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CHAPTER VI.

TITLES.

SECTION 49. TITLES.

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A title is the method of acquiring and the right of holding an estate in real property.'

Titles are first divided into original titles and derivative titles. Original titles include those quired by discovery, occupancy, conquest, or cession. Derivative titles are subdivided into titles by descent and titles by purchase. Titles by purchase are further subdivided into those arising from acts of the parties, and those arising by operation of law. Titles by act of the parties can arise either from deeds or wills. Titles by operation of the law, include those resulting from natural causes, those resulting from political relations, and those resulting from public policy. According to Lord Coke's defini

In these cases, the disseisor or tion, titulus est justa causa pos

abator has only a mere naked sidendi id quod nostrum est; a

possession, which the rightful title is the means whereby the

owner may put an end to, by owner of lands has the just pos

an entry on the land; but in session of his property. 345 b.

the mean time, till some act be infra. But Sir William Black

done by the rightful owner to stone observes, there are sev

divest this possession, and eral stages or degrees requisite

assert his title, such actual to form a complete title to lands

possession is prima facie eviand tenements. The first de

dence of the legal title in the gree of title is the bare posses

possessor; and it may, by sion, or actual occupation of

length of time, and negligence the estate, without any appar

of him who has the right, by ent right, or any pretence of

degrees ripen into a perfect and right to hold and continue such

indefeasible title; and in all possession. This may happen

events, without such actual when one man disseises anoth

possession, no title can be comer; or where after the death of

pletely good. The next step to the ancestor, and before the

a good and perfect title is the entry of the heir, a stranger

right of possession, which may abates, and holds out the heir.

reside in one man, while the VO. VI.-6.

81

SECTION 50. ORIGINAL TITLES. “Original titles rests in some degree on fiction, and denotes that state of ownership beyond which inquiry cannot be made, the land being held in paramount right.

“In its strict definition, original titles is that right by which a person attains property in a thing which at the time of its acquisition is not in the ownership of any other person. In the law of real property this definition must be modified by circumstances. It is actual possession is in another.

seised, he will then by sentence Thus, in the case of disseisin or

of law recover that possession abatement, the right of posses

to which he has such actual sion is in the disseisee or heir,

right. Yet if he omits to bring who may exert it, whenever hé

this his possessory action within thinks proper, by an entry.

a competent time, his adversary And the actual possession is in

may imperceptibly gain an the disseisor or abator. But

actual right of possession. And this right of possession is of two

by this, the party kept out of sorts: an apparent right of

possession may have nothing possession which may be de

left in him, but the mere right feated by proving a better; and

of property, or jus proprietatis, an actual right of possession,

without either possession or which will stand the test

even the right of possession; against all opponents. Thus, if

and this estate is said to be the disseisor or other wrong;

devested and turned to a right. doer dies possessed of the land

2 Bl. Com. 197. It is devested whereof he so became seised by

because the rightful owner is his own unlawful act, and the

turned out of possession; and same descends to his heir; now,

it is turned to a right, because by the common law, the heir

the right of possession,

and has obtained an apparent right,

consequently the right of entry, though the actual right of posses

is lost, and nothing left but the sion resides in the person disseis

jus merum, or mere right of ed; and it shall not be lawful for

property, which cannot be the person disseised to devest

regained by a possessory, but this apparent right by mere

only by a real action. 3 Cru. entry or other act of his own,

Dig. 370. Thus if a disseisor but only by an action at law;

turns me out of possession of for, until the contrary be prov

my lands, he thereby gains a ed by legal demonstration, the

mere naked possession, and I law will rather presume the

still retain the right of possesright to reside in the heir,whose

sion and right of property, If ancestor died seised, than in

the disseisor dies, and the lands one who has no such presump

descend to his son, the son gains tive evidence to urge in his

an apparent right of possession; favour. 2 BI. Com, 195—7. Gilb.

but I still retain the actual Ten.21. But if he, who has the

right both of possession and actual right of possession, puts

property. If I acquiesce for in his claim and brings his ac

thirty years, without bringing tion within a reasonable time,

any action to recover possesand can prove by what unlaw

sion of the lands, the son gains ful means the ancestor became

the actual right of possession, and I retain nothing but the mere right of property. And even this right of property will fail, or at least it will be without a remedy, unless I pursue it within the space of sixty years. So also if the father be tenant in tail, and discontinues his estate-tail by alienating the lands to a stranger in fee, the alienee thereby gains the right of possession, and the son has only the mere right, or right of property. And hence it will follow, that one man may have the possession, another the right of possession, and a third the right of property. For if tenant in tail enfeoffs A. in feesimple, and dies, and B. disseises A.; now B. will have the possession, A. the right of possession, and the issue in tail the right of property. A. may recover the possession against B.; and afterwards the issue in tail may evict A., and unite in himself the possession, the right of possession, and also the right of property. In which

difficult to imagine a time when land upon the continents was not subject to some kind of human occupancy and proprietary right, and therefore the law has fixed points beyond which it will not suffer an inquiry to be made. These points mark the initiation of all recognized proprietary interests, and the right by which such interests are held, we call original

title."2

In England the original title to land was in the King. In the United States the original title is in the United States Government, except in the original states, and Texas, where the original title to land is in the State governments.

Original title can never be in an individual. Original title may be acquired by a nation in four different ways, namely: by discovery, occupancy, conquest, and cession."

union consists a complete title to lands, tenements and hereditaments: for it is an ancient maxim of the law, that no title is completely good, unless the right of possession be joined with the right of property, which right is then denominated a double right, jus duplicatum or droit droit. Infra, 266 a. And when to this double right the actual possession is also united, when there is, according to the expression of Fleta, juris et seisinæ conjunctio, then and then only is the title completely legal.

2 BI. Com. 299. Infra. 266 a-Note to Thomas Edition of Coke's

Institutes (1836). 2 Warvelle on Real Property, pp.

131, and 132, 2nd Edition. Including States formed out of

the original States, as Vermont

and Maine. • The methods of acquiring land

by a nation will be again referred to under the subject of Public International Law, Vol. XII, Subject 38.

SECTION 51. TITLE BY DISCOVERY.

At one time the mere discovery of land not subject to any civilized nation, was held to vest the title to such land in the nation by whose subjects the discovery was made. This doctrine, however, is now discarded, and discovery, not followed by occupancy will not create title. At the present time, discovery only gives the first right of occupancy.

SECTION 52. TITLE BY OCCUPANCY.

It is universally recognized that the first nation to occupy territory not before owned by any civilized nation acquires a good title thereto. It is held that such occupancy must be effectual, and a country acquires title only to such extent of country as is naturally controlled by the settlements made.

SECTION 53. TITLE BY CONQUEST.

Title by conquest arises where one country takes territory from another by force of arms. In such cases only the title to public lands are affected, private land titles being recognized at the present time. If one nation is entirely conquered, so that no government continues in existence to make peace, or if the war comes to a close by a mere cessation of hostilities without any agreement between the parties, the title is solely one by conquest. Generally, however, title by conquest is confirmed by the treaty of peace at the close of the war, and the title thus becomes in reality one by cession. $ For the Hinterland doctrine

of Africa, see Vol. XI, Subject recognized in the occupation

38.

SECTION 54. TITLE BY CESSION. Title by cession includes all titles derived by grant from one country to another. As stated in the last section, the cession may be the result of conquest. It may also be the result of a purchase or exchange. At the present day, cessions are made through the medium of treaties, and the methods of making such treaties must be determined by the laws of the individual countries.

SECTION 55. DERIVATIVE TITLES. Derivative titles include all titles not original. An individual can only hold by a derivative title. The two general classes of derivative title, are title by descent, and title by purchase.

SECTION 56. TITLE BY DESCENT. Where a person takes land from a relative who dies intestate he takes by descent. Land taken under a will, even if the deceased was the parent or other near relative, is not taken by descent. The main principles of law governing descent are very old and have probably never been so well set out as in the following extracts from Coke's Commentaries:

Descent, descensus, cometh of the Latin word descendo, and, in the legal sense, it signifieth, when lands do by right of blood fall unto any after the death of his ancestors; or a descent is a means whereby one doth derive him title to certain lands, as heir to some of his ancestors. And of this, and of that which hath been spoken, doth arise another division of estates in fee-simple, viz., every man, that hath a lawful estate in fee simple, hath it either by descent, or by purchase.

"Descents." This word cometh of the Latin

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