CHAPTER XIII.

OF THE TITLE TO THINGS REAL, IN GENERAL.

THE foregoing chapters have been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein; I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

A title is thus defined by sir Edward Coke, titulus est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession of his property.

There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate, without any apparent right, or any shadow or pretence of right, to hold and continue such possession.

II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself but in another. For if a man be disseized, or otherwise kept out of possession, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it

whenever he thinks proper, by entering upon the disseizor, and turning him out of that occupancy, which he has so illegally gained. 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 disseizor, or other wrongdoer, dies possessed of the land whereof he so became seized 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 disseized; and it shall not be lawful for the person disseized to divest this apparent right by mere entry or other act of his own, but only by an action at law. Yet, if he omit to bring his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other's negligence. And by this means, the party kept out of possession may have nothing left in him, but what we are next to speak of, viz.

III. The mere right of property, the jus proprietatis, without either possession or even the right of possession.

Thus, if a disseizor 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 disseizor 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, 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.

IV. A complete title to lands, tenements, and hereditaments. When there is juris et seisinæ conjunctio, then, and then only, is the title completely legal.

CHAPTER XIV.

OF TITLE BY DESCENT.

THE methods of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor and an estate, so descending to the heir, is in law called the inheritance.

The doctrine of descents, or law of inheritances

in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. And, as this depends not a little on the nature of kindred, and the several degress of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood.

Consanguinity, or kindred, is defined by the writers on this subject to be, the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.

Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, greatgrandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son, his grandsire and grandson in the second; his great grandsire, and greatgrandson in the third.

This lineal consanguinity, we may observe, falls strictly within the definition of vinculum personaram ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor.

Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, whence these relations are branched out. As if John Stiles hath two sons, who have each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.

The method of computing these degrees, in the canon law, which our law has adopted, is as follows. We begin at the common ancestor, and reckon downwards; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree; for from the father to each of them is counted only one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz. his own grandfather, the father of Titius.

The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules, or canons of inheritance,