possession in the common law - HiddenMysteries Information Central

40
decease of the disseisor, and also after his decease. And the cause is for that such disseisor is not my disseisor
but at my election and will. For albeit he taketh the rent of my tenant etc., yet I may at all times distrain my
tenant for the rent behind, so as it is to me but as if I will suffer the tenant to be so long behind in payment of
the same rent unto me, etc.
‘For the payment of my tenant to another to whom he ought not to pay is no disseisin to me, nor shall oust
me of my rent without my will and election, etc. For although I may have an assize against such pernor, yet
this is at my election, whether I will take him as my disseisor or no. . . . And in this case if after the distress of
him which so wrongfully took the rent I grant by my deed the service to another, and the tenant attorn, this is
good enough.’ 3
There is not a real disseisin because there is no specific thing of which one can be said to be dispossessed;
and this, it will be seen, was as clear to Littleton as it can be to us. It [89] is not the lord’s money that the
tenant has paid to the wrongful claimant, and his duty to the true lord is unaltered. But, in order that the
person wronged might maintain his title by the convenient remedy of the assize of novel disseisin, he was
allowed, if he thought fit, to consider himself disseised; much as at a later period in the history of the law
plaintiffs were allowed to recover damages in the form of an action upon a fictitious promise for many causes
of action which were in fact merely wrongful dealings with property. As the right owner may choose to admit
himself out of possession by bringing an assize, so by making a grant over, on the other hand, he may make ‘a
demonstration of his election that he is in possession.’ 1
The doctrine of disseisin at election, here concisely stated by Littleton in what appears to be its original
form, was in course of time extended to corporeal hereditaments, and, as so extended, introduced great
confusion. Time might run against a true owner out of possession, for the purpose of barring him of his
remedy by action, either from an absolute disseisin, or from some act which not only was capable of being
made a disseisin, but had in fact been made so by the true owner’s election. As such election, however,
generally took the form of an active assertion of title within a short time, the question would hardly arise in
this latter case. On the other hand, an act of ‘disseisin at election,’ if the right owner did not elect to be
disseised, was no disseisin at all, and the de facto possession was said to be ‘non-adverse.’ This distinction
was founded on a principle quite intelligible in itself, namely that a person who is lawfully in possession for a
limited estate or interest cannot change the character of his own possession to the detriment of the true owner.
A tenant for years could not make himself a disseisor for the same reason that a bailee could not make himself
a trespasser by asportation in respect of the subject of the bailment. Even a person entitled to be on the land
by reason of a right of common, and therefore [90] having neither exclusive possession nor right to possess,
has been held not to become a disseisor by claiming title to the soil and forbidding the true freeholder to
exercise acts of ownership. 1
However, the working out of the distinction became, in the hands of lawyers who had forgotten much of
the old law and of its reasons, exceedingly perplexed’ and the doctrine of ‘non-adverse possession’ was
abolished by the modern Statute of Limitation passed in 1833, 2 and, with certain modifications as to the
length of time needful to bar the right owner’s claim, 3 still in force. The result, and doubtless the intended
result, is greatly to diminish the importance of the character in which and the intention with which acts of
apparent ownership are done. 4
In like manner it is unimportant, except in the case of concealed fraud, whether the right owner was or was
not aware of the act of occupation from which time began to run against him. 5 There must of course be a
positive act of occupation to found an adverse title; mere non-user, even occasional or more or less continuing
trespasses, will not do, as we have already seen.
It would be outside the purpose of this work to discuss further the several provisions of these Statutes and
the manner in which they have been judicially expounded. 6 This is a matter of special and minute
3
Litt. ss. 588, 589. Cf. s. 541, and Coke thereon, 306 b.
[89] 1 Co. Litt. 323 b.
[90] 1 26 Ass. pl. 17: apparently the doctrine of disseisin at election was not then recognised.
2
3 & 4 Wm. 4, c. 27.
3
37 & 38 Vict. c. 57.
4
See Lyell v. Kennedy, 1887, 18 Q.B. Div. 796: and conversely, as to the insufficiency of merely formal acts of entry and the like against a continuing adverse possession,
Doe d. Baker v. Coombes, 1850, 9 C.B. 714, 19 L.J.C.P. 306
5 Rains v. Buxton, 1880, 14 Ch. D. 537.
6 See for detailed information and authorities the notes to Taylor d. Atkyns v. Horde, 2 Sm. L.C. 9th ed. 729 sqq.