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CHAPTER VI.

TITLES.

SECTION 49. TITLES.

A title is the method of acquiring and the right of holding an estate in real property.1

Titles are first divided into original titles and derivative titles. Original titles include those acquired 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

tion, titulus est justa causa possidendi id quod nostrum est; a title is the means whereby the owner of lands has the just possession of his property. 345 b. infra. But Sir William Blackstone observes, there are several stages or degrees requisite to form a complete title to lands and tenements. The first degree of title is the bare possession, or actual occupation of the estate, without any apparent right, or any pretence of right to hold and continue such possession. This may happen when one man disseises another; or where after the death of the ancestor, and before the entry of the heir, a stranger abates, and holds out the heir. VO. VI.-6.

81

In these cases, the disseisor or abator has only a mere naked possession, which the rightful owner may put an end to, by an entry on the land; but in the mean time, till some act be done by the rightful owner to divest this possession, and assert his title, such actual possession is prima facie evidence of the legal title in the possessor; and it may, by length of time, and negligence of him who has the right, by degrees ripen into a perfect and indefeasible title; and in all events, without such actual possession, no title can be completely good. The next step to a good and perfect title is the right of possession, which may reside in one man, while the

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. Thus, in the case of disseisin or abatement, the right of possession is in the disseisee or heir, who may exert it, whenever he thinks proper, by an entry. And the actual possession is in the disseisor or abator. But this right of possession is of two sorts: an apparent right of possession which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Thus, if the disseisor or other wrongdoer dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now, by the common law, the heir has obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law; for, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir,whose ancestor died seised, than in one who has no such presumptive evidence to urge in his favour. 2 Bl. Com. 195-7. Gilb. Ten. 21. But if he, who has the actual right of possession, puts in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became

seised, he will then by sentence of law recover that possession to which he has such actual right. Yet if he omits to bring this his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession. And by this, the party kept out of possession may have nothing left in him, but the mere right of property, or jus proprietatis, without either possession or even the right of possession; and this estate is said to be devested and turned to a right. 2 Bl. Com. 197. It is devested because the rightful owner is turned out of possession; and it is turned to a right, because the right of possession, and consequently the right of entry, is lost, and nothing left but the jus merum, or mere right of property, which cannot be regained by a possessory, but only by a real action. 3 Cru. Dig. 370. Thus if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of possession and right of property. If the disseisor dies, and the lands descend to his son, the son gains an apparent right of possession; but I still retain the actual right both of possession and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of possession,

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."

And

and I retain nothing but the
mere right of property.
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 fee-
simple, and dies, and B. dis-
seises 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

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 seisina conjunctio, then and then only is the title completely legal.

2 Bl.

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.
3 Including States formed out of
the original States, as Vermont
and Maine.

The methods of acquiring land
by a nation will be again re-
ferred 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 recognized in the occupation

of Africa, see Vol. XI, Subject 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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