possession in the common law - HiddenMysteries Information Central

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with it in ways which were not, and were not intended to be, appropriate for the creation or manifestation of
titles good against all the world. But the Statute of Uses expressly said that persons having ‘any such use
confidence or trust in fee simple fee tail for term of life or for years or otherwise’ should be ‘deemed and
adjudged in lawful seisin estate and possession.’ It also expressly extended to the limitation of rents by way of
use. 1 The statutory seisin thus created could be dealt with just like the various and flexible interests, formerly
having a merely equitable existence, to which it was thenceforth attached. Early in the eighteenth century the
attornment of the tenant (freeholder or termor) was dispensed with in grants of manors, rents, and estates in
reversion or remainder. 2 On the whole the result (omitting intermediate steps in the history and details which
are not to our purpose) is that in modern practice both the seisin of freeholders and the possession of termors
is almost always statutory. Of the various ways in which livery or seisin has been and can be dispensed with,
the only one now commonly practised and found in operation [56] is a grant under 8 & 9 Vict. c. 109, 1 a
statute which, by a stroke of bold simplicity, assimilated corporeal to incorporeal hereditaments, and made
explicit the implicit abrogation of older ideas and practice which had been going on for three centuries. A
lessee for years or for any chattel interest acquires possession without entry by the terms of the Statute of
Uses, unless the lease be made without any consideration sufficient to raise a use.
Nevertheless the possession created or ‘executed’ by the Statute of Uses was not allowed to have the same
effect in all respects as the possession recognized by the old law. Herein the divergence between seisin of the
freehold and possession for a less interest was marked by a further and logically inexplicable distinction. ‘It
has been held that the statute did not give such a possession as to enable the grantee to maintain trespass at the
common law: Geary v. Bearcroft, 2 but it has been held that he might maintain an assize: Anonymous 3 .’ 4 The
action of trespass was dealt with as founded on possession in fact as well as in law, so that actual entry was
still required before it was available for the tenant. 5
It sometimes happens that waste land allotted under inclosure Acts is not in fact inc1osed or otherwise
occupied in pursuance of the Act or award. In such cases it would seem that a trespasser who did not claim
possession could not be sued.
A servant or bailiff, or any person occupying land or buildings in a merely ministerial character, does not
acquire possession. And it makes no difference that he may carry on a business of his own at the same place. 6
[57]In copy holds it is familiar law that the copyholder has both possession and a right to possess according
to the customary title. He is said indeed to have seisin ‘as of freehold,’ though only in a qualified sense
consistent with the lord remaining seised of the freehold itself. 1 Thus in the same parcel of land there may be,
and often are, the common-law seisin of the lord, the customary seisin of the copyholder, and the possession
of a tenant for years to whom the copyholder has demised. We find in copyholds customary modes of transfer
which are evidently of great antiquity, and represent bodies of usage from which the livery of seisin known in
our classical authorities, and by them confined to the transfer of estates of freehold, is almost certainly
descended.
On the other hand, there are local customs of conveying even freehold lands of burgage tenure without
livery, by bargain and sale enrolled by a local officer, or sometimes, it has been alleged, merely by deed. 2 The
general historical or theoretical conclusions, if any, to be drawn from the occurrence of such customs could be
settled only by minute investigation.
§ 5. Delivery: as to Goods.
Possession of goods may be delivered in several ways according to the circumstances. Delivery may be made
either to the person who is to acquire possession, or to a servant on his behalf. And it may be made in either
case either by an actual and apparent change in the custody of the goods, or by a change in the character of a
[55] 1 27 H. VIII. c. 10. ss. 1, 3
2
4 & 5 Ann. c. 3 [al. 16]. s. 9.
[56] 1 By the same statute a feoffment must be evidenced by deed. Writing was first required by the Statute of Frauds.
2
Carter, 57, 66.
3
Cro. Eliz. 46. But this note of ‘the opinion of divers justices’ makes no distinction: it says, ‘Nota, that cestuy que use, at this day, is immediately and actually seised and in
possession of the land; so as he may have an assise or trespass before entry against any stranger who enters without title.’
4
Hadfield's ca., 1873, L.R. 8 C.P. 306, 317.
5
Wheeler v. Montefiore, 1841, 2 Q.B. 133, 142; Harrison v. Blackburn, 1864, 17 C.B.N.S. 678, 691.
6
White v. Bailey, 1861, 10 C. B. N. S. 227, 30 L. J. C. P. 253.
[57] 1 P. 49, above.
2
Busher, app., Thompson, res., 1846, 4 C.B. 48. The validity of the custom was not in issue, but see per Maule J. at p. 56, and cp. his judgment.