those assurances, the student would not be fully prepared to enter on the discussion of its provisions. All the statutes for the limitation of actions have been passed for the purpose of quieting possession, the great object of the policy of those laws. It is generally immaterial to the public, whether this or that individual is the owner of a particular estate, but it is highly important to the public that the person in possession, as the apparent and reputed owner, should be the real and lawful owner, for he is dealt with as such by the world, which sees him appropriate the profits, and exercise without dispute the known rights of a proprietor. Statutes of limitation, therefore, are not made simply for the purpose of terminating questions of title, as between individuals, but are founded on a broader principle, which requires, for the sake of mankind at large, that the person who has long enjoyed, and who has the credit attributed to lengthened enjoyment, should not be lightly disturbed (g). Besides, instability of ownership, protracted exposure to eviction, however contingent or remote, discourages improvement, stimulates a bad species of legal diligence, and, by reducing some families to sudden indigence, and raising others to opulence as sudden, occasions that disorder in society which it is the object of all positive institutions to exclude. While the law shuns the reproach of an injury remediless, it should be especially studious to prevent its own weapons from being used as instruments of oppression. If no restrictions were imposed upon their use, they would quickly be turned against the general peace, and we should incur the opposite reproach of litigiousness-of that state, in which the law ministers less to the wants, than to the passions of men. (g) Per Lord Eldon, 4 Bligh's Parl. Rep. 117. CHAPTER V. General policy of the law of limitation. CHAPTER V. The new act not merely limits the right, but simplifies the remedy, by abolishing most real actions. Some account their different kinds and ob jects. General principles of the old law, in regard to rightful and wrongful titles. This statute does not merely limit the time for the assertion of rights, but, in order to establish greater uniformity and simplicity in the modes of asserting them, and to bring real property generally, with a few unavoidable exceptions, under one law of limitation, it abolishes numerous remedies provided by the ancient system of pleading. Those remedies, known under the denomination of real actions, were, from their expensive, dilatory, and curiously technical character, rarely employed, and yet more rarely with success; but, as means of possible annoyance, they hung over titles, and thus existed rather to inflict injuries on the possessor, than to redress those of the rightful claimant. We must content ourselves with a general outline of of real actions, the nature and objects of real actions. These cannot be understood, nor can the new statute, therefore, be viewed in all its bearings, without reverting to the customs and maxims of our feudal ancestors. The law of limitation, indeed, is a subject which peculiarly involves an inquiry into first principles. Possession or seisin was necessarily the root of every title. When the question of title was stirred, men looked back for the earliest possessor who could be proved (and testimony was chiefly oral, often traditionary) to have held with the known indicia of ownership, to whom, in the absence of contrary evidence, they ascribed the full proprietary right, and in whose successor, according to the course of law, they deemed that right to be inherent. If the present possession was found to be adverse to that right, such possession, it was concluded, must have been gained by wrong, more or less apparent, of yesterday's, or, perhaps, a century's date-by wrong, which time might veil, but could never obliterate, which reasons of policy might require to be overlooked or not too readily redressed, but which rigid justice must still condemn. Hence it was a maxim, that though the remedy might be lost, the right was imperishable-dormit aliquando, moritur nunquam. The modes of wrongful acquisition were determined by the peculiar nature of the system under which the land was held; they resulted naturally from the principles of tenure. The feud was confided to the immediate freeholder, whose duty it was to preserve and transmit the possession conformably to the donation; and so long as that confidence was unbroken, he was said to be seised, and, if entitled for life, or in tail only, his seisin extended its influence to those in remainder and reversion, who, in their proper order and degree, had, by force of his investiture, estates in the land (g). But if a stranger was suffered to possess himself of the tenement, the effect of the grant was suspended, and the feudal relation changed its aspect. As the lord required a tenant ever ready, and no abeyance of the freehold could be endured (h), the stranger became seised as tenant de facto; and, if he claimed indefinitely, his assertion of ownership extended presumably, in utter contravention of the former grant, to a new title under a proper infeudation, which always gave the fee (i), There was now an actual denial of the old title in the face of the feudal body, and the seisin was no longer according to the right, though necessarily observant of the universal laws of tenure. There were four kinds, or rather denominations, of injury to which the freehold was ordinarily exposed: either the tenant, while actually seised, might be ousted by a stranger, and this was called emphatically disseisin; or the possession, while vacant, might be usurped, as, in the interval between the death of the ancestor and the actual entry of the heir, and this was called abatement, or in the (g) Ante, 12. (h) Ante, 14. (i) Ante, 8, CHAPTER V. Different modes of wrongful aq quisition. CHAPTER V. interval between the death of a tenant for life, and the actual entry of the remainder-man, and this was called intrusion; or possession lawfully taken might be wrongfully detained, as where a tenant pur auter vie held after the death of the cestui que vie, or one coparcener held adversely to her companion, and this was called deforcement. Again, the seisin might be injuriously affected by the alienation of the tenant, as when a tenant in tail discontinued (j), or a tenant for life divested the seisin, by means of a tortious assurance. But the freehold was safe, without actual possession by the freeholder, if another held it as his tenant at will or for years, not presuming to give or to receive the feudal seisin (k); for the mere render of rent or other dues by the tenant to a stranger did not Consequences disturb the reversion. In each of the several instances of the wrong. adduced, there was an interruption of the lawful seisin ; or, in other words, a disseisin of a more or less forcible The ownership, from being an estate, now became a right; the immediate taker could not convey, for he had no seisin to deliver; the remainder-man could not grant, for there was no tenant to attorn (7); nor was the ownership, when thus reduced to a naked claim, even devisable, for devises were but one branch of a system of transfer founded throughout upon seisin. The notions of our ancestors on such subjects have been characterized as odd (m), but they were in unison with the institutions of which we inherit so large a part. We must carry them along with us through the subsequent discussion, in order to see how far it has become necessary that we should cast off those long-descended notions and open our minds to new ideas. nature. (5) Ante, 141. (k) Ante, 14, 16, 27. (m) Per Sir J. Mansfield, C. J., in Goodright v. Forrester, 1 Taunt. 578. The progress of a wrongful possession was ordinarily CHAPTER V. marked by three stages. In its first stage, the summary The progresremedy of the owner was an actual entry upon the wrongful title. land-a simple taking, without the forms of law, of that which was still notoriously and indisputably his. But when the wrong had attained a certain degree of maturity, when a cloud had been suffered to gather over the memory of the former title, this right of entry was gone, and the formality of judicial process was required; in other words, a right of action only remained. Such process varied according to the strength of the wrongful possessor's now presumptive right. Thus, in the second stage, while evidence of the lawful title could be readily brought to destroy the presumption, the rightful claimant recovered in the ordinary course of law. But, in the third and last stage, when the adverse enjoyment had ripened into an apparent right, the law would not allow the possession to be disturbed without a vindication by the claimant of his superior right in a proceeding of extraordinary solemnity, which formerly involved even a superstitious appeal to arms (n). The apparent right was the right of possession; the superior right was the right of property; a distinction which flowed from a graduated scale of remedies, rather than of ownership in the abstract, and really meant little more than this, that, in order to promote that settled state of possessions, which, in later times, statutes of limitation have better secured, a line should be drawn between recent and inveterate wrongs, and the one be cognizable in a less, the other in a more solemn form of procedure. Of real actions, therefore, (which all concerned the freehold, for the mere termor had his appropriate remedies of which we shall speak hereafter), some were adapted (n) 59 Geo. 3, c. 46, (abolishing trial by battle). Distinction beof possession, property; and corresponding tween the right and the right of distribution of the remedies, Real actions of two kinds, droi turel and pos sessory; |