PART III.

OF THE MODE OF ALIENATION OF REAL PROPERTY.

N this branch of our treatise it becomes necessary to examine the va

IN

real estate or

rious modes by which title to real estate is lost or acquired; and of the various circumstances which occur in transmitting it from one person to another. It involves the consideration of the theory as well as the practice of conveyancing. This leads to the inquiry whether the property has been acquired by descent or purchase. It shows the necessity and points out the mode of preparing abstracts of title, and searching for incumbrances. And it gives the form in which these instruments of alienation are made. We shall treat of these subjects under the following heads, and reserve for the appendix the collection of various forms which are used in the conveyance of real property.

CHAPTER I.

OF TITLE TO THINGS REAL.

Most writers on the subject have adopted the definition of Coke ; (Co. Litt. 345 b.) Titulus est justa causa prossidendi quod nostrum est; signifying the means whereby a man has the ownership and possession of his property. This definition has reference not only to the instruments which convey, and afford the evidence of title, but those acts of possession and occupation which usually attend it. In this sense it embraces not only deeds, wills and other muniments of [312]

ownership, but the actual and rightful enjoyment of property, whether gained by a written transfer from the rightful owner, by descent, or by long and uninterrupted possession.

The evidence by which the title of the claimant is established admits of various degrees, from the slightest presumption to the highest probability. The various stages in this evidence may be properly marked by considering first, simple possession; second, right of possession; and third, the right of property.

1. The lowest order of evidence, in this respect, is that which results from the actual possession. This may happen when one man unjustly expels another, or, in the language of the old cases, disseises him. It may occur when, on the death of the rightful owner, and before the entry of the heirs, a stranger abates, as it is termed, and holds out the heir. The evidence of title derived from bare naked possession is all the time increasing by the acquiescence or negligence of the rightful owner, until at length, it may ripen into an indefeasible right.

Until the true owner has asserted his right to devest this possession, such possession, as against all the rest of the world, affords prima facie evidence of a legal title to the possessor. It is sufficient to enable him to maintain an action against a trespasser who has no actual title to the land, or right of possession. (Hyatt v. Wood, 4 John. 157.) And trespass cannot be maintained against a stranger, except by the person who has the possession in fact of the land. (Campbell v. Arnold, 1 id. 511.)

This presumption in favor of the actual occupant rests on the well known feudal maxim, that seisin must be the basis of every title, except in the case of descent.

2. The next stage of a perfect title is a right to the possession. This right may be in one person, while the actual possession is in another. A tenant for a term of years may be turned out of possession by a naked trespasser. In this case, he who was expelled has the right of possession, which the law will protect, while a wrongdoer has the actual possession. This right of possession is either apparent, which may be rebutted by a better right; or actual, which will be paramount to all other claims. There is much nice reasoning on this subject in the old English books, which has little or no application to our jurisprudence, at the present day.

3. The last ingredient of a perfect title is the right of property; the jus proprietatis of feudalism. This may exist in the original and rightful owner, after the right of possession has been gained by one party, and the actual possession by another. The distinction between the right of possession and the right of property, at the present day in this state, is followed by no practical consequence since 1830, when, by the revised statutes, the statute of limitations was fixed at twenty years, whether the remedy was brought to assert a mere right to the land, or a right to the possession of it. (2 R. S. 292, repealed by the Code, and the substance re-enacted, Code, §§ 75, 78, et seq.)

The union of the three preceding requisites are essential to a perfect title to lands, tenements and hereditaments, viz. the actual possession, the right to possession and the right of property. Lord Coke thus states the whole doctrine: "It is to be known that there is jus proprietatis, a right of ownership; jus possessionis, a right of seisin or posssession; and jus proprietatis et possessionis, a right both of property and possession. For example, a man may be disseised of an acre of land, the disseisee hath jus proprietatis, the disseisor hath jus possessionis; and if the disseisee release to the disseisor, he hath jus proprietatis et possessionis." (Co. Litt. 266 a.) The owner of real property who proposes to sell or mortgage, must, according to the English writers, be prepared to deduce his title to the possession of it during a period of sixty years at least, previous to such sale or mortgage. (Whart. Conv. 497.) This period was fixed with reference to the statute of limitations in England, which formerly required a period of sixty years to bar a writ of right. The act of 3 and 4 Will. 4, ch. 27, among other changes, reduced the period of limitations to twenty years, and abolished all the old real and mixed actions, except dower quare impedit and ejectment, and provided that where the remedy is barred by time, the right and title of the person in any land, rent, &c. whose remedy is thus taken away, is extinguished. This is said to be a great improvement, and very much assists titles depending upon non-claim. (Sugden's

Vend. 613, 614.)

Opinions differed as to the reason of the rule fixing sixty years as the minimum extent to which abstracts of title should reach. If it depended solely on the analogy drawn from the statute of limitations it was supposed that a shorter period might be adopted. But the question has been conclusively settled in England by Lord Cotten

ham, in the case of Cooper v. Emery, (1 Phil. 388,) that the period for which a good title is required to be shown is still sixty years, notwithstanding the statute of 3 and 4 Will. 4. In delivering his judgment the chancellor says: "It was supposed that by the operation of that act, it was not necessary that the title should be carried back, as formerly, to a period of sixty years, but that some shorter period would be proper. It appears that conveyancers have entertained different opinions on that subject; but after considering it I am of opinion that the statute does not introduce any new rule in this respect; and that to introduce any new rules, shortening the period, would affect the security of titles. One ground of the rule was the duration of human life; and that is not affected by the statute. It is true that in other respects the security of a sixty years' title is better now than it was before. But I think that is not a sufficient reason for shortening the period; for adopting forty years, or as it has been suggested by a high authority, fifty years instead of sixty. I think the rule ought to remain as it is, and that it would be dangerous to make any alteration." (See Whart. Conv. 498 and notes.)

In this country a less period than in England, of uninterrupted possession and enjoyment of land, will afford the requisite evidence of ownership. In most, if not all the states, grants have been very freely presumed upon proof of an adverse, exclusive and uninterrupted enjoyment of twenty years; it being the policy of courts of law to limit the presumption to periods analogous to those of the statute of limitations, in all cases where the statutes do not apply. (2 Greenl. Ev. § 539.)

But this branch of the subject will be resumed under a subsequent head, and need not be further noticed in this place.

It remains to consider the modes of acquiring a title to real property. These are two: by descent and purchase. In the former the title is vested in a person by the operation of law, and the latter by the act and agreement of the party. (Co. Litt. 18 b.) This distribution is sufficient for all practical purposes, though as a definition, it is open to criticism. (Hargrave's note 106 to Co. Litt. 18 b.)

CHAPTER II.

OF TITLE BY DESCENT.

Having shown in the preceding chapter, the nature of title to things real, and that the modes of acquiring it might be substantially reduced to two, we propose now to consider that species of title which is derived by descent.

Descent is the title whereby a person, on the death of his ancestor, acquires his estate as his heir at law. The heir therefore is the person upon whom the law casts the estate immediately on the death of the ancestor.

The English law of descents is derived, it is said, from feudal principles, and differs essentially from the Roman law of succession. It contains a number of rules, or canons, which if they were ever in force in this state, have been greatly modified, and in some instances repealed. The rules of deseent in this state depend mainly on our statute, which adopts only such parts of the common law as it does not repeal. (1 R. S. 750.)

The law of descent has reference only to real estate, and not to personal. The former, if not disposed of by devise, descends to the heirs; the latter vests at the death of the owner, in his personal representatives. If not bequeathed by will, it is to be distributed among the next of kin of the last possessor, according to the statute of distributions. The next of kin may be the same persons as the heirs at law, and may embrace some persons who would not take by descent.

Not only every thing which falls under the denomination of real estate descends to the heirs, but also heir looms, and all such other chattels as are annexed to or connected with the freehold ; as wainscots, benches, doors, windows, charters, deeds and other evidences of the title, together with the chests and boxes in which they are contained. Enough has been said on this subject in a former chapter. (See ante, Part 1, ch. 2.)

Trees, whether timber trees or not, if standing on the land at the death of the ancestor, together with the grass annually growing, though ripe for cutting, descend with the land to the heirs. But such vegetables and growing crops as are produced annually by labor and cultivation, such as potatoes, corn and the like, go to the personal representa