Odger's English Common Law

OWNERSHIP. 19
by a grant to him "and his heirs," or to him "in fee
simple." 2 On his death it descends to his heir, unless he
has sold it or willed it away. An estate in tail is an
anomalous species of limited ownership. It arises where
an owner in fee simple grants the land "to A. and the heirs
of his body ; " sometimes to " the heirs male " or " the heirs
female " of his body. This estate lasts so long only as there
are lineal descendants of A. of the specified kind in existence.
But—strange to say—A., or any descendant of his who is in
possession of the estate tail, is permitted to convert it into
an estate in fee simple, and can then sell it away from his
children. This is called " barring the entail."
Ownership is something quite distinct from possession.
Ownership is a question of title, a matter of law ; possession
is a matter of physical fact, as obvious to a layman as to a
lawyer. A man is in possession of land or of a thing when-
ever he has full and uncontrolled physical dominion over it,
whether such possession be in law rightful or wrongful,
whether it commenced yesterday or twenty years ago. Thus,
he is in possession of a house when he or his servants are
living in it ; if he or they are absent from it, he would still
be in possession if such absence was only temporary, and if
he could return and re-enter at any moment without ask-
ing any one's leave and without any preliminary ceremony.
But as soon as any one else enters into and remains on
the premises, the former possessor is ousted ; for two persons
cannot be in possession of the same property at the same
time, unless they be partners or co-owners. A servant,
however, is not deemed to be in possession of the things
which" he holds and uses on behalf of his master; he has
merely the custody of them ; his master has the possession. 2
Prima facie an owner is always entitled to possession of
his property ; he may take possession of it wherever he finds
it, so long as he can do so peaceably. 3 But it may be that
i See In re Ethel, [1901] 1 Ch. 945.
2 It will be noticed that possession in English law differs greatly from the
Roman possessio ; it includes indeed many cases which Roman lawyers would have
classed under the head of detentio.
8 See Self-Help, post, pp. 961—a 70.
2—2