pointment be extended for other persons than those for whom it was originally made, will not interrupt the continuity of the possession (s); and (t) the possession, when partly in a receiver of the Court of Chancery and partly in a prior incumbrancer, is not inconsistent with or opposed to the title of a subsequent incumbrancer, so as to affect under that statute his claim (u). Sometimes and for some purposes the possession of Possession of freehold where the owner of the freehold is the possession of the owner possession of of the inheritance. Thus the possession of the widow, the inheritance. tenant for life, of the ancestor is the possession of the heir sufficient to support a possessio fratris in him (v). So the possession of a tenant in tail is the possession of the remainderman, the estate in possession and the estate in remainder being for this purpose but one estate (x). So the possession by the heir of a copyholder before admittance is sufficient to make the collateral heir inheritable (y); but the possession of the tenant for life of the freehold is not the possession of the remainderman so as to enable the latter to maintain a writ of intrusion under the 32 Hen. 8, c. 2, s. 2 (z). aliens. If an alien enter upon lands of a natural born sub- Possession of ject, and hold them for twenty years, the possession will not avail against the rightful owner. For although land can be taken, and, until office found for the Crown, held by an alien (a), and after office found is taken by, and on the death of the alien before office found, vests, without any office, in the Crown (b); yet, with one exception of very recent origin, an alien cannot take by act of law even for the benefit of the Crown (c). The exception is of female aliens married to natural born (8) Groome v. Blake, supra. (t) Savigny on Possession, B. i. s. 12, p. 131, by Perry. (u) See Wrixon v. Vize, 2 Con. & L. 138. (r) Small v. Dale, Hob. 120. (x) Doe d. Lord Teynham v. Webb, 6 Bing. 395. (y) Anon., Dy. 291 a, pl. 69. (a) Co. Litt. 2 b; 5 Co. 52 b; 7 (b) Co. Litt. 2 b; Plowd. 229. Possession of subjects. These aliens, on their marriage, become naturalized and acquire all the rights and privileges of natural born subjects (d). Possession of things corporeal has been much things incorpo- strengthened by the Statutes of Limitation, and espe real strength ened. Possession of advowsons. Enjoyment of prescriptive claims cially by the 3 & 4 Will. 4, c. 27, which, as between subject and subject, has defined and limited the remedies of persons relying upon previous title against possession (e). The only actual seisin or possession of an advowson by the owner is presentation (ƒ); and institution and induction are but as executions of the presentment (g). But the only seisin or possession which enables him to sustain a writ of right of advowson is by the admission, institution and induction of his presentee (h). The enjoyment or quasi possession of claims which may be lawfully made at the common law by custom, strengthened. prescription or grant to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of the Crown, or any land being parcel of the Duchy of Lancaster or of Cornwall, or of any ecclesiastical or lay person or body corporate, and also of claims which may be so made to any way or other easement, or to any watercourse or the use of any water to be enjoyed or derived upon, over or from any such land, and also of the access and use of light to and for any dwelling-house, workshop or other building (i), and also all prescriptions and claims of or for any modus decimandi, or of or to any exemption from or discharge of tithes by composition, real or otherwise (k), has been strengthened and placed upon a more certain and therefore a more sure foundation. Some of these rights (d) 7 & 8 Vict. c. 66, s. 16. (e) See ss. 36, 37, 38; 15 Ir. Law Rep., N. S. (f) See Grendon v. Bishop of Lincoln, Plowd. 493; Watson's Cler. 277; 3 Bulstr. 40. (g) 1 Co. 99 b; 2 Ib. 93. (i) 2 & 3 Will. 4, c. 71. cannot now be defeated by merely showing the origin, and, after certain periods, varying with the nature of these rights, and when not had by some consent or agreement expressly made or given for the purpose in writing, all of them are rendered absolute and indefeasible, as will hereafter appear. Importance of possession. Presumption in favour of; but to defeat, right differ. CHAPTER VI. THE EFFECT OF, AND THE BENEFITS ARISING FROM, THE importance of possession itself, and of maintaining it, has been frequently recognized and strongly urged in our courts of judicature (a). If after a succession of ages and the decease of parties objections to ancient possession, which might have been answered in the lifetime of the parties, and, if well founded, would most probably have been sooner made, were admitted, such possession would injure instead of strengthen a title (b). It has therefore always been the well-established principle of our law to presume everything in favour of long possession; and it is every day's practice to rest upon this foundation the title to the most valuable properties (c). For the purpose, and from a principle, of quieting to support, and possession, presumption is in favour of rights of which persons have been long in possession, although from mere length of time to support, is different when made to defeat, a right (d); and, said Lord Mansfield (e), the Court has thought that a jury should presume anything to support a length of possession. Littledale, J., also said (f)," We ought to make all reasonable presumptions in favour of the existing state of things." Sir T. Plumer, M. R., also said (g), "The first thing the court looks at (a) 2 Inst. 118; supra, Book I. Chap. I., Sect. II. (b) Bedle v. Beard, 12 Co. 4, 5; Cowp. Rep. 110; 8 Ad. & E. 288; 8 Bing. 281. (c) Reg. v. Archdall, 8 Ad. & E. 281. (d) Cowp. 110, 215, 216. (e) Eldridgev. Nott, Cowp. 215. (f) 4 B. & C. 605. (g) Att.-Gen. v. Lord Hotham, Turn. & R. 217. as the criterion of property is usage and enjoyment. Ancient deeds are exceedingly material, if followed up by possession, but if not followed up by possession, and if there has been a long enjoyment and uninterrupted possession in opposition to them, they lose that importance to which they would otherwise be entitled. Very high judges have said they would presume anything in favour of a long enjoyment and uninterrupted possession." Sir J. Romilly, M. R., also said (h), "Undoubtedly when a person or corporation is found possessed of, and in the enjoyment of, a right, the origin of which is not ascertained, the court will protect the possessor in the enjoyment of that right, and will presume anything, including, in some cases, even an act of parliament, that may be necessary for that purpose. Again (i), where the origin of a right is lost in obscurity, the court will presume, from the uniformity of the use, that it is in accordance with the original right, and will presume whatever may be necessary to give it validity." Lord Curriehill also said (k), "Possession which has existed from time immemorial, and of the commencement of which we have no trace, is presumed to go backwards, so as to connect with the titles of a more remote date (7).” . . Another important attribute of such a possession is that it serves as an interpreter of the written title. "From long enjoyment of a privilege," said Lord Wensleydale (m), "every reasonable presumption may be made that it has continued from time immemorial, but where the privilege requires more than immemorial enjoyment in order to be legal and valid, some facts must exist besides mere long enjoyment; there must be some proof of these facts." (h) 17 Beav. 390. (i) Ib. 464. (k) The Lord Advocate v. Sinclair, 3 Scotch Sess. Ca., 3rd series, 994. (1) See also Kyle v. O'Connor, 16 Ir. Ch. Rep. 46. (m) Gann v. The Company of Free Fishers of Whitstable, 35 L. J., N. S., Ch. 29. |