Thus understood, there could not have been a succession between a person dispossessed of a thing against his will and the wrongful possessor.Without the element of consent there is no room for the analogy just explained.Accordingly, it is laid down that there is no joinder of times when the possession is wrongful, and the only enumerated means of succeeding in rem are by will, sale, gift, or some other right.
The argument now returns to the English law, fortified with some general conclusions.It has been shown that in both the systems from whose union our law arose the rules governing conveyance, or the transfer of specific objects between living persons, were deeply affected by notions drawn from inheritance.It had been shown previously that in England the principles of inheritance applied directly to the singular succession of the heir to a specific fee, as well as to the universal succession of the executor.It would be remarkable, considering their history, if the same principles had not affected other singular successions also.It will soon appear that they have.And not to be too careful about the order of proof, I will first take up the joinder of times in prescription, as that has just been so fully discussed.The English law of the subject is found on examination to be the same as the Roman in extent, reason, and expression.It is indeed largely copied from that source.For servitudes, such as rights of way, light, and the like, form the chief class of prescriptive rights, and our law of servitudes is mainly Roman.
Prescriptions, it is said, "are properly personal, and therefore are always alleged in the person of him who prescribes, viz.that he and all those whose estate he hath, &c.; therefore, a bishop or a parson may prescribe,...for there is a perpetual estate, and a perpetual succession and the successor hath the very same estate which his predecessor had, for that continues, though the person alters, like the case of the ancestor and the heir." So in a modern case, where by statute twenty years' dispossession extinguished the owner's title, the Court of Queen's Bench said that probably the right would be transferred to the possessor "if the same person, or several persons, claiming one from the other by descent, will or conveyance, had been in possession for the twenty years." "But....such twenty years' possession must be either by the same person, or several persons claiming one from the other, which is not the case here." In a word, it is equally clear that the continuous possession of privies in title, or, in Roman phrase, successors, has all the effect of the continuous possession of one, and that such an effect is not attributed to the continuous possession of different persons who are not in the same chain of title.One who dispossesses another of land cannot add the time during which his disseisee has used a way to the period of his own use, while one who purchased can. The authorities which have been quoted make it plain that the English law proceeds on the same theory as the Roman.One who buys land of another gets the very same estate which his seller had.He is in of the same fee, or hereditas, which means, as Ihave shown, that he sustains the same persona.On the other hand, one who wrongfully dispossesses another,--a disseisor,--gets a different estate, is in of a new fee, although the land is the same; and much technical reasoning is based upon this doctrine.
In the matter of prescription, therefore, buyer and seller were identified, like heir and ancestor.But the question
remains whether this identification bore fruit in other parts of the law also, or whether it was confined to one particular branch, where the Roman law was grafted upon the English stock.
There can be no doubt which answer is most probable, but it cannot be proved without difficulty.As has been said, the heir ceased to be the general representative of his ancestor at an early date.And the extent to which even he was identified came to be a matter of discussion.Common sense kept control over fiction here as elsewhere in the common law.But there can be no doubt that in matters directly concerning the estate the identification of heir and ancestor has continued to the present day; and as an estate in fee simple has been shown to be a distinct persona, we should expect to find a similar identification of buyer and seller in this part of the law, if anywhere.
Where the land was devised by will, the analogy applied with peculiar ease.For although there is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed, the dramatic resemblance of a devisee to an heir is stronger than that of a grantee.It will be remembered that one of the Roman jurists said that a legatarius (legatee or devisee)was in a certain sense quasi heres.The English courts have occasionally used similar expressions.In a case where a testator owned a rent, and divided it by will among his sons, and then one of the sons brought debt for his part, two of the judges, while admitting that the testator could not have divided the tenant's liability by a grant or deed in his lifetime, thought that it was otherwise with regard to a division by will.Their reasoning was that "the devise is quasi an act of law, which shall inure without attornment, and shall make a sufficient privity, and so it may well be apportioned by this means." So it was said by Lord Ellenborough, in a case where a lessor and his heirs were entitled to terminate a lease on notice, that a devisee of the land as heres factus would be understood to have the same right.
But wills of land were only exceptionally allowed by custom until the reign of Henry VIII., and as the main doctrines of conveyancing had been settled long before that time, we must look further back and to other sources for their explanation.We shall find it in the history of warranty.This, and the modern law of covenants running with the land, will be treated in the next Lecture.
