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his death, have denied that Napoleon had the welfare of the country at heart and considered these words as lacking sincerity. But the work which he accomplished in the reformation and restatement of the laws of France furnishes ample argument to the contrary. These codes which brought order out of chaos and furnished a model for the whole world, remain not merely a monument to him, but a proof of his attachment to what he was fondly wont to call "la grande nation." It is this code that chiefly justifies now the tribute of our American poet, Leonard Heath:

"Spirit immortal, the tomb cannot bind thee,

But like thine own eagle that soars to the sun,
Thou springest from bondage and leavest behind thee
A name which before thee no mortal hath won."

Charles Sumner Lobingier.

UNITED STATES Court,
SHANGHAI, CHINA.

TITLE BY ADVERSE POSSESSION

I

POLICY AND OPERATION OF THE STATUTES OF LIMITATION

ITLE by adverse possession sounds, at first blush, like title by

TITLE

theft or robbery, a primitive method of acquiring land without paying for it. When the novice is told that by the weight of authority not even good faith is a requisite, the doctrine apparently affords an anomalous instance of maturing a wrong into a right contrary to one of the most fundamental axioms of the law.

"For true it is, that neither fraud nor might

Can make a title where there wanteth right.” 1

The policy of statutes of limitation is something not always clearly appreciated. Dean Ames, in contrasting prescription in the civil law with adverse possession in our law, remarks: “English lawyers regard not the merit of the possessor, but the demerit of the one out of possession." 2 It has been suggested, on the other hand, that the policy is to reward those using the land in a way beneficial to the community. This takes too much account of the individual case. The statute has not for its object to reward the diligent trespasser for his wrong nor yet to penalize the negligent and dormant owner for sleeping upon his rights; the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing.1

1 Quoted in Altham's case, 8 Coke Rep. 153, 77 Engl. reprint, 707.

2 LECTURES, LEGAL HIST. 197.

• Axel Teisen III, AM. BAR ASS'N JOURNAL, 127, April, 1917.

That the policy of the statutes of limitation is the quieting of titles evidenced by possession for the sake of the stability of meritorious titles, see M'Iver v. Ragan, 2 Wheat. (U. S.) 25 (1817); Turpin v. Brannon, 3 McCord, L. 261 (1825); North Pac. R. Co. v. Ely, 25 Wash. 384, 65 Pac. 555 (1901), Louisville & N. R. R. Co. v. Smith (Ky.) 125 Ky. 336, 101 S. W. 317 (1907); Humbert v. Trinity Church, 24 Wend. (N. Y.) 587, 609 (1840); Cholmondeley v. Clinton, 2 J. & W. 139, 155, 189 (1820); Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171 (1896); McCann v. Welch, 106 Wis. 142, 148, 81 N. W. 996 (1900); 1 HAYES, CONVEYANCING, 223, 269; Dalton v. Angus, 6 App. Cas. 740, 818 (1881); J. S. MILL, POL. ECON., Book 2, 2; 3 So. L. QUART. 224.

ch. 2,

"The thing to be looked at is the possession of the defendant,-not the want of possession in the plaintiff. A possession which has continued for a long time without interruption, and which has been accompanied by an uninterrupted claim of ownership, ought to prevail against all the world."5

Although in general a tortious act can never be the foundation of a legal or equitable title, yet if the exercise of apparent ownership is made conclusive evidence of title, this wholesale method necessarily establishes and quiets the bad along with the good. The trespasser benefits, the true owner suffers, for the repose of meritorious titles generally. As Sir Frederick Pollock puts it, "It is better to favor some unjust than to vex many just occupiers."

It is one thing to have the rightful ownership and just title to land; it is another thing to have the proof of that right which can be laid before a purchaser or before a jury. Suppose a landowner is ejected from his land and seeks to be reinstated. The deed under which plaintiff acquired title, without evidence of possession by the grantor of the premises conveyed, is not even prima facie proof of title such as to warrant recovery in ejectment. Nor is a connected chain of deeds, which does not reach back to the Government or to some grantor in possession, sufficient, unless it reaches back to some common source of title, or to some source acknowledged to be genuine and valid, or unless there is some estoppel to deny title. The proof of a paper title sufficient to make out a prima facie right to possession of land may, therefore, be exceedingly difficult. It involves proving the signature and delivery of every deed; the corporate existence of every corporation in the chain of title; the execution of all powers of attorney; all the statutory notices and formalities in execution, tax and probate sales; all the descents and probate proceedings; in short, every legal step of the transfer of the title, voluntary and involuntary, simple and complex, from a recognized source down must be shown by proper evidence. In order to give adequate protection to other titles, it has been found necessary to recognize possession as title. It is therefore enough that a plaintiff in ejectment, or that his ancestor

5 LANGDELL, EQUITY PL., § 121.

Terhune v. Porter, 212 Ill. 595, 72 N. E. 820 (1904); Krause v. Nolte, 217 Ill. 298, 75 N. E. 362 (1905); Cottrell v. Pickering, 32 Utah, 62, 88 Pac. 696 (1907). 7 People v. Inman, 197 N. Y. 200, 206, 90 N. E. 438 (1910).

or one of his grantors, was in possession and that this prior possession is vested in the plaintiff by a regular devolution of title. A mere trespasser cannot set up an outstanding title in a third person as a defense where he does not claim under it.8

Upon every sale or mortgage of land it is necessary that the evidence of the title be critically examined. For what period and from what source should the title be deduced? The conveyancer in the United States usually looks for a record title going back to a patent from the United States, the state, or some other government for a clear root of title. In England, evidence of the original royal feoffments or gifts of former centuries was long since lost. The proprietor must go back to the earliest possessor or occupant who can be proved to have held seisin in fee. Except for government grant, possession is thus the ultimate root of all titles. Title deeds are nothing but the history or evidence of the transfer of rights arising from possession, reaching back perhaps to "that mailed marauder, that royal robber," that great adverse possessor,- William the Conqueror. "Every title to land has its root in seisin; the title which has its root in the oldest seisin is the best title." " With the help of statutes of limitation, however, it is now ordinarily sufficient for the English conveyancer to go back forty years for a root of title.

It may be instructive to sketch the history of the statutes by which limitations were placed on ancient seisin as a source of title. The only limitation on a writ of right to recover seisin at common law was lack of evidence. Several early statutes of limitation were passed, of which the Statute of Westminster I, 3 Edward I, c. 39 (1275), is typical. This statute did not purport expressly to bar any remedy or pass any title but merely placed a fixed limit back of which a suitor in a real action could not go for a source of title. It provided that in conveying (tracing) a descent in a writ of right, none shall presume to declare of the seisin of his ancestor further or beyond the beginning of the reign of King Richard I (1189). In other real actions the demandant could not go back so far. The effect, therefore, was that a more recent seisin, though tortious, became a paramount source of title.

* Casey v. Kimmel, 181 Ill. 154, 54 N. E. 905 (1899); Burns v. Curran, 275 Ill. 448, 451, 114 N. E. 166 (1916).

• 2 POLLOCK & MAITLAND, HIST. ENGL. LAW, 46. See Pollock's ed., MAINE, ANCIENT LAW, ch. 8, 267, 295, 314.

The Statute of 32 Henry VIII, c. 2, § 3, limited real actions by providing that if the claimant rested his title on the ground of former seisin by himself, he was limited to a seisin within thirty years before the teste or date of the original writ, as regards both droitural and possessory actions; if on the ground of a seisin by his ancestor, to a seisin within fifty years as regards possessory actions, and within sixty years as regards droitural actions.10 The demandant in a writ of right must allege and prove seisin in his ancestor within sixty years. Hence seisin that could be traced back sixty years became a good root of title." This was for the reason that no older seisin which had been lost could be resorted to.12

Coke says, in his note to Littleton,13

"Limitation, as it is taken in law, is a certaine time prescribed by statute, within which the demandant in the action must prove himselfe or some of his ancestors to be seised."

The limitation of 32 Henry VIII is wholly referable to seisin, the statute requiring a seisin within a certain time according to the nature of the writ. The limitation is dated from the seisin, not from the disseisin. The operation of the older statutes is thus not to bar the action, but to bar the source of title or right to which the more recent tortious seisin could be made to yield.

The Statute 21 Jac. I, c. 16 (1623), adopts the modern method of limiting the right of entry, and so the action of ejectment, to within twenty years next after the right of entry accrues. The right of entry does not accrue until some one initiates an adverse possession.14 The effect of limiting all right of action to recover possession is much the same as that of expressly limiting seisin as a source of title; possession exercised continuously and adversely for a certain time becomes a source of title superior in ejectment to any title derived from an older possession. The Statute of 21 James I, c. 16 (1623), however, did no more than bar or take away the right of entry and ejectment after twenty years, but left open

10 I SPENCE, EQ. JUR. 255; 2 P. & M. HIST. ENG. LAW, 81.

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BLACK. COMM., 189, 196, 197; Dumsday v. Hughes, 3 Bing. N. C. 439, 452

12 I HAYES, CONVEYANCING, 232.

13 COKE ON LITT., § 170, note 115 a.

14 Agency Co. v. Short, 13 A. C. 793 (1888); Norton v. Frederick, 107 Minn. 36, 119 N. W. 492 (1909).

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