1911 Encyclopædia Britannica/Possession (law)

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POSSESSION (Lat. possession, passidere, to possess), in law, a term derived from Roman law. The Roman conception of possession has been generally adopted, but not the Roman deductions from the conception. The subject of possession has become more difficult owing to the various senses in which the term has been interpreted. Thus it has been said to be either a right or a fact conferring a right, or both together. The latter is the view of Savigny, the leading authority upon the subject (Recht des Besitzes, translated by Sir Erskine Perry, 1848). Further, there is a want of agreement among legal writers as to the amount of right or rights that it confers. All that can be said with safety is that possession stands in a position intermediate between simple detention and absolute ownership, and that it implies two elements, physical detention and mental intention to hold the thing possessed as one's own. These difficulties being borne in mind, the definition of W. A. Hunter may be accepted: “ Possession is the occupation of anything with the intention of exercising the rights of ownership in respect of it ” (Roman Law, p. 20Q).Y Possession is inchoate or incomplete ownership; it is on its way to become ownership. In the case of the public domain of Rome (ager pnblicns) the possession was really the important matter, the domininm being practically of no value. Possession in Roman law was either natural or civil. The former was mere occupation, the latter such occupation as ripened by prescription into ownership. Possession exclusive against the world (including the true owner) was called “ adverse possession.” A servitude, such as a right of way, could not be held in true possession, but was said to be in “ quasi-possession.” The quasi-possessor, however, had possessor remedies. In Roman law a broad distinction was drawn between possession and ownership (domininm).1 They were protected by different remedies-possession by interdict, ownership by action. This difference can only be explained by history. Here again, unfortunately, authorities differ. According to Savigny, a Roman citizen who had become a tenant of part of the ager publicus could not by any length of holding obtain more than a quasi-ownership, but one of which it would have been morally unjust to have deprived him. “The only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the possessor interdicts, summary processes of Roman law which were either expressly devised by 1 The distinction is very important, as it affects the contract of sale. The contract was I'lOt to transfer ownership, as in English law, but only vacua passessio.

the praetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right ” (Maine, Ancient Law, ch. viii.). Savigny regards the protection of possession as an extension of the protection of the person. The same view was taken by the English court of exchequer in Rogers v. Spence, 13 M. & W. R. p. 581. According to Hunter (Roman Law, pp. 206, 221), Savigny overlooked the needs of aliens. It was the needs of aliens, incapable of the full proprietary rights of Roman citizens, that led to the invention by the praetor of a means of giving them equitable rights in the land, and protecting them in the enjoyment of these rights. Savigny attributes only two rights to possession in Roman law-acquisition of ownership by possession for a given time (nsncapio, longi temporis possession) and protection of possession from disturbance (interdiclum). Others have included further rights-inter alia, the right to use force in defence of possession, and the right to have the burden of proof, in a contest as to the title, thrown upon the adversary: “In pari causa possessor potior haberi debet.” The position of the possessor in Roman law was very strong. If a bona fide possessor, he could bring an action for fnrtum even against the owner, if a mala jide possessor of land, he was so far protected that he could not be ejected by force." A mala jide possessor of movables could, however, acquire no rights.”

It has been already stated that there is both a physical and a mental element in the conception of possession. This does not necessarily mean that corporal contact is in all cases requisite, or that the intention to hold the thing possessed as one's own may not be abandoned for a time. The control may be potential as well as actual. An estate may be possessed without the possessor going upon the land at all, and the possession of goods may be given by delivering the key of the warehouse in which they are stored. In international law the possession of part as giving a title to the whole has been of great importance (see INTERNATIONAL LAW). Where goods are pledged or bailed for a specific purpose the intention of the pledgor or bailor to hold them as his own is suspended during the existence of the limited right of the pledgee or bailee, to whom a fragment of the possession has passed. In Roman law the pledgor had possession ad nsncapionem, the pledgee possession ad inlefdicta. The possession of the pledgee or bailee has been called “ derivative possession.” Possession may be exercised through another (“ animo nostro, corpore alieno ”), as through a servant, who has not true possession? Possession so exercised has been called “ representative possession.” As soon as the representative determines to assume control on his own behalf or to submit to the control of another, the possession of the principal is gone. Possession may be transferred or lostf It is lost when either the corpus or the aniinns (to use the terms of Roman law) ceases to exist. It may be lost by the representatives in cases where the principal might have lost it. In both Roman and English law the possessor tended to supersede the proprietary remedies from their greater convenience-that is to say, the plaintiff based his claim or the defendant his right upon possession rather than property. The English possessor action may have been directly suggested by the interdict. Bracton (rogb) identifies the assise of novel disseisin, the most common form of possessor action, with the interdict nnde vi. In England ejectment had practically superseded other real actions before the latter were (with the exception of dower, writ of dower and, qnare impedit) expressly abolished by the Real Property Limitation Act 1833, s. 36. The action for the recovery of land, introduced by the Tudicature Acts, is the modern representative of the action of ejectment. 2 This does not agree with English law, where in certain cases a ahief ian giye a good title to stolen goods, though he has no title imse

3 Much of the law of master and servant is based upon the Roman law of master and slave. The servant, like the slave, has not possession of his master's goods even though they are in his custody, unless, indeed, the circumstances are such that he ceases to be a servant and becomes a bailee.

The right of a party to recover possession is enforced by a writ of possession.

Possession gives in English law, speaking generally, much the same rights as in Roman law. Thus it serves to found a title (see Limitation, Statues of; Prescription), and to throw the onus of proof upon the claimant. In an action for the recovery of land the defendant need only allege that he is in possession by himself or by his tenant, and (where such an allegation is necessary) that he had no notice to quit. The chief differences between Roman and English law, arising to some extent from the differences in the history of the two systems, are that the former did not give to derivative possessors (except in the case of pledge) the remedies of possessors, as does English law, and that Roman law is stricter than English in requiring that possession to found usucapio should (except in the case of jus aquae ducendae) be exjusto titulo, or under colour of right (see Prescription). There is one case of constructive possession which is peculiar to English law—that is, where possession is said to be given by a deed operating under the Statute of Uses (see “Orme's Case,” L. R. 8, C. P. p. 281).

In English law the doctrine of possession becomes practically important in the following cases. (1) Possession serves as a convenient means of division of estates (see Real Property). One of the divisions of estates is into estates in possession and estates in reversion or remainder. It also serves as a division of personal property (q.v.). A close in action is said to be reduced into possession when the right of recovery by legal proceedings has become a right of enjoyment. (2) Possession gives a title against a wrongdoer. In the case of real property it is regarded as prima facie evidence of seisin.[1] In the case of personal property the mere possession of a finder is sufficient to enable him to maintain an action of trover against one who deprives him of the chattel[2] (see the leading case of Armory v. Delamirie, 1 Str. 504). (3) What is called “unity of possession” is one of the means whereby an easement is extinguished. Thus the owner of close A may have had a right of way over close B, while the latter belonged to a different owner. If the two closes come to be owned by the same person, the right of way is extinguished, but may under certain circumstances revive on the separation of the ownership. (4) Possession is very important as an element in determining the title to goods under 13 Eliz. c. 5, the Bills of Sale Act 1878 and the Bankruptcy Acts 1883 to 1890. It may be said that as a general rule retention of possession by the transferor or an absolute assignment or a colourable delivery of possession to the transferee is strong prima facie evidence of fraud. (5) Possession of goods or documents of title to goods is generally sufficient to enable agents and others to give a good title under the Factors' Acts (see Factor). (6) In criminal law the question of possession is important in founding the distinction between larceny and embezzlement. If the goods are in the possession of the master and he gives them to the custody of his servant for a specific purpose and the servant steals them, it is larceny; if they have never come into the master's possession, as if a clerk receives money on his master's behalf, it is embezzlement. Recent possession of stolen goods is always regarded as a presumption that the person in whose possession they are stole them or received them knowing them to have been stolen. In the case of a charge of receiving stolen goods evidence may be given that there was found in the possession of the accused other property stolen within the preceding period of twelve months, 34 & 35 Vict. c. 112, s. 19. (For possession in criminal law, see Stephen, Digest of the Criminal Law, note xi.) (7) Actions of possession of ships fall within the jurisdiction of the admiralty division. This jurisdiction in the case of British vessels depends upon the Admiralty Court Act 1861 (24 Vict. c. 10, s. 8), in the case of foreign vessels (in which the jurisdiction is rarely exercised) upon the general powers of the court as a maritime court.

The doctrines of adverse possession (in the old English sense, which was not identical with the Roman law, for the real owner must have actually or by fiction been disseised) and of possession fratris are now of only antiquarian interest. The Statutes of Limitation have superseded the first. The only question now is, not whether possession has been adverse or not, but whether twelve years have elapsed since the right accrued. The maxim “possessio fratris de feodo simplici sororem facit esse haeredem” (Coke upon Littleton, 14b) has been altered by the rule of descent introduced by the Inheritance Act 1833, under which descent is traced from the purchaser. At one time possessor suits were occasionally maintained in England, and more frequently in Ireland, for the quieting of possession after proof of three years' possession before the filing of the bill. But such suits are now obsolete (see Neill v. Duke of Devonshire, 8 A. C. 146). There was one characteristic case in old English law in which possession was maintained by means of what was called “continual claim,” made yearly in due form, where the person having the right was prevented by force or fear from exercising it (Coke upon Littleton, 253b). Continual claim was abolished by the Real Property Limitation Act 1833, s. 11.

Scotland.—In Scotland possessor actions still exist eo nomine. Actions of molestation, of removing, and of maills (payments) and duties are examples. A possessor judgment is one which entitles a person who has been in possession under a written title for seven years to continue his possession (Watson, Law Dict., s.v. “Possessory Judgment”).

United States.—Here the law in general agrees with that of England. Possessory rights are taxed in some of the states. Louisiana follows Roman law closely. Possession of incorporeal rights (to use the unscientific language of the Code) is called quasipossession, and the division of possession into natural and civil is maintained (Civil Code, ss. 3389–3419).

In addition to the authorities cited may be mentioned Smith, Dict. of Antiquities, s.v. “Possessio”; Markby, Elements of Law; Holland, Elements of Jurisprudence; Holmes, The Common Law (lect. vi.); Pollock and Wright, Possession in the Common Law.

(J. W.)
  1. “Seisin” and “possession” are used sometimes as synonyms, as generally by Bracton; at other times they are distinguished: thus there can be possession of a term of years, but no seisin (Noy, Maxims, p. 2). It seems doubtful, however, how far in English law a tenant for years has true possession, for he is in law only a bailiff or servant of the landlord. But he certainly has possessor remedies, like the quasi-possessor in Roman law.
  2. Compare the Code Napoléon, art. 2279: “En fait de meubles la possession vaut titre.”