property of lands. In the Roman law plenum dominium was not ſaid to ſubſiſt, unleſs where a man hath both the right, and the corporal poſſeſſion; which poſſeſſion could not be acquired without both an actual intention to poſſeſs, and an actual ſeiſin, or entry into the premiſes, or part of them in the name of the whole[1]. And even in eccleſiaſtical promotions, where the freehold paſſes to the perſon promoted, corporal poſſeſſion is required at this day, to veſt the property completely in the new proprietor; who, according to the diſtinction of the canoniſts[2], acquires the jus ad rem, or inchoate and imperfect right, by nomination and inſtitution; but not the jus in re, or complete and full right, unleſs by corporal poſſeſſion. Therefore in dignities poſſeſſion is given by inſtallment; in rectories and vicarages by induction, without which no temporal rights accrue to the miniſter, though every eccleſiaſtical power is veſted in him by inſtitution. So alſo even in deſcents of lands, by our law, which are caſt on the heir by act of the law itſelf, the heir has not plenum dominium, or full and complete ownerſhip, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir ſhall not be intitled to take the poſſeſſion, but the heir of the perſon who was laſt actually ſeiſed[3]. It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; ſo as to tranſmit the inheritance to his own heirs: non jus, ſed ſeiſina, facit ſtipitem[4].
Yet, the corporal tradition of lands being ſometimes inconvenient, a ſymbolical delivery of poſſeſſion was in many caſes antiently allowed; by transferring ſomething near at hand, in the preſence of credible witneſſes, which by agreement ſhould ſerve to repreſent the very thing deſigned to be conveyed; and an oc-
- ↑ Nam apiſcimur poſſeſſionem corpore et animo: neque per ſe corpore; neque per ſe animo. Non autem ita accipiendum eſt, ut qui fundum poſſidere velit, omnes glebas circumambulet; ſed ſufficit quamlibet partem ejus fundi introire. (Ff. 41. 2. 3.) And again: traditionibus dominia rerum, non nudis pactis, transferuntur. (Cod. 2. 3. 20.)
- ↑ Decretal. l. 3. t. 4. c. 40.
- ↑ See pag. 209. 227, 228.
- ↑ Flet. l. 6. c. 2. §. 2.
