land property." 2 And, after all the speculations in which these writers have indulged upon the origin of individual property in any portion of what must once have been a common heritage, it seems, upon their hypothesis, to resolve itself back to possession as its element, but to have derived from an enjoyment, sufficiently continued, an abstract notion of ownership, to which the word property is applied, which becomes susceptible of being transmitted to others, by being accompanied by a symbolic, rather than an actual, formal transfer of possession.* "Property" is defined by Taylor as "an exclusive right. That is said to be really and emphatically mine when I have a right and power or faculty of denying others the use and fruit of it. Dominium is the attribute of the proprietor, and proprietas of the thing so
NOTE. - Mr. Maine, in his learned and ingenious essay upon "Ancient Law," combats the notion of Blackstone and other writers upon the subject, that property in a thing must have been originally derived from occupancy. "I venture," says he, "to state my opinion, that the popular impression in reference to the part played by occupancy in the first stages of civilization directly reverses the truth." "It is only when the rights of property have gained a sanc tion from long practical inviolability, and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted,” p. 256. The whole discussion upon the subject, of which the above is but a single thought, will repay the reader who may study the eighth chapter of his work with attention.
1 Co. Lit. 345 b.
2 Burt. Real Prop. § 418; Kaimes, Law Tracts, 98.
appropriated." Title to property created merely by the act of reducing it to possession necessarily implies that this reduction to possession should be effected by an act which is not of a wrongful nature. This was applied to the killing of game by a trespasser upon another's land. The game thus killed was the property of the land-owner ratione soli as soon as killed, and killing it by the trespasser gave him no right of property in it.2
2. Blackstone divides title to lands, considered in its progressive development, into several stages; namely, naked possession, * right of possession, right of prop- [*400] erty without possession, and right of property united with the right of possession. This idea of Judge Blackstone, which has been adopted by Mr. Cruise and other writers, is illustrated by an act of disseisin, followed by possession by the disseisor. If a disseisor enters upon the land of another, and evicts or turns the true owner out of possession thereof, although in one sense, as between him and the true owner, he has no right or title whatever to the land, yet, as to all the world but him, the possession so gained gives him complete dominion over and right to the land, and constitutes, in the eye of the law, a prima facie title thereto. In the mean time, however, the one who has been wrongfully evicted has a right to the possession which the disseisor has usurped and retains, so that here is a naked possession in one, and a right to the immediate possession in another. In every State, where the common law prevails, possession of lands, for a period of time sufficiently long, is held to divest the owner thereof of his right to regain his possession by his own act, without the aid of legal process. If, therefore, in the case supposed, this possession shall have been continued by the disseisor for the requisite length of time, nothing will remain in the original owner but a right of property, while the possession, and right of possession, will have become united in the disseisor. It only remains, then, for the right of property to become united with
1 Civil Law, 476.
2 Blades v. Higgs, 11 H. L. Cas. 621; Rigg v. Lonsdale, 1 H. & N. 937, ante, vol. 1, p. *4.
2 Bl. Com. 195-199.
the possession, and right of possession, to perfect the disseisor's title. And here again, for the sake of quieting titles, there is, in every State, a period beyond which no man may enforce his naked right of property, after he shall have lost his right of possession; and if, in the case supposed, he suffers the disseisor to retain the possession beyond this prescribed period of time, no one can call in question the right of property as well as of possession of the latter, and he thereby becomes clothed with a complete title to the land; or, as Lord Coke
says, it was anciently called jus duplicatum, droit [*401] droit.1 * Judge Walker, in his introduction to the
American law, disposes of this question in these words: "Such refinements serve to perplex rather than inform the mind. The truth is, title means the same thing as ownership. A man may be in possession of a thing which he does not own, and he may own a thing of which he is not in possession." "It would seem, therefore, that the perfection of title consists in the union of possession with the right of possession; for when these meet in the same person, he cannot be rightfully dispossessed. In other words, he is the lawful owner of the property; and this is the whole of the matter." 2
3. In one thing all writers agree, and that is in considering that there are two modes only, regarded as classes, of acquiring a title to land; namely, descent and purchase; purchase including every mode of acquisition known to the law, except that by which an heir, on the death of an ancestor, becomes substituted in his place as owner by the act of the law.3
4. Some writers make a distinction, in respect to estates acquired by purchase, between titles created by act of the law and those by act of the parties, estates by escheat being an example of the first class. Others still incline to regard estates in dower and by curtesy as properly coming within the doctrine of descent.4
1 2 Bl. Com. 195-199; Co. Lit, 266 a; 8 Cruise, Dig. 312-315; 4 Kent, Com. 873; Güterbock, Bracton by Coxe, 100; Reeves' Hist. 4th ed. 234.
2 Walk. Am. Law, 317.
32 Bl. Com. 241; James v. Morey, 2 Cow. 290; Co. Lit. 18 b.
4 3 Cruise, Dig. 317; 2 Flint, Real Prop. 446; Co. Lit. 18 b, note 106; 4 Kent, Com. 373, note.