description, and limit the estate to A. and B., to hold as renants in common, and not as joint-tenants.

As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the statutes of Henry VIII. and William III., before mentioned,(d) to make partition of their lands; which they were not at common law. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common.26 Their other incidents are such as merely arise from the unity of possession; and are therefore the same as appertain to joint-tenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2, c. 22, and 4 Anne, c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate ;(e) though, if one actually turns the other out of possession, an action of ejectment will lie against him. (f) But, as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions,(g) unless in the case where some entire or indivisible thing is to be recovered,)(h) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.28

26 But a tenancy in common with benefit of survivorship may exist without being a joint-tenancy, because survivorship is not the only characteristic of a joint-tenancy. Per Bayley, J., 1 M. & S. 435.-CHITTY.

But adverse possession, or the uninterrupted receipt of the rents and profits,—no demand being made by co-tenant, or, if made, refused, and his title denied,-is now held to be evidence of an actual ouster. And where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the cotenant the jury will be directed to presume an actual ouster, and consequently to find a verdict for the defendant, the plaintiff's right to recover in ejectment after twenty years being taken away by the statute of limitations. Cowp. 217. But the statute always receives a strict construction in favour of the claimant: therefore presumptions are against adverse possession, as between privies. 2 Bos. & Pul. 542. Îf a lessee of two tenants in common pay the whole of the rent to one after notice from the other to pay them each a moiety, the tenant in common who gave such notice may distrein for his share. Harrison vs. Ornby, 5 T. R. 246. 5 Bar. & Ald. 851.

An action of ejectment is maintainable by one of two tenants in common who had agreed to divide their property, if after such agreement the defendant who held under both as occupier pay rent under a distress to such co-tenant alone; and it is no defence to such action that the deed of partition between the co-tenants had not been executed. 3 Moore, 229. Brod. & B. 11 S. C.; and see 5 Bar. & Ald. 851.—CHITTY.

28 The rule which determines whether tenants in common should sue jointly or severally is founded upon the nature of their interest in the matter or thing which is the cause of action. For injuries to their common property, as trespass quare clausum fregit, or a nuisance, &c., or the recovery of any thing in which they have a common right, as for rent reserved by them, or waste upon a lease for years, they should all be a party to the action; but they must sue severally in a real action generally, for they have several titles. Com. Dig. Abatement, E. 10. Co. Litt. 197. But if waste be committed where there is no lease by them all, the action by one alone is good. 2 Mod. 62. one tenant in common cannot avow alone for taking cattle damage feasant, but he ought also to make cognizance as bailiff of his companion. 2 Hen. Bla. 386. Sir Wm. Jones Rep. 253.-CHITTY.

But

By the 3 & 4 W. IV. c. 27, s. 12, the same provision is made with respect to the possession of one tenant in common as has already been mentioned with respect to that of a joint-tenant. Ante, p. 182, n.; and see as to the construction of this clause Doe d. Calley vs. Taylorson, 3 Per. & Dav. 539.-STEWART.

An entry or possession by one tenant in common enures to the benefit of his cotenants, not only as concerns themselves, but as concerns strangers. Caruthers vs. Dunning, 3 S. & R. 381. There may be cases, however, in which the entry or possession of one tenant in common may amount to an ouster, so as to give him on the one hand the advantage of an adverse holding, and, on the other hand, entitle his co-tenant to treat him as a stranger and trespasser. What, then, amounts to such an ouster? It must be by some clear, positive, and unequivocal act, amounting to an open denial of their right

Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty: 2. By making partitions between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.

CHAPTER XIII.

OF THE TITLE TO THINGS REAL, IN GENERAL.

THE foregoing chapters having 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 now come 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:(a)—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. This

(@) 1 Inst. 345.

and putting them out of the seisin. Such ouster will not be presumed merely from his taking the rents and profits, (unless after the lapse of a very great length of time,) but must be proved by decisive acts of a hostile character. Watson vs. Gregg, 10 Watts, 289. Mere declarations will not answer the purpose. Hall vs. Matthias, 4 W. & S. 331. A mere entry by one co-heir into the land of his ancestor, claiming it all, and taking the rents and profits for twenty-one years, is no disseisin of the other heirs: to make it such, there must be some plain, decisive, and unequivocal act or conduct on the part of the heir so entering amounting to an adverse and wrongful possession in himself and disseisin of the others. Hart vs. Gregg, 10 Watts, 185. Batton vs. Hamilton, 2 W. & S. 294. Lloyd vs. Gordon, 2 Har. & McHen. 254. Jackson vs. Tibbitts, 9 Cowen, 241. McClung vs. Ross, 5 Wheat. 116. Where land is devised by their common ancestor to several persons in common, and one of them purchases an outstanding or adverse title, such purchase will enure to the common benefit, subject to a ratable contribution to the expense. Van Horne vs. Fonda, 5 Johns. C. R. 388. Lee vs. Fox, 6 Dana, 171. Thurston vs. Masterson, 9 Dana, 228. One joint-tenant or tenant in common cannot erect buildings or make improvements on the common property without the consent of the rest, and then claim to hold until reimbursed a proportion of the moneys expended; nor can he authorize this to be done by a third person. This is the rule at law. There are, however, cases in which an owner of land standing by and permitting another to spend his money in improving it has in equity been deemed a delinquent, and has been compelled to surrender his right on receiving compensation, or else to pay for the improvement. But in these cases there is always some ingredient which would make it a fraud in the owner of the land to insist on his legal right. Crest vs. Jack, 3 Watts, 238. Green vs. Putnam, 1 Barbour, 500. As between tenants in common or joint-tenants of a house or mill which falls into decay, and the one is willing to repair but the other is not, he that is willing shall have a writ de reparatione facienda; and the writ saith ad reparationem et sustentationem ejusdem domus tenetur; whereby it appeareth, as Sir Edward Coke saith, that owners are in that case bound pro bono publico to maintain houses and mills which are for the use and habitation of men. But it is only to houses and mills already erected and in being that this right extends, and not to woodland or arable lands; for there the one has no remedy against the other to make enclosure or reparation for the safeguard of the wood or corn. Gregg vs. Patterson, 9 W. & S. 197.— SHARSWOOD.

VOL. I.-35

545

may happen, when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of *the heir, or after the death of a par*196] ticular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many others that might be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without such actual possession no title can be completely good.

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 disseised, or otherwise kept out of possession, by any of the means before mentioned, 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 disseisor, 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 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 hath 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 :(b) for, until the contrary be proved by legal demonstration, the law will rather presume the *197] right to reside in the heir whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of descent; in order that there might be a person always upon the spot to perform the feodal duties and services; (c) and therefore when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. 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

1 In general, a person in actual possession of real property cannot be ousted, unless the party claiming can establish some well-founded title; for it is a general rule, governing in all actions of ejectment, (the proper proceeding to recover possession of an estate,) that the plaintiff must recover on the strength of his own title, and of course he cannot in general found his claim upon the insufficiency of the defendant's, (5 T. R. 110, n. 1. 1 East, 246. 11 East, 488. 3 M. & S. 516;) for possession gives the defendant a right against every person who cannot show a sufficient title, and the party who would change the possession must therefore first establish a legal title. Id. ibid. 4 Burr. 2487. 2 T. R. 634. 7 T. R. 47. And this rule, it is said, prevails even if a stranger who has no colour of title should evict a person who has been in possession short of twenty years but who has not a strict legal title. 2 T. R. 749. 1 East, 246. 2 East, 469. 13 Ves. Jr. 119. But, according to Allan vs. Rivington, 2 Saund. 111, a., and 6 Taunt. 548, n. a., a prior occupancy is a sufficient title against a wrongdoer; but it is observed in a note to the first case that this is contrary to the general use, and it is suggested that there is a mistake in terms. At all events, a person who is let into possession by a landlord cannot after the expiration of the tenancy put the plaintiff to prove his title in an action of ejectment, or dispute the same. 2 Bla. R. 1250. 7 T. R. 488. 4 M. & S 347.-CHITTY.

means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath 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, in consequence of the other's negligence. And by this, and certain other 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. This is frequently spoken of in our books under the name of the mere right, jus merum; and the estate of the owner is in such cases said to be totally devested, and put to a right. (d) A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist; who has thereby obtained the absolute right of possession. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law: by this means the disseisor or his heirs gain the actual right of possession: *for the law presumes that either he had [*198 a good right originally, in virtue of which he entered on the lands in question, or that since such his entry he has procured a sufficient title; and, therefore, after so long an acquiescence, the law will not suffer his possession to be disturbed without inquiring into the absolute right of property. Yet still, if the person disseised or his heir hath the true right of property remaining in himself, his estate is indeed said to be turned into a mere right; but, by proving such his better right, he may at length recover the lands. Again, if a tenant in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies; here the issue in tail hath no right of possession, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heirs, unless he had power so to do; and therefore, as the ancestor had in himself the right of possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by showing the absolute right of property to reside in another person. The heir therefore in this case has only a mere right, and must be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is given for either party in any possessory action, (that is, such wherein the right of possession only, and not that of property, is contested,) and the other party hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.3

(d) Co. Litt. 345.

It has recently been enacted that no descent, cast, or discontinuance which shall have happened after the 31st day of December, 1833, shall defeat any right of entry for the recovery of land. 3 & 4 W. IV. c. 17, s. 39.-STEWART.

3 But a writ of right is now abolished by the 3 & 4 W. IV. c. 27, s. 36; and by the same act (s. 2) one period of limitation is established for all lands and rents, it being enacted that after the 31st of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. Persons under the disabilities of infancy, lunacy, coverture, or beyond seas, and their representatives, are allowed ten years from the termination of their disability or death, (s. 16;) but no entry, action, or distress shall be brought beyond forty years after the right of action accrued, (s. 17.)— STEWART.

The effect of the statute 3 & 4 W. IV. c. 27 is to do away with this multiplicity of distinctions. A man may now have either the bare possession of land without the right of property, or he may have the right of property without possession, or he may have possession and right of property united. The statute which has been just mentioned, and which was passed for the "limitation of actions and suits relating to real property, and

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, and I retain *nothing but the mere right of property. And even this right of *199] 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 alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath 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 a 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 union consists,

IV. A complete title to lands, tenements, and hereditaments. For it is an ancient maxim of the law, (e) 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.(f) And when to this double right the actual possession is also united, when there is, according to the expression of Fleta,(g) juris et seisinæ conjunctio, then, and then only, is the title completely legal.

CHAPTER XIV.

OF TITLE BY DESCENT.

THE several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of property) may be reciprocally lost and acquired: whereby the dominion of things real is either continued or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims () Mirr. 1. 2, c. 27.

) Co. Litt. 266. Bract. l. 5, t. 3, c. 5.

() L. 3, c. 15, 5.

for simplifying the remedies for trying rights thereto," enacts (s. 35) that at the determination of the period which it limits for making an entry, or a distress, or, bringing a quare impedit, (which is the remedy for the recovery of an advowson,) or other action or suit, the right and title of the person who might within the time limited have had such remedies for the recovery of land, rent, or advowsons, shall be extinguished; and to recover that which has ceased to have any existence, no remedy can remain. In this point the present statute differs from the earlier limitation acts; for they barred the remedies only, without destroying the right.-Kerr.

The mere student may be misled by the use of the term "actual possession" all through this chapter. The author means only possession of the freehold which a man may have, either by his own personal occupation or that of his lessee for years or at will.COLERIDGE.