THE CONVEYANCE OF LANDS BY ONE WHOSE LANDS ARE IN THE ADVERSE POSSESSION OF ANOTHER.

THERE a person, whose land is in the adverse possession of

WHERE a person, whose

one claiming a freehold, attempts to convey the land without first terminating the adverse holding, there is much diversity of authority as to the result. A statement of the various rules and an historical review of the reasons for them is here attempted.

English Law Prior to the Pretended Title Act of 1540. The basic idea of the old system of land laws was seisin,1 at least after the word seisin ceased to cover all kinds of possession,2 and became only the possession of one who, by right or by wrong, had a freehold estate in the land. We must, therefore, at the outset get a clear idea of seisin and also of disseisin and the other forms of adverse possession known to the old law.

Seisin was a feudal word. He who had seisin by virtue thereof performed the feudal duties and enjoyed the rights of tenure that went with estates thought worthy to be held by a freeman, i. e., those that went with estates of freehold.3 "The man who is seised is the man who is sitting on land"; he is the man who, in the eyes of the feudal law, was the representative of the land for the time being, and as such owed fealty and performed homage. Lord Mansfield defines seisin, substantially, as that which was handed over by the ceremony of livery of seisin, which was the ceremony of feudal investiture; 5 but that definition is not helpful except to show that, because livery of seisin was necessary only where freehold estates were created or transferred, seisin is a word used properly only where freehold estates are involved. A much better

1 "In the history of our law there is no idea more cardinal than that of seisin." Pollock and Maitland, Hist. of Eng. Law ii. 29.

2 That early in the law seisin meant only possession, see Pollock and Maitland ii. 31 ff.; Williams, Real Property, 17th ed., 35.

3 Day v. Solomon, 40 Ga. 32, 33-4.

4 Pollock and Maitland ii. 29.

6 "Seisin is a technical term to denote the completion of that investiture by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass." Taylor v. Horde, 1 Burr. 60, 107.

definition is the following: "It is only a possession, coupled with an actual claim of a freehold, or possession under such circumstances that the law presumes such a claim, which amounts to a seisin. . . . Seisin, then, may be defined to be possession of land under a claim, either express or implied by law, of an estate amounting at least to a freehold."1 So, too, the possession itself may be actual or implied by law. Where the possession is actual we have seisin in deed or in fact; where it is implied by law, we have a right of immediate possession of land treated as possession, so as to give seisin in law. Seisin in law was thus a fictitious or constructive seisin which the law recognized in an heir or devisee the very moment the ancestor or testator died, or in the remainder man or reversioner on the death of the life tenant in possession.' While seisin in law was good for some purposes, it was so slight a thing that when the heir, for instance, entered and thereby obtained seisin in fact, the latter seisin forthwith merged and put an end to the seisin in law, i. e., the right of immediate possession of the freehold was swallowed up in the actual rightful possession. The fundamental idea about seisin was that while there were two kinds, there could be at a given moment for a given piece of property only one seisin, and only one kind.

Disseisin was the wrongful taking away from the real owner of his actual seisin. "Disseisin was formerly a notorious act, when the disseisor put himself in the place of the disseisee as tenant of the freehold and performed the acts of the freeholder and appeared in that character in the lords' court; "4 or, as Lord Mansfield put it: "Disseisin, therefore, must mean some way or other turning the tenant out of his tenure and usurping his place and feudal relation." How this was accomplished originally, unless the lord conspired with the disseisor, we do not know. It is sufficient for

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1 Towle v. Ayer, 8 N. H. 57, 58-9.

2 In Bracton's time there could be a vacant seisin. The fiction of seisin in law came later. Pollock and Maitland ii. 60.

8 I Wash., Real Property, 6th ed., 54, § 95.

4 Lord Ellenborough in William v. Thomas, 12 East 141, 155. See 4 Kent Com. 482.

5 Taylor v. Horde, supra, at p. 107.

6 "From what we know of the feudal law it does not appear how a disseisin could be effected without the consent or connivance of the lord; yet we find the relationship of lord and tenant remained after the disseisin. Thus, after the disseisin the lord might release the rent and services to the disseisee; might avow upon him; and if he died, his heir within age, the lord was entitled to the wardship of the heir." Hargrave and Butler's note to Litt. § 448.

our purpose that disseisin was early possible, and that every wrongful taking of seisin from the real owner was not necessarily a disseisin. That only was disseisin, where some one entered upon and ousted one who had taken actual possession under claim of freehold. Certainly this was true of actual disseisin, though there was a disseisin by election, where persons, to avail themselves of the remedy by assize, frequently were allowed to suppose or admit themselves to be disseised when they were not.2 Whatever may be true of the law of to-day, there was in the early common law a clear distinction between disseisin and other forms of adverse possession; for unless actual seisin was interfered with, or could be regarded as interfered with for the purposes of the action, there was no disseisin, though there might perhaps be an abatement or some other form of adverse possession.

From disseisin we pass to the other forms of adverse possession. Putting an end to seisin in law by wrongfully taking actual seisin constituted the kinds of adverse possession known as abatement and intrusion, while there were also other kinds of adverse possession known as discontinuance and deforcement.

A stranger's unlawful entry under claim of freehold and retention of possession of land which had descended to an heir or passed to a devisee who had not yet entered was known as abatement. He did not disseise the heir or the devisee, because they did not have actual seisin, but he entered upon the vacant possession and abated, i. e., overthrew, the freehold of the heir or devisee, who then had a right of entry as well as of action.1

Intrusion was of two kinds: the first was the same as abatement, except that it concerned the remainder man or reversioner after

13 Bl. Com. 169; Co. Litt. 153 b.; Litt. § 279; 4 Kent Com. 482.

2 Curiously enough, Lord Mansfield extended the meaning of disseisin by election to cover the case of an owner refusing to consider himself disseised, where, by the early law, he actually was disseised. "In Taylor v. Horde, 1 Burrow 60, the principles of the common law were ably shown by Mr. Knowler to be, that a wrongful possession by a stranger and feoffment by him passed to the feoffee an actual immediate estate of freehold, with all its rights and incidents, defeasible only by the lawful owner, whose right of entry, however, was taken away by a descent cast on the heir of the feoffee. Lord Mansfield, however, held that mere acts of intrusion or trespass, followed by a feoffment, could not thus turn the lawful owner into a disseisee, unless he should elect to consider himself disseised, and this doctrine has been since generally adopted in the English cases (Jerrett v. Weare, 3 Price 575; Goodright v. Forrester, I Taunt. 578; Doe v. Lynes, 3 B. & C. 388), notwithstanding the earnest stand made against it by Mr. Preston and Mr. Butler. Preston on Abstracts 279; Butler's note to Co. Litt. 330 b." Rawle, Covenants for Title, 5th ed., § 38, note. Bl. Com. 167-8. 43 Bl. Com. 175.

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the death of the life tenant in possession; and the second was the same as disseisin except that the would-be disseisor, or the ousted party, was the king. In the first there could be no disseisin, because the remainder man or reversioner did not have actual seisin. In the second there could be no disseisin, because the king could not take the subject's seisin, for that was held of the king and the king could hold of no one, while a subject could not take the king's seisin, for a subject must hold of the king, whereas the king's holding was allodial. In intrusion, as in abatement, the dispossessed party had a right of entry as well as of action.2

A feoffment by a tenant in tail in fee or in tail, or for the life of the feoffee was a discontinuance. So, too, prior to the Statute 32 Henry VIII, c. 28, the alienation of a husband seised jure uxoris worked a discontinuance of the wife's estate. Moreover, “a discontinuance is the effect of a disseisin, when, on certain events, the person disseised has lost his right of entry upon the disseisor and can only recover by action." 8 Where the tenant in tail worked a discontinuance, that meant that on his death neither the heir in tail, nor those in remainder or reversion, could enter, but instead they had only a right of action, requiring strict proof.1

Deforcement, while broad enough to include disseisin, abatement, intrusion and discontinuance, had also a narrower meaning when discriminated from them: "Such a detainer of the freehold from him that hath the right of property but never had any possession under that right, as falls within none of the injuries which we have before explained."5 It covered, for instance, the case where the entry was originally lawful but the detainer has become unlawful, i. e., where a lessee for years, after the expiration of his term, refuses to deliver up the possession. In deforcement, as in

1 Taylor v. Horde, supra, at p. 109.

2 3 Bl. Com. 175.

Webb v. Marsh, 22 Can. Supreme Ct. 437, 441.

8 Hargrave & Butler's note to Litt. § 448.

4 2 Bl. Com. 198; 3 Bl. Com. 171-2.

5 3 Bl. Com. 172-3.

6 3 Bl. Com. 173. Later, with reference to fines and the statutes of limitation, adverse possession was discriminated in English law from disseisin without being called deforcement. For instance, it was held that a tenant at sufferance could not be a disseisor since his entry was not wrongful. Doe v. Perkins, 3 M. & S. 271. See Doe d. Souter v. Hull, 2 D. & R. 38. Yet, where it was wrongful for him to stay in possession he could acquire title by adverse possession under the statute of limitations, since there the question was wholly one of whether the possession was inconsistent with a freehold in the real owner. Doe v. Gregory, 2 Ad. & E. 14. See Cholmondeley v. Clinton, 2 J. & W. 1, 164. So a lease by a stranger and entry by the lessee was not

discontinuance, there was no right of entry, but only a right of action.1

The terms having been defined, our first question is: Could the disseisee of lands convey them during the disseisin? Because at a given moment only one seisin was possible for a given piece of land, and because to make a valid conveyance of a freehold at common law it was necessary for the feoffor to hand this seisin over to his feoffee by the ceremony known as livery of seisin,2 this question of whether a disseisee could convey during the disseisin necessarily has very narrow limits. Indeed the limits are so narrow that the general impression is that the question is not debatable.

So far as the ceremony of livery of seisin in fact is concerned, i. e., livery of seisin where the parties actually went on the ground and there made the conveyance and performed the ceremony, the question certainly is not debatable; for the entry by the disseisee for the purpose of the conveyance restored his seisin and so took away from him the character of a disseisee. Where there were several in possession only the one who had the legal title had the seisin; and while livery in deed required the delivery to the feoffee of what was known as a vacant possession, that seemingly was complied with where all persons who had any "lawful" estate or possession in the land conveyed joined in or consented to the livery or else were absent from the premises.

a disseisin in fact, without an entry by force or an avowed intention to disseise. Jerrett v. Weare, 3 Price 575. But in 1833 by the Real Property Act of 3 and 4 Will. IV, c. 27 (amended in 1874 by 37 and 38 Vict. c. 57) the distinction between adverse possession and disseisin was ended in England. Nepean v. Doe d. Knight, 2 M. & W. 894; see Culley v. Taylerson, 3 Per. & Dav. 539. Under that act one gets title by limitation, not by virtue of adverse possession, but in general because certain fixed times have elapsed since the former owner acquired rights of entry, distress or action.

13 Bl. Com. 175.

2 Livery of seisin was the formal delivery of possession necessary at common law where one, who by right or by wrong, had a freehold estate, conveyed to one who was to take a freehold estate. It should be discriminated from the feoffment of which it was a part. A feoffment included both (1) a livery of seisin, i. e., an outward symbolic transfer of that possession which goes with a freehold, and (2) a statement in the form required by law of the precise freehold estate granted. The livery transferred the possession; the statement of the estate granted fixed the rightful limits of that possession, or, in other words, defined the feoffee's title. Williams, Real Property, 17th ed., 139.

3 Co. Litt. 48 b, 49 a; see Knox v. Jenks, 7 Mass. 488.

* Litt. § 701; see Barr v. Gratz, 4 Wheat. (U. S.) 213, 223; 4 Kent Com. 482. Shep. Touch. 213. It was because of the need of giving a vacant possession that