possession in the common law - HiddenMysteries Information Central

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Not only is existing possession protected against interference at the hands of a mere intruder, but in an
action for wrong to the possession the intruder cannot be heard to say that any third person to whose title he is
himself a stranger has a better title than the actual possessor. An alleged paramount claim of some third
person, however probable or even obvious, is irrelevant unless one can justify under the authority of that
person. 1 This protection however does not extend to a right to possess when separated from actual possession.
6. As against strangers, the right founded on possession has the incidents of ownership and is transmissible
according to the nature of the subject-matter: we may say compendiously that Possession is a root of title.
It might be held that the right to possess as against the world at large is attached only to actual possession,
and that where a person is in possession without acknowledgment of [23] the true title, and acting as owner,
his apparent title cannot be continued by transfer or devolution, but, unless and until the true owner
intervenes, there can be only successive occupations under which no one who has not actually obtained
possession can acquire any right. But when possession is conceived as a substantive right in the nature of
property, valid against all merely extraneous intrusion, there is no reason for not holding it to be capable of
the same kinds of transfer and devolution as property itself. And it would be manifestly inconvenient to leave
property to be scrambled for in the absence or indifference of the true owner. Accordingly it is held that a
possessor acting as owner has not only a personal interest, but a title which is effective against all outsiders,
and enures to the benefit of all who may hereafter he able to show a title derived from it by any form of
bequest, devolution, or conveyance, appropriate to the nature of the subject-matter. 1
Moreover, as possession originally without right may be converted into full ownership by lapse of time, so
a continuous title derived from such possession will become absolute whenever the time has elapsed which is
required in the particular ease for the final extinguishment of the former owner’s claim. In other words, the
final operation of statutory or other prescription is not necessarily for the benefit of the actual possessor for
the time being. If B., having occupied Whiteacre without title for ten years, dies intestate leaving N. his heir,
and C. then enters and occupies for other ten years, it seems that when the right of A. the true owner is
extinguished by force of the Statute of Limitation the person who becomes entitled will be, not C. the actual
possessor, but N. For B., though he had no title as against A., had from the commencement of his occupation a
good title against anyone not [24] claiming through A. If C. had been turned out by D., C. would in the same
way have a relatively good title as against D. The effects of possession in itself, prior to and apart from the
transfer of ownership by prescription, must be carefully distinguished from the conditions and incidents of
such transfer, though the provisional guarding of possession and the final change of property are instruments
of the same policy of the law.
7. Where possession in fact is undetermined, possession in law follows the right to possess.
We may also say more shortly, when the limited scope of the proposition is rightly understood, that
Possession follows title. The rule was enunciated forty years ago by Maule J. in the following dictum:–
‘It seems to me that, as soon as a person is entitled to possession, and enters in the assertion of that
possession, or, which is exactly the same thing, any other person enters by the command of that lawful owner
so entitled to possession, the law immediately vests the actual possession in the person who has so entered. If
there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of
the right of possession, and if the question is which of those two is in actual possession, I answer, the person
who has the title is in actual possession, and the other person is a trespasser.’ 1
It had already been said by Littleton that ‘where two be in one house or other tenements together to claim
the said lands and tenements, and the one claimeth by one title, and the other by another title, the law shall
adjudge him in possession that hath right to have the possession of the same tenements.’ 2
This rule does not often occur in a simple-application such as that which Maule J. put for illustration’s
sake; at least not [25] in modern times; still it is a material element in the doctrine of possession as a whole. It
seems to be applicable not only where one of the contending parties has an absolutely good right to possess,
[22] 1 Nevertheless a plaintiff in an action founded on right to possess, whose case would be good if he relied on bis own possession, may spoil it if he shows the badness of
his own title by setting out the previous history: Doe v. Barnard, 1849, 13 Q.B.945; 18 L.J.Q.B. 306; see per MelIor J. in Asher v. Whitlock, L.R. 1 Q.B. at p. 6.
[23] 1 Asher v. Whitlock, 1865, L.R. 1 Q.B. 1; Doe d. Smith v. Webber, 1834, 1 A.&E. 119. Note that Dixon v. Gayfere (1853), 17 Beav. 421, is quite consistent with these
decisions; only a dictum at p. 430 is otherwise. The account of it given In argument, L.R. 1 Q.B. at p. 4, is inaccurate. Cp. O. W. Holmes, The Common Law, p. 238.
[24] 1 Jones v. Chapman (1847). 2 Ex. at p.821. And see Lord Blackburn’s remarks in Bristow v. Cormican (1878), 3 App. Ca. at p. 661.
2 Litt. s. 701, and to the same effect Newton, 19 H. VI. 28 b, and Perkins, § 218.