Page:Popular Science Monthly Volume 44.djvu/824

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8o6 TRE POPULAR SCIENCE MONTHLY.

If re-entry was not made within the time limited by law, the right to make it became derelict and was extinct ; but there still remained the right of recovery by action at law. These actions and their procedure, and the amount of proof exacted, varied ac- cording to the length of time the intruder had remained in pos- session, whether and how many times the possession had been sold or transferred by or under the intruder, and so forth. Into their details it would be unprofitable to go. One who had simply a right to recover lands by action was not only destitute of any- thing transmissible to his heirs or to a purchaser, but had nothing which could be reached by an act of attainder. It is a noteworthy fact in this connection that our common law has never provided, either as to real or personal property, any form of action for liti- gating title or right of property independently of possession a curious circumstance, unmistakably attesting that our legal reme- dies took form before the conception of property as distinct from possession had received practical recognition in our law.

It was, however, indirectly through its bearing upon modes of conveyance that the primitive view of property right made its deepest impression upon our law. It is manifest that when men dealt in possession only, there could not be two opinions as to the mode of effecting a sale or transfer of it. The only conceivable way was for the purchaser to take the seller's place as actual cus- todian ; hence the universal prevalence in early societies of this mode of conveyance. Even when the theory was well advanced that the possessor of an object had an interest or estate in it, or a title to it, such interests were regarded as inherent in the posses- sion and as inseparable from it, and therefore as passing with it and as being otherwise intransmissible. How, then, could such rights be transferred except by the manual delivery of the object ? Even though there were a deed or a written or oral contract, its only function was to evidence an intent to abandon the possession in favor of another, and it was still only through the assumption of the actual possession by such other that he succeeded to the advantages resigned by the maker of the deed.

It is possible, but not certain, that during the later Anglo- Saxon period of our history this mode of conveyance had already been outgrown, and that property was then transferred by deed or charter alone, perhaps by reason of contact with Roman civili- zation. Be this as it may, the original mode of conveyance was, as a feature of the feudal law, so effectually resumed or continued upon the advent of the Normans that, except by means of judicial proceedings, real or feigned, the common law of England has never provided any other mode of directly transferring the entire estate in land than the solemn and public delivery of possession in the presence of the assembled neighbors, known in legal phrase

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