of. CHAPTER II. THE NATURE OF POSSESSION AS REGARDS THINGS COR- General notion POSSESSION consists in physical power, associated with consciousness, and therefore in every case of acquisition of possession two things are necessary, a corporeal relation and animus. They must also concur for the continuance, which, therefore, must depend upon the same association as the acquisition, of possession (a). Possession proper. Qualities of possession. Possession is a condition of fact, the origin and source of certain rights, and indeed is at once both a fact and a right. In itself, according to the general notion of it before given, and according to its nature, in so far as it consists of a mere nonjuridical condition of fact, or simple detention, is a simple fact; but, in so far as rights are bound up with the mere existence of that condition of fact, is a right (b); and true possession consists in the exercise of property (c). The rule established by the Twelve Tables of the Roman Law was that mere possession, independent of all right, is the foundation of property itself, and that whoever possessed anything for one or two years became the owner of it. In the Roman Law possession must have been, and in the present law of Scotland must be, acquired bonâ fide and by a just title; but in English law is subject to no such qualifications. On some occasions and for some purposes, indeed, in courts of equity, the nature (a) Sav. Poss. B. iii. s. 31. Savigny, B. i. s. 12; B. ii. s. 25, p. 213, by Perry. of possession, whether bonâ fide or the contrary, is an law as to the The inquiry into the nature of the possession in our Object of the law is only material with a view to ascertain whe- inquiry in our ther it has been during the period within which the nature. plaintiff in a possessory action has to show that he has had possession of, or made an entry into, the estate within the limited period, such as to make good what he is to prove in order to entitle him to his action; viz., whether it shows him to have had, during any part of the period, by himself or by another, the actual possession; or whether the estate has, during the whole, time, been in fact held and enjoyed by an adverse claim of title, that is, a claim not consistent with the title of the plaintiff (e). lands. With respect to the title to lands, said Lord Redes- As applied to dale (f), there are three points: first, who has possession of the freehold; then, who has the right to that possession (because possession may be in one and the right to it in another); and, lastly, who has, what is the highest right, the right of property. The right to the possession may be in one man, and the right of property in another; there may exist a mere right which can only be asserted by an action according to the nature of the right; the possession which has been gained having either continued so long, or been accompanied with such circumstances, that the right of property is divested for the purpose of entering, and the person claiming the right of property is, in the language of the law, put to (d) Dormer v. Fortescue, 3 Atk. 134; see also Hicks v. Sallitt, 3 De Gex, M. & G. 782. (e) 2 Jac. & W. 164. Is in fact, or in law: -in fact, -in law. his right, and if he attempts to gain the possession in any other way, he is a wrong-doer; he can only assert his right in a court of justice. In our law, possession or seisin, as a condition of fact, although commencing in wrong, if continued for the requisite period, ripens into and confers on the possessor a lawful title to the property possessed, and is either in deed or fact, that is, actual (g), or in law (h). Possession in fact is acquired either by an actual entry into land or into some part in the name of the whole (i), or by the receipt of the rents or profits from the tenant of it (k), and either by some person on his own behalf or on behalf of another (7), or by the entry of a lessee on a demise by a lessor, or by a recovery and execution thereon (m). For some purposes indeed, e. g., the assignee of a lease may, without actual entry, become liable to the rent and covenants of the lease by having a "legal possession" equivalent to an actual entry, that is, having accepted the thing assigned by accepting the assignment of it (n). Possession in law is where land comes to a person by act of law, as to an heir by descent from his ancestor in possession. There the heir has only the right to the possession, and to acquire it in fact must enter into the land or into a part in the name of the whole (o). So by the grant, at common law, of a rent, the grantee until payment of it, or render of something in the nature of seisin, has a seisin in law only (p), and an assignee of the grantee is in the same position (q). But if the (n) Williams v. Bosanquet, 2 Brod. & B. 238. (0) Co. Litt. 266 b, 277 a ; 3 Barn. & C. 305. (p) Co. Litt. 160 a, 314b, 315a; Murray, App., Thornley, Resp., 2 C. B. 217. (q) Hayden, App., The Overseers of Tiverton, Resp., 4 C. B. 1. rent be limited by way of use, the grantee is, by the grant alone, seised of the rent in fact (r). Possession properly so called is not applicable to Inapplicable to equitable estates in equity, but follows the legal ownership; and titles. the actual possession, when in the equitable owner, is regarded as merely the possession and held by the permission of the legal owner. And although there is no splitting of equities (s), yet an equitable estate is very different from an equitable right to have a conveyance of the legal estate (t), as under articles for a settlement (u). The nature of possession, as between owners of these different kinds of estates, or trustee and cestui que trust, will be more particularly noticed in a subsequent section of this chapter. In many acts of parliament, said Lord Thurlow (x), an equitable estate is considered the same as if it were a legal estate, and he thought that the word seisin will extend to being seised of an estate in equity. In Tucker v. Thurstan (y), Lord Eldon, C., held that the owner of an equity of redemption, who had granted an annuity for lives out of the lands in mortgage, was a grantor seised in fee simple in possession within the 8th sect. of the Annuity Act, 17 Geo. 3, c. 26, or that the case was not within the act. Possession, to confer a right, must be adverse against a person having title (z), that is, be inconsistent with the right of such person to the possession (a); and whilst the possessor stands in no fiduciary relation to such person, the possession, even taken by consent, founded on mistake, is not, on those grounds, the less adverse (b). Possession, however, is ambiguous (c), (r) Heelis, App., Blain, Resp., 18 C. B., N. S. 90. (s) See Nouaille v. Greenwood, 1 T. & R. 26. (t) Per Holroyd, J., 1 B. & Ald. 564. See also 2 B. & C. 133. (u) Stewart v. Marquis of Conyngham, 1 Ir. Eq. Rep., N. S. 534. (x) 2 Bro. Ch. Rep. 268. (2) 1 B. & Adol. 259. (b) Per Lord Eldon, C., 2 Jac. (c) 1 Swanst. 359; Jac. 505. Must be ad verse to confer right. "Adverse," what. Adverse in former sense no longer necessary. and may be long and uninterrupted without being necessarily adverse. Thus, possession for thirty-five years against a tenant in tail and his ancestor was presumed to be, under a conveyance by the ancestor, not operating a discontinuance of the estate tail (d). So if, in instruments, the persons between whom they are made, are willing to state, and state the character and title under which they have had and have possession, their possession must be attributed to the character and title which they so state (e). When one person against the will of another person holds possession claimed by such other, and when required to relinquish it refuses, and more especially when he resists proceedings instituted in a court of justice for the recovery of the possession, it can never afterwards be contended that a party so acting does not hold adversely against such a claimant ; and he cannot more effectually or unequivocally signify his intention of holding adversely than by contesting, in a court of justice, the right of a party claiming title against him (ƒ). A right of way over land in one person is not adverse to, but is consistent with, the possession of the land itself in another person (g). The term "adverse possession," though of a known signification, is not used in pleading, and very rarely,—I think only once or twice very recently,―in the language of the statutes (h). It is a relative phrase and means such possession as is inconsistent with another's right, but may consist in various things, and without setting forth by whom, or how, and in what manner adverse, an averment of such a possession is very vague (i). Adverse possession, in the sense in which it was formerly used, is no longer necessary to constitute a (d) Doe d. Smith v. Pike, 3 B. & Ad. 738. (e) See Dillon v. Parker, 1 Swanst. 359, on appeal, Jac. 505. (f) Longf. & Town. Ir. Rep. 130. (g) 1 Jones's Ir. Rep. 127. (h) 3 & 4 Will. 4, c. 27, ss. 15, 30, 31, 33; 6 & 7 Vict. c. 54, s. 4. (i) Per Lord Brougham, C., Hardman v. Ellames, 2 Myl. & K. 789. |