possession in the common law - HiddenMysteries Information Central

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of. 1 In a much later case 2 a person entitled as mortgagee to possession of a building went there with two men
and caused the lock of the outer door to be taken off; while one of the men was inside, the other putting on a
new lock with the door half open, and the mortgagee on the doorstep, certain persons who till then had
occupied under the mortgagor came and disputed the possession, and in time ejected the mortgagee. The
House of Lords had no difficulty in holding that the mortgagee had gained possession, though ‘in a rough and
uncourteous way,’ 2 and therefore could not be said to have no reasonable and probable cause for indicting his
ejectors under the statute of forcible entry. As regards personal chattels it is clear that a mortgagee entitled to
possession may acquire possession of them without any specific physical interference with their use and
enjoyment; hence for many years the Bills of Sale Acts contained special definitions and provisions for the
purpose of protecting other creditors and purchasers against the effects of a possession which, though
complete as between the parties, was not apparent to other persons. The Act of 1882 has adopted a different
principle, and the questions of ‘actual,’ ‘apparent,’ and ‘formal’ possession which exercised the Courts for
nearly a generation cannot now arise under a bill of sale given to secure the payment of money.
It is on this principle now before us that Possession in law follows the right to possess where physical
possession is in dispute. 3 And an adverse entry or taking by the person really entitled is conclusively deemed
to be in exercise of his [80] right, since otherwise he might be liable as a trespasser at the suit of a wrongful
holder. 1
On the other hand, a person who enters without title gains possession only so far as his actual control
extends, nor does he acquire it as against the person entitled unless by actual ejection of that person or his
servants, or by facts amounting to acquiescence on the part of that person. A dismissed schoolmaster who,
after giving up possession of the schoolroom, went in again the next day and occupied for eleven days, has
been held not to be in possession. 2
Mortgagees attempting to take possession before any default, and having done acts which would be ample
to complete a rightful entry, have equally been held not to obtain possession. ‘A man who is not entitled to
take possession can obtain possession only of that which he actually lays hold of.’ 3
Again, physical entry by the person entitled has no legal effect if it takes place for a temporary and special
purpose with the licence of the actual occupier. A disseisee does not recover his seisin by going on the land at
the disseisor's invitation, 4 any more than a tenant at will is ousted by his landlord paying him a visit. A case of
this kind from the lately published Year Books of Edward II. is curious enough to deserve quotation on this
point.
‘And the tenant said, in evidence of the seisin, that the father of the plaintiff had leased to him the
tenements for the term of his life, and so he was seised etc. without committing any tort or disseisin. The
plaintiff said that his father died seised of the same tenements in his demesne as of fee, after whose death he
entered as son and heir and was seised until by him disseised. And the Assise came and said that the father of
the plaintiff gave the same [81] tenements which he had in the vill, of which he complains that he is disseised,
to him who answers as tenant, to hold for the whole of his life, except a chamber in which he lay sick, and
after seisin was delivered he gave him the chamber and removed into the hall and there died. The Assise was
asked if when he entered the hall and there died he entered claiming a freehold to himself or if he entered by
sufferance of the tenant: and the Assise said that he entered by sufferance of the tenant, without claiming
anything to himself: wherefore it was adjudged that he [the plaintiff] should take nothing by his writ as to the
land.’ 1
So if I have lent a book to a friend, and being in his house or his chambers take up the book without any
intention of determining the loan, the borrower's possession is not thereby interrupted, but I am using my own
goods, for the time being, as licensee of my own bailee.
[79] 1 8 Ass. 17, pl. 25.
2
Lows v. Telford, 1876, 1 App. Ca. 414, per Lord Cairns at p. 419.
3
See the authorities quoted p. 24 above.
[80] 1 Plowd. 92 b, Co. Litt. 245 b.
2
Browne v. Dawson, 1840, 12 A.&E. 624, 13 L.J.Q.B. 7. It is not a necessary consequence that an intruder in this position could not maintain trespass against a mere
stranger.
3
Ex parte Fletcher, 1877, 5 Ch. Div. 809; Mellish L.J. at p. 813.
4
Panel v. Moore (the Parson of Honeylane's case), Plowd. 91 b.
[81] 1 Y. B. 11 & 12 Ed. 3, ed. Horwood and Pike, 1883, pp. 46-47.