possession in the common law - HiddenMysteries Information Central

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possession must create a title which, as against all subsequent intruders, has all the incidents and advantages
of a true title. William is the possessor and apparent owner of a house; in that house he dies; we will suppose
him to die intestate. John, wrongly supposing himself to be entitled as the heir of William, enters and occupies
the house. Peter is really William’s heir, but ignorant of the facts; in course of time, having obtained [96]
information and advice, he sues John. It turns out that William had disseised Giles the true owner, by mere
encroachment or in some other way, and would have had no answer to an action brought by Giles or his
assigns to recover the land. But since William’s death the period of limitation has expired, and the right of
Giles is extinguished. Can John use this as a defence against Peter? No, for the statute has nothing to say, for
better or worse, about the person in actual possession, or the relative worth of the qualified rights to possess
which may have arisen while time was running against the true owner. It says that Giles, and those who have
or would have had his estate, shall not from henceforth sue anyone, it does not say that Peter shall not sue
John. Whether some one else has a higher title or not, Peter has a better title than John, as he would have had
though the true owner’s claim were still enforceable. In the language of the modern authorities, ‘possession is
good title’ – nothing less – ‘against all but the true owner.’ 1
As to the substance of those authorities, it has been repeatedly held in cases of ejectment, an action where
the right to possess is clearly and solely in issue, that possession even for a short time is a good title against all
subsequent intruders. One year’s possession under a lease has been held to be enough, though the lessor’s title
was not shown. 2 Ten years’ possession has been decisive even against several years’ subsequent possession
under colour of title. 3 And it has been adjudged, expressly on the analogy of the old law, that when a man
occupying without title purports by his will to settle the land so occupied, that settlement is effective as
regards all persons not claiming under the true title, and governs the possessory title (which meanwhile may
be perfected by lapse [97] of time) exactly as it would govern a title good from the first. 1 ‘A person in
peaceable possession of land has, as against every one but the true owner, an interest capable of being
inherited, devised, or conveyed.’ 2
In accordance with these principles, the possession relied on as evidence of title must be continuous in
itself; a claimant cannot tack together successive occupations, however peaceable, which are not conneeted as
of right. And the attempt to do this will even invalidate a claim which might have stood on the relative merits
of the existing possession alone. A man occupied land for several years, but less than the period of limitation,
and died leaving children, and without having disposed of his possessory interest; his widow entered and
occupied for several years; she was ousted by a person claiming under a prior title, which however was barred
by the statute. Thereupon she brought ejectment, but it was held that, as her title was bad on her own showing,
she could not recover, though if she had merely shown her own possession she would have established her
case. 3
A possessor without title agreed with a railway company for the sale of land which he had occupied for a
time short of the period of limitation. He failed, of course, to show a good title; the money was paid into
Court under the Lands Clauses Consolidation Act, and the company executed a deed poll under the same Act
to vest in themselves all the estate and interest of the vendor. After the expiration of the statutory period the
representative of the true owner claimed the purehase-money. Hall V.C. held 4 that the money represented the
actual right and interest of the vendor – ‘a [98] most valuable right and interest which could have been sold in
the market, although he had not yet the full statutory title;’ and that accordingly he and his assigns were the
only persons entitled to it. No question of the title to the land itself was before the Court. It is submitted that
the Statute of Limitation operated to make the possessory title absolute in the railway company no less than it
would have done in favour of the vendor, had he continued in possession. For it is the very case put by the
Court in Doe v. Barnard, where they say: 1 ‘Probably that would be so [i. e. the expiration of the statutory
[96] 1 Asher v. Whitlock, 1865, L.R. 1 Q.B. 1, 6. Cf. Board v. Board, 1873, L.R. 9 Q.B. 48, decided on the ground of estoppel as between persons claiming under a common
root of title.
2
Doe d. Hughee v. Dyeball, 1829, Moo.&M. 346. Cf. Doe d. Pritchard v. Jauncey, 1837,8 C.&P. 99.
3
Doe d. Smith v. Webber, 1834, 1 A.&E. 119.
[97] 1 Asher v. Whitlock, 1865, L.R. 1 Q.B. 1.
2
Markby, arg. ib. at pp. 2, 3. It seems to me that there is not any real authority for allowing a mere wrongdoer to set up an extraneous title paramount against a possessory
title prior to his own entry. The strongest case against the view here taken is Nagle v. Shea, 1874, Ir. Rep. 8 C.L. 224; but the decision was not unanimous, and anyhow it
cannot in an English court outweigh Davidson v. Gent, 1857, 1 H.&N. 744, 26 L.J. Ex. 122.
3
Doe d. Carter v. Barnard, 1849, 13 Q.B. 945, 18 L.J.Q.B. 306; see observations of Mellor J. in Asher v. Whitlock, L.R. 1 Q.B. at p. 6.
4 Ex parte Winder, 1877, 6 Ch. D. 696, 703.
[98] 1 13 Q.B. at p. 952.