Front Page Titles (by Subject) 67.: JAMES BARR AMES, THE DISSEISIN OF CHATTELS 1 - Select Essays in Anglo-American Legal History, vol. 3
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67.: JAMES BARR AMES, THE DISSEISIN OF CHATTELS 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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THE DISSEISIN OF CHATTELS1
THE readers of “The Seisin of Chattels,” by Professor Maitland, in the “Law Quarterly Review” for July, 1885, were doubtless startled at the outset by the title of that admirable article. But all must have admitted at the end that the title was aptly chosen. The abundant illustrations of the learned author show conclusively that from the days of Glanvil almost to the time of Littleton, “seisin” and “possession” were synonymous terms, and were applied alike to chattels and land. In a word, seisin was not a purely feudal notion.
Is it possible, however, to justify the title of the present article? Is it also a mistake to regard disseisin as a peculiarity of feudalism? History seems to answer these questions in the affirmative. The word “disseisin,” it is true, was rarely used with reference to personalty. Only three illustrations of such use have been found,3 as against the multitude of allusions to seisin of chattels noted by Professor Maitland. In substance, however, the law of disseisin was common to both realty and personalty.
A disseisor of land, it is well known, gains by his tort an estate in fee simple. “If a squatter wrongfully incloses a bit of waste land and builds a hut on it, and lives there, he acquires an estate in fee simple in the land which he has inclosed. He is seised, and the owner of the waste is disseised. . . . He is not a mere tenant at will, nor for years, nor for life, nor in tail; but he has an estate in fee simple. He has seisin of the freehold to him and his heirs.”1 Compare with this the following, from Fitzherbert: “Note if one takes my goods, he is seised now of them as of his own goods, adjudged by the whole court;”2 or Finch’s definition: “Trespass in goods is the wrongful taking of them with pretence of title, and therefore altereth the propertie of those goods.”3 This altering of the property by a trespass is pointedly illustrated by a case from the “Book of Assizes.”4 The plaintiff brought a bill of trespass for carrying off his horse and killing it. “The defendant prayed judgment of the bill, since you have confessed the property to be in us at the time of the killing, and so your bill is repugnant; for by the tortious taking, the property was devested out of you and vested in us, and therefore we could not kill our own horse contra pacem.” The bill was adjudged bad. Furthermore, incredible as it may appear, a disseisin by theft vested the property in the stolen chattel in the thief. John v. Adam5 was a case of replevin in the detinet for sheep. Avowry that the sheep were stolen from the plaintiff by M., who was driving them through the defendant’s hundred; that M., to avoid arrest, fled to the church and abjured the realm, and so the defendant was seised by virtue of his franchise to have the goods of felons. Certain formal objections were taken to the avowry, to which Herle, C. J., answered: “Whatever his avowry be, you shall take nothing; for he has acknowledged that the property was once in you, and afterward in him who stole them; and now he affirms the property in himself, and therefore, although he cannot maintain the property in himself for the reason alleged, still you shall not have the sheep again, for he gives a mesne; namely, the felon in whom the property was.”1 The opinion of this distinguished judge is confirmed by numerous cases in which stolen goods were forfeited by the thief, under the rule of law that gave to the Crown the chattels of felons. The goods, having become by the theft the property of the felon, were forfeited as a matter of course with the rest of his chattels.
These examples are sufficient to bring out the analogy between the tortious taking of chattels and the wrongful ouster from land.2 But in order to appreciate fully the parallel between disseisin of chattels and dissesin of land, we must consider in some detail the position of the disseisor and disseisee in each case.3
The disseised owner of land loses, of course, with the res the power of present enjoyment. But this is not all. He retains, it is true, the right in rem; or, to use the common phrase, he has still a right of entry and a right of action. But by an inveterate rule of our law, a right of entry and a chose in action were strictly personal rights. Neither was assignable. It follows, then, that the disseisee cannot transfer the land. In other words, as long as the disseisin continues, the disseised owner is deprived of the two characteristic features of property,—he has neither the present enjoyment nor the power of alienation.
These conclusions are fully borne out by the authorities. “The common law was,” as we read in Plowden, “that he who was out of possession might not bargain, grant, or let his right or title; and if he had done it, it should have been void.”1 It was not until 1845 that by statute2 the interest of the disseisee of land became transferable. Similar statutes have been enacted in many of our States.3 In a few jurisdictions the same results have been obtained by judicial legislation.4 But in Alabama, Connecticut, Dakota, Florida, Georgia, Kentucky, Massachusetts, New York, North Carolina, Oklahoma, Rhode Island, and Tennessee, and presumably in Maryland and New Jersey, it is still the law that the grantee of a disseisee cannot maintain an action in his own name for the recovery of the land.5
A right of entry and action is now everywhere devisable. But until 1838 in England and 1836 in Massachusetts, a disseisee had nothing that he could dispose of by will.6 . . .
If we turn now from transfers by act of the party to transfers by operation of law, we find that in the one case of bankruptcy there was a true succession to the disseisee’s right to enter or sue. But this was, of course, a statutory transfer.7
There was also a succession sub modo in the case of death. The heir of the disseisee, so long as he continued the persona of the ancestor, stood in his place. But the succession to the right in rem was radically different from the inheritance of the res itself. If the heir inherited the land, he became the feudal owner of it, and therefore at his death it descended to his heir, unless otherwise disposed of by deed or will. On the other hand, if a right of entry or action came to the heir, he did not become the absolute owner of the right. He could not hold a chose in action as tenant in fee simple. The right was his only in his representative capacity. He might, of course, reduce the right in action to possession, and so become feudal owner of the land. But if he died without gaining possession, nothing passed to his heir as such. The latter must be also the heir of the disseisee, and so the new representative of his persona, in order to succeed to the right in rem.1
These two cases of death and bankruptcy were the only ones in which the disseisee’s right was assignable by involuntary transfer. There was, for example, no escheat to the lord, if the disseised tenant died without heirs, or was convicted of felony. This doctrine would seem to have been strictly feudal. Only that could escheat which was capable of being held by a feudal tenure. A chose in action could not be held by such a tenure. Only the land itself could be so held. But the land, after the disseisin, was held by the disseisor. So long as his line survived, there was no “defectus tenentis.” The death of the disseisee without heirs was, therefore, of no more interest to the lord than the death of any stranger.2
The lord was entitled to seize the land of his villein. But if the villein had been disseised before such seizure, the lord could not enter upon the land in the possession of the disseisor, except in the name of the villein, and, after a descent cast, could not enter at all.1 Nor had he any right to bring an action in the name of his villein.2
It is still the law in most of our States, as it was in England before 1833,3 that “if a man seised of land in fee be disseised of the same, and then take a wife and die without re-entering, she shall not have dower.”4
The husband of a woman who was disseised before the marriage may, of course, enter upon the disseisor in his wife’s name, or he may bring an action to recover the land in their joint names; but if the land is not recovered in the one way or the other before his wife’s death, he must suffer for his laches. For the old rule, which denied to the husband curtesy in his wife’s right of entry or action, has not lost its force on either side of the ocean.5 It was applied in New York, to the husband’s detriment, as recently as 1888.6
One more phase of the non-assignability of the disseisee’s right of action is shown by another recent case. It was decided in Rhode Island, in 1879, in accordance with a decision by the King’s Bench, in the time of James I.,7 that a disseised owner of land had nothing that could be taken on execution.8
The position of the disseisor of land is, in most respects, the direct opposite of that of the disseisee. The strength of each is the weakness of the other. The right of the disseisee to recover implies the liability of the disseisor, or his transferee, to lose the land. But so long as the disseisin continues, the disseisor, or his transferee, possesses all the rights incident to the ownership of an estate in fee simple. He has the jus habendi and the jus disponendi. If he is dispossessed by a stranger, he can recover possession by entry or action.1 If he wishes to transfer his estate in whole or in part, he may freely do so. He may sell the land,2 or devise it,3 or lease it.4 His interest is subject also to the rules of involuntary transfer. Accordingly, it may descend to his heir,5 escheat to his lord,6 or be taken on execution,7 and would doubtless pass to his assignee in bankruptcy. The husband of the disseisor has curtesy,8 and the wife dower;9 and a disseisin by a villein must have enured to the benefit of his lord at the latter’s election. [The disseisor may insure the land.10 He may grant a rent charge out of it.11 He has the right of common which his disseisee had.12 He may convey the land upon trust.13 He may transfer it to A for life with remainder to B, and the estate of A and B will be the same, as if the grantor had the absolute fee simple, as to every one except the disseisee, and as to him also after the Statute of Limitations has run.14 If the disseisor creates chattels by severance from his fee simple, the title to these chattels is in him so fully that, so long as the disseisin continues, the disseisee cannot maintain trover, detinue or replevin against him.1 Nor an action for money had and received for the proceeds of the sale of the chattels.2 But these actions are given to the disseisor against the disseisee, if the latter carries off the severed chattels before regaining the seisin.]3
The legal effects of the disseisin of chattels are most vividly seen by looking at the remedies for a wrongful taking. The right of recaption was allowed only flagrante delicto. This meant in Britton’s time the day of the taking. If the owner retook his goods afterwards, he forfeited them for his “usurpation.”4 If the taking was felonious,5 the despoiled owner might bring an appeal of larceny, and, by complying with certain conditions,1 obtain restitution of the stolen chattel. But such was the rigor and hazard of these conditions, that from the middle of the thirteenth century the appeal was largely superseded by the new action of trespass.2 If the taking was not criminal, trespass was for generations the only remedy.3
Trespass, however, was a purely personal action; it sounded only in damages. The wrongful taking of chattels was, therefore, a more effectual disseisin than the ouster from land. The dispossessed owner of land, as we have seen, could always recover possession by an action. Though deprived of the res, he still had a right in rem. The disseisor acquired only a defeasible estate. One whose chattel had been taken from him, on the other hand, having no means of recovering it by action, not only lost the res, but had no right in rem. The disseisor gained by his tort both the possession and the right of possession; in a word, the absolute property in the chattel taken.
What became of the chattel afterwards, therefore, was no concern of the victim of the tort. Accordingly, one need not be surprised at the following charge given by Brian, C. J., and his companions to a jury in 1486: “If one takes my horse vi et armis and gives it to S, or S takes it with force and arms from him who took it from me, in this case S is not a trespasser to me, nor shall I have trespass against him for the horse, because the possession was out of me by the first taking; then he was not a trespasser to me, and if the truth be so, find the defendant not guilty.”1 Brooke adds this gloss, “For the first offender has gained the property by the tort.”2
The complete divestiture of the owner’s property in a chattel by a disseisin explains also a distinction taken in the Year Books, which has proved a stumbling-block to commentators to the present day: “Note by Fineux, C. J., and Tremayle, C. J. If I bail goods to a man and he gives them to a stranger or sells them, if the stranger takes them without livery he is a trespasser, and I shall have a writ of trespass against him; for by the gift or sale the property was not changed but by the taking. But if he delivered them to the vendee or donee, then I shall not have trespass.”3 At this time, although anciently the rule was otherwise, the possession of the bailee at will was treated as the possession of the bailor also. In the first case, therefore, where there was no delivery by the bailee, the stranger by taking the goods disseised the bailor and so was liable to the latter in trespass. But in the other case, where the bailee delivered the goods sold, he was the disseisor. By a single act he gained the absolute property in the goods and transferred it to the vendee, who was thus as fully beyond the reach of the disseisee as the vendee of the disseising trespasser in the earlier case before Brian, C. J. The peculiarity in the case of the bailment lies in the form of the disseisin. But the asportation of a chattel or the ouster from land, although the commonest, were not the only modes of disseisin. Any physical dealing with the chattel under an assumption of dominion, or, to borrow a modern word, any conversion, was a disseisin. The wrongful delivery of the goods by the bailee as vendor corresponds perfectly to a tortious feoffment by a termor. Such a feoffment was a disseisin of the landlord; and the feoffor, not the feoffee, was the disseisor.1 The act of feoffment was at once an acquisition of a tortious fee and a conveyance.2
To-day, as every one knows, neither a trespasser, nor one taking or buying from him, nor the vendee of a bailee, either with or without delivery by the latter, acquires the absolute property in the chattel taken or bailed. The disseisee of goods, as well as the disseisee of land, has a right in rem. The process by which the right in personam has been transformed into a real right may be traced in the expansion of the writs of replevin and detinue, and is sufficiently curious to warrant a slight digression.
Replevin was originally confined to cases of wrongful distress. It was also the only action in those cases, trespass not being admissible.3 A distrainor, unlike a disseisor, did not take the chattel under a claim of absolute dominion, but only as a security. He had not even so much possession as a bailee. If the distress was carried off by a stranger, the distrainor could not maintain trespass,4 in which action the goods were always laid as the goods of the plaintiff. That action belonged to the distrainee, as the one disseised. The distrainor must use either the writ of rescous or de parco fracto, in which the property in the distress was either laid in the distrainee, or not laid in any one. Trespass and replevin were thus fundamentally distinct and mutually exclusive actions. The one was brought against a disseisor; the other against a custodian. The former was a personal action, the latter a real action. Trespass presupposed the property in the defendant, whereas replevin assumed the property in the plaintiff, at the time of action brought.5 If, therefore, when the sheriff came to replevy goods, as if distrained, the taker claimed them as his own, the sheriff was powerless. The writ directed him to take the goods of the plaintiff, detained by the defendant. But the goods were no longer the plaintiff’s; the defendant by his claim had disseised the plaintiff and made them his own. The plaintiff must abandon his action of replevin as misconceived, and proceed against the defendant, as a disseisor, by appeal of felony, or trespass.1
Even if the defendant allowed the sheriff to replevy the goods, he might afterwards in court stop the action by a mere assertion, without proof, of ownership. The goods were returned to him as goods wrongfully replevied, and the plaintiff, as before, was driven to his appeal or trespass.2
The law was so far changed by the judges in 1331, that if the defendant allowed the sheriff to take the goods, he could not afterwards abate the action by a claim of title.3
But it was still possible for the defendant to claim property before the sheriff and so arrest further action by him. To meet this difficulty, the writ de proprietate probanda was devised, probably in the reign of Edward III. By this writ the sheriff was directed to replevy the goods, notwithstanding the defendant’s claim, if by an inquest of office the property was found in the plaintiff’s favor. This finding for the plaintiff had no further effect than to justify the sheriff in replevying the goods, and thus to permit the plaintiff to go on with the replevin action just as he would have done had the defendant allowed the sheriff to take the goods.1 Replevin thus became theoretically concurrent with trespass.2 A disseisor could not thereafter gain the absolute property by his tort. A writ in trespass for carrying off and killing the plaintiff’s horse was no longer assailable for repugnancy. In 1440, to a count in trespass for taking a horse, the defendant pleaded that he took it damage feasant to his grain, which the plaintiff had carried off. It was objected that the plea was bad, as showing on its face that the grain was the plaintiff’s by the taking. But the court allowed the plea on the ground that the defendant might have brought a replevin for the grain which proved the property in him at his election.3 It became a familiar notion that the dispossessed owner might affirm the property in himself by bringing replevin, or disaffirm it by suing in trespass. In other words, there was a disseisin by election in personalty as well as in realty.
4 The disseisee’s right in rem, however, was still a qualified right; for replevin was never allowed in England against a vendee or bailee of a trespasser, nor against a second trespasser.1 It was only by the later extension of the action of detinue that a disseisee finally acquired a perfect right in rem. Detinue, although its object was the recovery of a specific chattel, was originally an action ex contractu. It was allowed only against a bailee or against a vendor, who after the sale and before delivery was in much the same position as a bailee. So essential was the element of privity at first, that in England, as upon the Continent, during the life of a bailee, he only was liable in detinue even though the chattel, either with or without the bailee’s consent, were in the possession of a third person.2 In counting against a possessor after the bailee’s death, the bailor must connect the defendant’s possession with that of the bailee, as by showing that the possessor was the widow, heir, or executor of the bailee, or otherwise in a certain privity with him.3 Afterwards, a bailor was permitted to charge a sub-bailee in detinue in the lifetime of the bailee.4 This action seems to have been given to a loser as early as the reign of Edward III.5 But it was a long time before the averment of the plaintiff’s loss of his goods became a fiction. As late as 1495, the conservative Brian, C. J., said, “He from whom goods are taken cannot have detinue.”6 His companion, Vavasor, J., it is true, expressed a contrary opinion in the same case, as did Anderson, C. J., in Russell v. Pratt7 (1579), and the court in Day v. Bisbitch8 (1586). But it was not until 1600 that Brian’s opinion can be said to have been finally abandoned. In that year the comparatively modern action of trover, which had already nearly supplanted detinue sur trover, was allowed against a trespasser; although even then two judges dissented, because by the taking “the property and possession is divested out of the plaintiff.”1 As the averments of losing and finding were now fictions, trover was maintainable by the disseisee against any possessor.
The disseisee’s right to maintain replevin and detinue (or trover) being thus established, we have now to inquire how far the rules which were found to govern in the disseisin of land apply to the disseisin of goods.
So long as the adverse possession continues, the dispossessed owner of the chattel has, manifestly, no power of present enjoyment. Has he lost also the power of alienation? His right in rem, if analyzed, means a right to recover possession by recaption or action. But these rights are as personal in their nature as the corresponding rights of entry or action in the case of land. It follows, then, that they were not transferable. And such was the law.
In 1462, Danby, C. J., and Needham, J., agreed, it is true, that a bailor whose goods had been wrongfully taken from the bailee might give them to the trespasser.2 This was against the opinion of Littleton, counsel for the plaintiff, who said, “I think it is a void gift; for when S. took them from me [bailee] the property was in him and out of you [bailor]; how, then, could you give them to him?” “Et bene dixit,” is Brooke’s comment.3 The view of the two judges was taken by Vavasor, J., also, in a like case in 1495. But one of the greatest of English judges, Brian, C. J., expressed himself clearly to the contrary: “The gift is void. . . . In my opinion the property is devested by the taking, and then he had only a right of property; and so the property and right of property are not all one. Then, if he has only a right, this gift is void; for one cannot give his right.”4 Three years later he reaffirmed his opinion in the same case: “The gift is void to him who had the goods as much as it would be to a stranger, and I think a gift to a stranger is void in such a case.”5
In Russell v. Pratt1 (1579) there is this dictum by Manwood, C. B.: “If my goods be taken from me, I cannot give them to a stranger; but if my goods come to another by trover, I may give them over to another.” The law on this point is thus summarized in “Shepard’s Touchstone,” the first edition of which was published in 1648: “Things in action are not grantable over to strangers but in special cases. . . . And, therefore, if a man have disseised me of my land or taken away my goods, I may not grant over this land or these goods until I have seisin of them again. . . . And if a man take goods from me, or from another man in whose hands they are; or I buy goods of another man and suffer them in his possession, and a stranger takes them from him, it seems, in these cases, I may give the goods to the trespasser, because the property of them is still in me [i. e., his acceptance of them is an admission of property in the donor; but they cannot be given to a stranger, since without such an admission the party has merely a right of action or resumption by recaption].”2 The bracketed part of this extract was added in 1820 by Preston, the learned editor of the sixth edition. No later allusion to this subject has been found in the English books; but there are several American decisions which might have been given by Brian himself. In McGoon v. Ankeny3 (1850), for instance, the ratio decidendi was thus expressed by the court: “While the property was thus held adversely, the real owner had but a right of action against the person in possession, which was not the subject of legal transfer.” And the case was followed in Illinois in 1887.1 Again we read, in Overton v. Williston2 (1858): “If one wrongfully converts the property of another to his own use, and continues in adverse enjoyment of it, the owner cannot sell to a third person, so as to give his vendee a right of action in his own name.”
Not much is to be found in the books as to one’s power to dispose, by will, of chattels adversely held. It is plain, however, that before 1330 the disseisee had nothing that he could bequeath. At that time the only remedies for a wrongful taking were trespass and the appeal of felony, both of which actions died with the person wronged.3 A statute in that year gave to the executor an action to recover damages against a trespasser in like manner as the testator might have recovered if living.4 The executor of a distrainee or bailor could maintain replevin or detinue, as the testator had the property at his death. After these actions were allowed against a trespasser, since the right to maintain them proved property in the dispossessed owner at his election, his executor could use them as well as trespass against a trespasser.5 It was, however, only a right of action that the executor acquired in such a case. The chattels themselves passed to the executor only when the testator died in possession. An executor counting on his title regularly stated that the testator died seised.6 In abridging one case, Fitzherbert adds, “And so see that dying seised of goods is material.”7 Finch’s statement also is explicit: “All one’s own chattels, real . . . or personal, but not those he is only to recover damages for, as in goods taken from him, or to be accounted for, . . . may be given away or devised by his testament.”8
The analogy between chattels and lands in regard to the assignability of the disseisee’s interest holds good also, with one exception, in the case of involuntary transfers. Thus the bankrupt’s right to recover possession of goods wrongfully taken passes by a true succession to the statutory assignee.1 But it is only a chose in action that passes, not the goods themselves.2
In case of death, the administrator represents the persona of the intestate, as the heir stood in the place of the ancestor.
The one exception to the parallel between land and goods is the case where the dispossessed owner of a chattel died intestate, leaving no next of kin, or was convicted of felony or outlawed. His right of action vested in the Crown, in the first case as bonum vacans, in the others by forfeiture. The king, unlike a feudal lord claiming by escheat, was a true successor. He was also entitled to choses in action as well as to choses in possession; for the sovereign, whether as assignor or assignee, was an exception to the rule that choses in action are not assignable, unless the claim was for a battery or other personal injury. In 1335 an outlaw who had been pardoned brought an action of trespass for a battery committed before the outlawry. As a pardon did not carry with it a restoration of anything forfeited, it was objected that the claim was extinguished. But the court gave judgment for the plaintiff, Shard (Sharshull, C. J.?) saying, “If this were an action for goods and chattels carried off . . . peradventure it would not be entertained; because if goods had been in the outlaw’s possession, the king would have them, and for the like reason, the king should have his action against those who wrongfully took them. But here the wrong would go unpunished if the action were not allowed.”3
The lord of a villein was entitled to the latter’s chattels if he elected to claim them. But he must, at his peril, make his election before the villein was disseised. The villein’s chose in action against the disseisor was not assignable.1
There is nothing in the law of personalty corresponding to dower in land. But the husband’s right to his wife’s chattels may be compared to his right of curtesy in her land. As was seen, the husband of a woman who was not seised of the land during the marriage was not entitled to curtesy. So a man who married a disseisee of chattels acquired no interest therein, unless during the marriage he reduced her right in rem to possession by recaption or by action in their joint names. Her right of action, in other words, was no more assignable than that of the villein. Fitzherbert treated the two cases as illustrations of the same principle.2 The doctrine was clearly stated by the court in Wan v. Lake.3 “If the wife had been dispossessed [of the term] before marriage, and no recovery during the coverture, the representative of the wife should have the term and not the husband, because it is then a chose in action.” The rule has been applied, in a number of cases, to chattels personal.4
Finally, the disseisee of a chattel, like the disseisee of land, has at common law nothing that can be taken on execution. In a valuable book published in 1888 we read: “When personal property is held adversely to its owner, his interest therein is a mere chose in action and cannot be reached by execution, unless by the provisions of some statute.”1
The position of the disseisor of a chattel was the converse of that of the disseisee. The converter, like the disseisor of land, had the power of present enjoyment and the power of alienation. If dispossessed by a stranger he might proceed against him by trespass, replevin, detinue, or trover.2 He could sell the chattel3 or bail it.4 It would go by will to the executor or be cast by descent upon the administrator;5 was forfeited to the Crown for felony;6 and was subject to execution. A conversion by the wife, unless the property was destroyed, was necessarily to the use of the husband,7 as a disseisin by a villein must have profited his lord if the latter claimed it.
We have thus far considered only the resemblances between land and chattels in the matter of seisin and disseisin. But our comparison would be incomplete if attention were not called to one point of difference. One in possession of a horse or cow was seised of the chattel itself, without more. There could, therefore, be but a single seisin of it at any given moment. If, for instance, a chattel was loaned for a term, the bailee alone was seised of it. He, and he only, could be disseised of it. To this day the bailor for a term cannot maintain trespass or trover against a stranger for a disseisin of the bailee. But, on the other hand, there was no such thing as seisin of land simpliciter. The seisin was always qualified by the mode of possession. One was seised either ut de feodo vel libero tenemento, or else ut de termino. Accordingly, wherever there was a term there were necessarily two distinct seisins in one and the same land, at one and the same time. Both of these seisins were lost by the tortious entry of a stranger upon the land under a claim of right, and the disseisor was exposed to two actions,—the assize of novel disseisin by the freeholder, and the ejectio firmæ by the termor. This difference between land and chattels is obviously artificial and of feudal origin.
But if this historical sketch has been accurately drawn, the disseisin of land finds its almost perfect counterpart in the conversion of chattels, notwithstanding the difference here indicated. It is still true that the doctrine of disseisin belongs not to feudalism alone, but to the general law of property. In a subsequent paper, the writer will endeavor to show that this doctrine is not a mere episode in English legal history, but that it is a living principle, founded in the nature of things, and of great practical value in the solution of many important questions.
THE NATURE OF OWNERSHIP
In the foregoing pages the writer has endeavored to show, in the light of history, that disseisin was not a feudal doctrine, but a principle of property in general, personal as well as real. Conversion of chattels, we found, differed from disseisin of land in name, but not in substance. In each case the effect of the tort was to transfer the res to the wrongdoer, and to cut down the interest of the party wronged to a mere right to recover the res. Or, as the sagacious Brian, C. J., put it, the one had the property, the other only the right of property.
The disseisor, whether of land or chattels, was said to have the property, for these reasons. So long as the disseisin continued he had the power of present enjoyment of the res; his interest, although liable to be determined at any moment by the disseisee, was as fully protected against all other assailants as the interest of an absolute owner; and, finally, his interest was freely transferable, both by his own act and by operation of law, although, of course, by reason of its precarious nature, its exchangeable value was small. The disseisee, on the other hand, was said to have a mere right of property, because, although he was entitled to recover the res by self-redress, or by action at law, this was his only right. The disseisin deprived him of the two conspicuous marks of perfect ownership. He could neither enjoy the land or chattel in specie, nor bring either of them to market. The interest of the disseisor might have little exchangeable value; but that of the disseisee had none. For, as we have seen, this interest, being a chose in action, was not transferable at common law, either by conveyance inter vivos, or by will, nor even, as a rule, by operation of law.
Are these doctrines of the old common law accidents of English legal history, or are they founded in the nature of things? Do they chiefly concern the legal antiquarian, or have they also a practical bearing upon the litigation of to-day? To answer these questions, it will be necessary, in the first place, to analyze the idea of “ownership” or “property,” in the hope of working out a definition that will bear the test of application to concrete cases; and, secondly, an attempt must be made to explain the reason of the rule that choses in action are not assignable.
It is customary to speak of one as owner of a thing, although he has ceased to possess it for a time, either by his own act, as in the case of a lease or bailment, or without his consent, as in the case of a loss or disseisin. And yet every one would admit that the power of present enjoyment is one of the attributes of perfect ownership. It is evident, therefore, that it is only by an inaccurate, or, at least, elliptical use of language, that a landlord, bailor, loser, or disseisee can be called a true owner. The potential is treated as if actually existent. On the other hand, no one will affirm that the tenant, bailee, finder, or disseisor can be properly described as owner. For although they all have the power of present enjoyment, and, consequently, the power of transfer, their interest is either of limited duration, or altogether precarious. It would seem to follow, therefore, that wherever there is a lease, bailment, loss, or disseisin of a res, no one can be said to be the full owner of it. And this, it is submitted, is the fact. Only he in whom the power to enjoy and the unqualified right to enjoy concur can be called an owner in the full and strict sense of the term. The correctness of this conclusion is confirmed by the opinion of Blackstone, expressed with his wonted felicity. After speaking of the union in one person of the possession, the right of possession, and the right of property, he adds: “In which union consists a complete title to lands, tenements, and hereditaments. For it is an ancient maxim of the law, that no title is completely good, unless the right of possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit. And when to this double right the actual possession is also united, there is, according to the expression of Fleta, juris et seisinæ conjunctio, then, and then only, is the title completely legal.”1
A true property may, therefore, be shortly defined as possession coupled with the unlimited right of possession. If these two elements are vested in different persons there is a divided ownership. Let us test these results by considering some of the modes by which a perfect title may be acquired by one who has neither, or only one of these two elements of complete ownership.
The typical case of title by original acquisition is title by occupation. For the occupier of a res nullius does acquire a perfect title and not merely possession. The fisherman who catches a fish out of the sea, or the sportsman who bags a bird, is at once absolute owner. He has possession with the unqualified right of possession, since there is no one in rerum natura who can rightfully interfere with him. It is on the same principle that a stranger who occupies land on the death of a tenant pur auter vie is owner of the residue of the life estate. For no one during the life of cestui que vie can legally disturb him.
A derivative title is commonly acquired from an owner by purchase or descent. The title in such cases is said to pass by transfer. For all practical purposes this is a just expression. But if the transaction be closely scrutinized, the physical res is the only thing transferred. The seller’s right of possession, being a relation between himself and the res, is purely personal to him, and cannot, in the nature of things, be transferred to another. The purchaser may and does acquire a similar and coextensive right of possession, but not the same right that the seller had. What really takes place is this: the seller transfers the res and abandons or extinguishes his right of possession. The buyer’s possession is thus unqualified by the existence of any right of possession in another, and he, like the occupant, and for the same reason, becomes absolute owner.
There is one curious case of derivative title which may be thought to confirm in a somewhat striking manner the accuracy of the definition here suggested. If a chattel, real or personal, was granted or bequeathed to one for life, the grantee or legatee became not only tenant for life, but absolute owner of it. In other words, there could be no reversion or remainder after a life estate in a chattel. Possibly others may have been as much perplexed as the present writer in seeking for the reason of this rule. The explanation is, however, simple. The common-law procedure, established when such limitations of chattels were either unknown or extremely rare, gave the reversioner and remainderman no remedy against the life tenant. There was no action for chattels corresponding to the formedon in reverter and remainder for land. Detinue would, of course, lie in general on a contract of bailment; but the contract of bailment, like a contract for the payment of money, must be conceivably performable by the obligor himself, and therefore before his death; he could not create a duty binding only his executor.1 Consequently, there being no right of action against him, the life tenant’s power of enjoyment was unrestricted. His ownership was necessarily absolute.2
Another rule, now obsolete, admits of a similar explanation. In the fourteenth century, as we have seen, a trespasser acquired the absolute property in the chattel wrongfully taken. The common law gave the dispossessed owner no remedy for its recovery. There was no assise of novel disseisin for chattels. Replevin was restricted to cases of wrongful distress. Detinue, originally founded upon a bailment, and afterwards extended to cases of losing and finding, was not allowed against a trespasser until about 1600. Trespass was therefore the owner’s only action; but Trespass sounded in damages. The trespasser’s possession being inviolable, he was necessarily owner.
A derivative title may be acquired by an equitable estoppel. If the owner of land permits another to sell and convey it, as if it were the seller’s own, the purchaser gets at law only the seisin. The original owner’s title, that is, his right to recover the seisin, is not otherwise affected by the conveyance. But a court of equity will grant a permanent injunction against the owner’s assertion of his common-law right, and thereby practically nullify it, so that the purchaser’s title is substantially perfect.
Where the two elements of ownership are severed, as by a disseisin, and vested in two persons, either may conceivably make his defective title perfect; but the mode of accomplishing this is different in the two cases. The disseisee may regain his lost possession by entry or recaption, by action at law, or by a voluntary surrender on the part of the disseisor. In each of these ways his title becomes complete, and is the result of a transfer, voluntary or involuntary, of the physical res.
The perfection of the title of the disseisor, on the other hand, is not accomplished through a transfer to him of the disseisee’s right to recover possession. In the very nature of things, this right of the dispossessed owner cannot be conveyed to the wrongful possessor. It would be absurd to speak of such possessor acquiring a right to recover possession from himself, which would be the necessary consequence of the supposed transfer. But the disseisee’s right, although not transferable, may, nevertheless, be extinguished. And since, by its extinguishment, the possession of the disseisor becomes legally unassailable, the latter’s ownership is thereby complete.
The extinguishment may come about in divers ways:—
(1.) By a release. “Releases of this kind must be made either to the disseisor, his feoffee, or his heir. In all these cases the possession is in the releasee; the right in the releasor and the uniting the right to the possession completes the title of the releasee.”1 In feoffments and grants it was a rule that the word “heirs” was essential to the creation of an estate of inheritance. But, as Coke tells us, “When a bare right is released, as when the disseisee releases to the disseisor all his right, he need not speake of his heires.”2 This distinction would seem to be due to the fact that a release operates, not as a true conveyance, but by way of extinguishment.
(2.) By marriage. As we have seen in the preceding article,3 if a woman, who was dispossessed of her land or chattels, married, her right of action against the wrong-doer, not being assignable, did not pass to her husband. If, therefore, she died before possession was regained, the husband had no curtesy in the land, and the right to recover the chattel passed to her representative. But if the dispossessed woman can be imagined to marry the dispossessor, it seems clear, although no authority has been found,4 that in that highly improbable case the marriage, by suspending and consequently extinguishing her right of action, would give the husband a fee simple in the land and absolute ownership of the chattel.
(3). By death. If a man were disseised by his eldest son and died, the son and heir would be complete owner; for death would have removed the only person in the world who could legally assail his possession. The law of trusts furnishes another illustration. The right of a cestui que trust, it is true, is not a right in rem, but a right in personam. Nevertheless it relates to a specific res, and so long as it exists, practically deprives the trustee of the benefits of ownership. If this right of the cestui que trust could be annihilated, the trustee would be owner in substance as well as in name. This annihilation occurred in England, if the cestui que trust of land died intestate and without heirs, inasmuch as a trust of land did not escheat to the crown or other feudal lord.1 The trust was said to sink for the benefit of the trustee, and for the obvious reason that no one could call him to account.
(4.) By lapse of time. Title by prescription was an important chapter in the Roman law. Continuous possession, in good faith, although without right, gave the possessor, after a given time, a perfect title. The civilians, as is shown by the requisite of bona fides, looked at the matter chiefly from the side of the adverse possessor. In England the point of view is different. English lawyers regard not the merit of the possessor, but the demerit of the one out of possession. The statutes of limitation provide, in terms, not that the adverse possessor shall acquire title, but that one who neglects for a given time to assert his right shall not thereafter enforce it. Nevertheless, the question of bona fides apart, there is no essential difference between the two systems on the point under discussion. In the English law, no less than in the Roman law, title is gained by prescriptive acquisition.2 As a matter of legal reasoning this seems clear. For, as already pointed out, the only imperfection in the disseisor’s title is the disseisee’s right to recover possession. When the period of limitation has run, the statute, by forbidding the exercise of the right, virtually annihilates it, and the imperfect title must become perfect.
This conclusion is abundantly supported by authority from Bracton’s time down: “Longa enim possessio . . . parit jus possidendi et tollit actionem vero domino petenti, quandoque unam, quandoque aliam, quandoque omnem . . . Sic enim . . . acquiritur possessio et liberum tenementum sine titulo et traditione, per patientiam et negligentiam veri domini.”1
Blackstone is even more explicit: “Such actual possession is prima facie evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right by degrees, ripen into a perfect and indefeasible title.”2 Lord Mansfield may also be cited: “Twenty years’ adverse possession is a positive title to the defendant; it is not a bar to the action or remedy of the plaintiff only, but takes away his right of possession.”3
Sir Thomas Plummer, M. R., has expressed himself to the same effect as to equitable interests: “If the negligent owner has forever forfeited by his laches his right to any remedy to recover, he has in effect lost his title forever. The defendant keeps possession without the possibility of being ever disturbed by any one. The loss of the former owner is necessarily his gain; it is more, he gains a positive title under the statute at law, and by analogy in equity.”4
There are, to be sure, occasional dicta to the effect that the statute of James I. only barred the remedy without extinguishing the right, and that the right which would support a writ of right or other droitural action never died. An immortal right to bring an eternally prohibited action is a metaphysical subtlety that the present writer cannot pretend to understand.1 Fortunately these dicta have had no other effect than to bring some unnecessary confusion of ideas into this subject. The logic of facts has proved irresistible in the decision of concrete cases. The courts have uniformly held that a title gained by lapse of time is not to be distinguished from a title acquired by grant.2 Thus, if the prescriptive owner desires to transfer his title, he must observe the usual formalities of a conveyance; he cannot revest the title in the disseisee by disclaiming the benefit of the statute.3 His title is so perfect that a court of equity will compel its acceptance by a purchaser.1 A repeal of the statute will not affect his title.2 If dispossessed by the disseisee after the statute has run, he may enforce his right of entry or action against him as he might against any other intruder.3 He may even maintain a bill in equity to remove the cloud upon his title, created by the documentary title of the original owner.1 [If sued by the disseisee he may plead in denial of the plaintiff’s title.2 ] The English cases cited in support of these propositions, it may be urged, were decided under St. 3 and 4 Wm. IV. c. 27, the 34th section of which expressly extinguishes the title of the original owner at the end of the time limited. But inasmuch as the American cases cited were decided under statutes substantially like St. 21 James I. c. 16, which contains no allusion to any extinguishment of title, the 34th section referred to may fairly be regarded as pure surplusage.
The conclusions reached in regard to land apply with equal force to chattels. The vice in the converter’s title is the dispossessed owner’s right to recover the chattel by recaption or action. The bar of the statute operating as a perpetual injunction against the enforcement of the right of action virtually destroys that right; and the policy of the law will not permit the dispossessed owner’s right to recover by his own act to survive the extinguishment of his right to recover by legal process.3 The vice being thus removed, the converter’s title is unimpeachable; and it is as true of chattels as of land that a prescriptive title is as effective for all purposes as a title by grant. Accordingly, the adverse possessor cannot restore the title to the original owner by waiving the benefit of the statute.1 His title is not affected by a repeal of the statute.2 If dispossessed by the original owner, he may maintain Detinue or Replevin against the latter, as he might against any stranger.3 [He may have an injunction restraining the removal of the chattel by the original owner.4 ] A title gained by lapse of time in one State is good everywhere.5 If insolvent, he cannot surrender the chattel to the original owner.6 If sued by the original owner, he may plead in denial of the plaintiff’s title.1
In the cases thus far considered the land or chattel has been assumed to continue in the possession of the disseisor or converter until the bar of the statute was complete. But before that time the wrong-doer may have parted with the res by a sale or other transfer, or he may have been, in turn, deprived of it by a second wrong-doer.
If the thing has passed to the new possessor by a sale, the change of possession will produce, so far as the statute of limitations is concerned, only this difference: the title will vest at the end of the period of limitation in the new possessor, instead of the original disseisor or converter. Let us suppose, for example, that B. disseises A., occupies for ten years, and then conveys to C. If the statutory period be assumed to be twenty years, B.’s title at the time of the transfer is good against every one except A., but is limited by the latter’s right to recover possession at any time during the ensuing ten years. B.’s title, thus qualified, passes to C. At the end of the second ten years the qualification vanishes, and C. is complete owner. This, it is believed, is the rationale of the oft-repeated rule that the times of successive adverse holders, standing in privity with each other, may be tacked together to make up the period of limitation. In regard to land, this rule of tacking is all but universal.2
The decisions in the case of chattels are few. As a matter of principle, it is submitted this rule of tacking is as applicable to chattels as to land.1 A denial of the right to tack would, furthermore, lead to this result. If a converter were to sell the chattel, five years after its conversion, to one ignorant of the seller’s tort, the dispossessed owner’s right to recover the chattel from the purchaser would continue five years longer than his right to recover from the converter would have lasted, if there had been no sale. In other words, an innocent purchaser from a wrong-doer would be in a worse position than the wrong-doer himself,—a conclusion as shocking in point of justice as it would be anomalous in law.
It remains to consider the operation of the statute when the disseisor or converter has been, in turn, dispossessed by a wrong-doer. A change of possession accomplished in this mode has no more effect upon the right of the original owner than a change of possession by means of a transfer. But the rights and relations of the two successive adverse possessors are fundamentally different in the two cases. Let us suppose, as before, that B. disseises A., and occupies for ten years, and then, instead of selling to C., is disseised by C., who occupies for another ten years. At the moment of the second disseisin B.’s possession is qualified by A.’s right to recover the res at any time during the next ten years. After the disseisin C.’s possession would, of course, be subject to the same qualification. But B. had as against the rest of the world the two elements of perfect ownership,—possession and the unlimited right of possession. C. by disseising B. severs these two elements of B.’s title, good against every one but A., in the same way that B. by his tort had previously divided A.’s ownership, good against every one without exception. Just as by the original disseisin B. acquired the res subject to A.’s right of entry or action for twenty years, so by the second disseisin C. acquires the res subject to B.’s right of entry or action for an equal period. There would be, therefore, two defects in C.’s title; namely, A.’s right to recover the res for ten years, and B.’s right to recover it for twenty years from the time of the second disseisin. If A. fails to assert his claim during his ten years, his right is gone forever. One of the defects of C.’s title is blotted out. He becomes owner against every one but B. He may, accordingly, at any time thereafter defend successfully an action brought by A., or if forcibly dispossessed by A., he may recover the res from him by entry or action as he might against any other dispossessor, B. alone excepted. In other words, C., although a disseisor, and therefore not in privity with B., may tack the time of B.’s adverse possession to his own to make out the statutory period against A. This tacking is allowed in England, Canada, and in several of our States.1 There are, however, some decisions and a widespread opinion to the contrary in this country.2 But this opinion, with all deference, must be deemed erroneous. The laches of the original owner, who remains continuously dispossessed throughout the statutory period, is the same, and should be attended with the same consequences to him, whether the adverse possession be held continuously by one or several persons, and whether subsequent possessors do or do not stand in privity with their predecessors. If, indeed, the adverse possession is not continuous, if, for instance, B., after disseising A., abandons the land, leaving the possession vacant, and C. subsequently enters without right upon this vacant possession, he cannot, of course, tack his time to B.’s.1 Upon B.’s abandonment of the land the disseisin comes to an end. In legal contemplation, A.’s possession revives.2 Having the right to possess, and no one else having actual possession, he is in a position analogous to that of an heir, or conusee of a fine before entry, and like them has a seisin in law. C.’s disseisin has, therefore, the same effect as if A. had never been disseised by B., and A.’s right of entry or action must continue until C. himself, or C. and his successors, have held adversely for twenty years. If the distinction here suggested between successive disseisins with continuous adverse possession, and successive disseisins without continuous adverse possession, had been kept in mind, a different result, it is believed, would have been reached in the American cases.3
If the conclusions here advocated are true in regard to land, they would seem to be equally valid where there is a continuous adverse possession of chattels by successive holders, although there is no privity between them. But no decisions have been discovered upon this point.1
(5.) By judgment. One who has been wrongfully dispossessed of a chattel has the option of suing the wrong-doer in Replevin, Detinue, Trover, or Trespass. A judgment in Replevin enables him to keep the chattels already replevied and delivered to him by the sheriff, and a judgment in Detinue establishes his right to recover the chattel in specie,2 or, that being impracticable, its value. A judgment in Trespass or Trover, on the other hand, is for the recovery of the value only, as damages. Inasmuch as a defendant ought not to be twice vexed for a single wrong, a judgment in any one of these forms of action is not only a merger of the right to resort to that one, but is also a bar against the others.3 Accordingly, a judgment in Trespass or Trover against a sole wrong-doer who, at the time of judgment recovered, is still in possession of the chattel operates like the statute of limitations, and annihilates the dispossessed owner’s right to recover the chattel. The converter’s possession being thus set free from adverse claims, changes into ownership.4
If the change of possession is before judgment, there is a difference. Let us suppose, for instance, that B. converts the chattel of A., and, before judgment recovered against him in Trespass or Trover, sells it to C., or is in turn dispossessed by C. C., the new possessor, will hold the chattel, as B. held it, subject to A.’s right to recover it. The change of possession simply enlarges the scope of A.’s remedies; for his new rights against C. do not destroy his old right to sue B. in Trespass or Trover. Nor will an unsatisfied judgment against B. in either of these actions affect his right to recover the chattel from C.1 [Or the proceeds of its sale in an action of assumpsit.2 ] It is no longer a question of double vexation to one defendant for a single wrong. Not until the judgment against B. is satisfied can C. use it as a bar to an action against himself. A different principle then comes into play, namely, that no one should receive double compensation for a single injury.3
Another case can be put where the dispossessed owner has concurrent rights against two or more persons. B. and C. may have jointly dispossessed A., instead of being successive holders of the converted chattel. Under these circumstances A. may proceed against B. and C. jointly or severally. If he obtain a joint judgment in Trespass or Trover, all his rights against both are merged therein, and his title to the chattel is extinguished. But if he obtain a separate judgment against one, he may still bring Replevin or Detinue against the other to recover the chattel, or Trespass or Trover for its value; for the latter cannot invoke the maxim, nemo bis vexari debet pro eadem causa.1 Not until the judgment against the one is satisfied can it be used as a bar in an action against the other. The controversy whether the title to a converted chattel vests in a defendant by a simple judgment, or only after the satisfaction of the judgment, is, therefore, but another battle of the knights over the gold and silver shield. Under some circumstances the title changes by the judgment alone; in other cases satisfaction is necessary to produce that result.2
INALIENABILITY OF CHOSES IN ACTION
The rule that a chose in action is not assignable was a rule of the widest application. A creditor could not assign his debt. A reversioner could not convey his reversion, nor a remainder-man his remainder. A bailor was unable to transfer his interest in a chattel. And, as we have seen, the disseisee of land or chattels could not invest another with his right to recover the res or its value. In a word, no right of action, whether a right in rem or a right in personam, whether arising ex contractu or ex delicto, was assignable either by act of the party or by operation of law.
A right of action for the recovery of land or chattels, or of a debt which, like land or chattels, was regarded as a specific res, did, indeed, descend to one’s representative in the case of death. But this was hardly a departure from the rule, since the representative was looked upon as a continuation of the persona of the deceased.1
There were, however, a few exceptions to the rule. The king, as might be supposed, could grant or receive the benefit of a chose in action. So, too, a reversion or a remainder was transferable by fine in the king’s court,2 or by a customary devise, which, when recorded in the local court, operated like a fine.3 Again, certain obligations, by the tenor of which the obligor expressly bound himself to the obligee and his assigns, could be enforced by a transferee. If, for instance, one granted an annuity to A. and his assigns, or covenanted to enfeoff A. and his assigns, or made a charter of warranty to A. and his assigns, the assignee was allowed to bring an action in his own name against the grantor,1 covenantor,2 and warrantor,3 respectively.
The significance of this exception lies in the fact that it goes far to explain the reason of the rule which prohibits the assignment of rights of action in general. The traditional opinion that this rule had its origin in the aversion of the “sages and founders of our law” to the “multiplying of contentions and suits”4 shows the power of a great name for the perpetuation of error. The inadequacy of this explanation by Lord Coke was first pointed out by Mr. Spence.5 The rule is not only older than the doctrine of maintenance in English law, but is believed to be a principle of universal law.
A right of action in one person implies a corresponding duty in another to perform an agreement or to make reparation for a tort. That is to say, a chose in action always presupposes a personal relation between two individuals. But a personal relation in the very nature of things cannot be assigned. Even a relation between a person and a physical thing in his possession, as already stated,6 cannot be transferred. The thing itself may be transferred, and, by consent of the parties to such transfer, the relation between the transferror and the thing may be destroyed and replaced by a new but similar relation between the transferee and the res. But where one has a mere right against another, there is nothing that is capable of transfer. The duty of B. to A., whether arising ex contractu or ex delicto, may of course be extinguished and replaced by a new and coextensive duty of B. to C. But this substitution of duties can be accomplished only in two ways: either by the consent of B., or, without his consent, by an act of sovereignty. The exceptions already mentioned of assignments by or to the king, and conveyances of remainders and reversions in the King’s Court, are illustrations of the exercise of sovereign power. Further illustrations are found in the bankruptcy laws which enable the assignee to realize the bankrupt’s choses in action,1 and in the Statute 4 and 5 Anne, c. 16, which abolished the necessity of attornment.
When the substitution of duties is by consent, the consent may be given either after the duty arises or contemporaneously with its creation. In the former case the substitution is known as a novation, unless the duty relates to land in the possession of a tenant, in which case it is called an attornment. A consent contemporaneous with the creation of the duty is given whenever an obligation is by its terms made to run in favor of the obligee and his assigns, as in the case of annuities, covenants, and warranties before mentioned, or to order or bearer, as in the case of bills and notes and other negotiable securities. Here, too, on the occasion of each successive transfer, there is a novation by virtue of the obligor’s consent given in advance; the duty to the transferror is extinguished and a new duty is created in favor of the transferee.
The practice of attornment prevailed from time immemorial, but was confined to the transfer of reversions and remainders. Novation, although now a familiar doctrine, was, if we except the case of obligations running to the obligee and his assigns, altogether unknown before the days of assumpsit upon mutual promises.1 The field for the substitution of duties by consent was therefore extremely limited, and in the great majority of cases a creditor would have found it impossible to give another the benefit of his claim had not the ingenuity of our ancestors devised another expedient, namely, the letter of attorney. By such a letter, the owner of a claim appointed the intended transferee as his attorney, with power to enforce the claim in the appointor’s name, but to retain whatever he might recover for his own benefit. In this way the practical advantage of a transfer was secured without any sacrifice of the principle of the inalienability of choses in action.2
Indeed, so effectual was the power of attorney as a transfer, that, during a considerable interval, it was thought unduly to stimulate litigation, and therefore to fall within the statutory prohibition of maintenance, unless the power was executed for the benefit of a creditor of the transferror. Powers executed for the benefit of a purchaser or donee were treated as void from the beginning of the fifteenth century, if not earlier, till near the close of the seventeenth century.3
The objection of maintenance at length gave way before the modern commercial spirit, and for the last two centuries debts have been as freely transferable by power of attorney as any other property.1
By statute, in many jurisdictions, the assignee may even sue in his own name. But it is important to bear in mind that the assignee under the statute still proceeds in a certain sense as the representative of the assignor. The statute of itself works no novation. It introduces only a change of procedure.2 A release by the assignor to the debtor, ignorant of the assignment, extinguishes all liability of the debtor to any one.
So, if the assignor should wrongfully make a second assignment, and the second assignee should collect the debt, he would keep the money, and the first assignee would get nothing.3
We are now in a position to consider upon principle to what extent and in what mode a disseisee’s interest in land or chattels may be transferred. The disseisee, by reason of the disseisor’s tort, has a right to recover the res from the latter by self-redress or by action. This relation between the two, as we have seen, cannot be specifically transferred to another. There is, of course, no question of novation in such a case. But the mode of transfer which proved so effectual in the case of rights ex contractu, is equally applicable to claims arising ex delicto. The disseisee has only to constitute the intended grantee his attorney with power to recover the land or chattel, and to keep for his own benefit the res when recovered. There is an instance of such a grant as old as the time of Richard I.: “G. filius G. ponit loco suo J. versus Gil. . . . de placito XL. acrarum terræ in H. ad lucrandum vel perdendum etconcedit ei totum jus suumquod habet in predicta terra.”1
The doctrine of maintenance which so long hampered the assignment of contractual rights proved an even more persistent obstacle to the transfer of rights to recover land or chattels. Indeed, in the case of land it was an insuperable obstacle in England until 1845; for up to that time the Statute 32 Henry VIII. c. 16, expressly nullified all grants by one disseised. In this country, however, the right of the grantee of a disseisee to bring a real action in the name of his grantor has, during the present century, been generally recognized.1
It is believed that in England, at the present day, one who is dispossessed of his chattels may so far transfer his interest as to enable the assignee to bring an action to recover the chattel or its value in the name of the assignor. But no decision has been found upon the point. In the United States the right of the transferee to sue in the transferror’s name,2 or, in jurisdictions where the real party in interest must be plaintiff, in his own name,3 would be universally conceded.
We have thus far assumed that the dispossessed owner has nothing to transfer but a right of action or recaption; that when he is called owner, nothing more is meant than that he has the chief one of the two elements of perfect ownership, namely, the right of possession, and is, therefore, potentially owner. This assumption is conceived to be well founded, and is supported by abundant authority.1 There are, however, a few decisions and dicta to the contrary.2 These adverse opinions all go back to a dictum of Mr. Justice Story: “I know of no principle of law that establishes that a sale of personal goods is invalid because they are not in the possession of the rightful owner, but are withheld by a wrong-doer. The sale is not, under such circumstances, the sale of a right of action, but it is the sale of the thing itself, and good to pass the title to every person, not holding the same under a bona fide title for a valuable consideration without notice; and a fortiori against the wrong-doer.”3 Had this unfortunate dictum proceeded from a less distinguished source, it probably would not have had its present following. It may be said of it that it involves a petitio principi, assuming without proof, and in contradiction of all precedent, that the dispossessed owner really has something more than a right of action. What this something is has never been defined, and, it is submitted, for the reason that non-existent things are incapable of definition.
Let us test this dictum, however, by some of its practical consequences. We will suppose that after the sale the converter, in ignorance thereof, makes full compensation to the vendor for the conversion, and receives from him a release. Will it be maintained that the converter cannot hold the chattel against the vendee? And yet if the title passed to the vendee by the sale, that title cannot be affected by a subsequent release by one who has no title. Again, we may assume that the vendor wrongfully makes a second sale, and that the second vendee, being still in ignorance of the first sale, recovers the chattel or its value from the converter. Must the second vendee surrender what he recovers to the first vendee? Surely not. But he must if the dictum under discussion is sound. Thirdly, if the title passed to the vendee, what becomes of the vendor’s right of action? Surely he cannot recover the value of the chattel from the converter after he has sold it to another. But it may be urged he will be entitled to nominal damages only. Be it so. Suppose, then, that immediately after the sale the chattel is accidentally destroyed. The vendor will recover his nominal damages, the vendee will get nothing, and the converter will go practically scot free. It is possible to say, however, that the sale passes not only the title, but also the right to sue in the vendor’s name for the conversion. But this hypothesis may work an injustice to the converter. If not sued for six years his title will be perfect. Suppose the sale to occur near the end of the period of limitation, and that the vendee can prove a conversion subsequent to the sale, as by a demand and refusal, the statute would run for another six years, which could not have happened in favor of the vendor if there had been no sale. In other words, the rule, Nemo dare potest quod non habet, would be violated.1
All these unsatisfactory results are avoided by the adoption of the opposite view, supported alike by precedent and general reasoning, that a right of action is the sum and substance of the interest of a dispossessed owner of a chattel. On this theory the sale of the disseisee’s right of action has the same operation as the assignment of a debt. The vendee stands in the place of the grantor, but does not displace him. He cannot accordingly extend the statute of limitations to the detriment of the converter. A release by the vendor for value to the converter who is ignorant of the sale, although wrongful, extinguishes all right to recover possession from the latter, and so makes him complete owner of the chattel. And, finally, a second purchaser from the dispossessed owner, who in good faith gets the chattel from the converter, may keep it. If, furthermore, statutes existed in all jurisdictions enabling the purchaser from a dispossessed owner of a chattel to sue for its recovery in his own name, there would be a complete harmony between the requirements of legal principle and commercial convenience.
In conclusion, then, the ancient doctrine of disseisin of land and chattels was not an accident of English legal history, but a rule of universal law. Brian’s dictum, that the wrongful possessor had the property and the dispossessed owner only the right of property, rightly understood, is not a curiosity for the legal antiquarian, but a working principle for the determination of controversies for all time.
[1 ]This Essay was originally published in the Harvard Law Review, 1890, Vol. III, pp. 23-40, 313-328, 337-346. Additions are indicated by brackets.
[2 ]A biographical note of this author is prefixed to Essay No. 43, in Volume II of this Collection.
[3 ]1 Rot Cur. Reg. 451; 1 Stat. of Realm, 230, or Bract. f. 136 b; Y. B. 14 Edw. II. 409.
[1 ]Williams, Seisin, 7. See also Leach v. Jay, 9 Ch. Div. 42, 44, 45. [Two joint disseisors become joint tenants. Putney v. Dresser, 2 Met. 583; Litt. § 278.]
[2 ]Fitz. Ab. Tresp. 153.
[3 ]Finch, Law, Book III. c. 6.
[4 ]27 Ass. pl. 64. See also Y. B. 2 H. IV. 12-51. There is a legal curiosity in 2 Roll. Ab. 553 [Q] 1, 2. “If my servant, without my knowledge, put my beasts in another’s land, my servant is the trespasser and not I; because, by the voluntary putting of the animals there without my consent, he gains a special property for the time, and so for this purpose they are his animals. But, semble. if my wife puts my beasts in another’s land, I, myself, am trespasser, because the wife cannot gain a property from me.”
[5 ]Y. B. 8 Ed. III. 10-30.
[1 ][C stole from B goods which B had stolen from A. An indictment against C describing the goods as the property of B was held good in Ward v. People, 3 Hill, 395.]
[2 ]Y. B. 30 & 31 Ed. I. 508, 512, 512-514, 526: Fitzh. Coron. 95, 162, 318, 319, 367, 379, 392; Fitzh. Avow. 151: Dickson’s Case, Hetl. 64. Under certain circumstances the victim of the theft might obtain restitution of the goods. But the cases cited in this note show the difficulties that must be surmounted.
[3 ]For the best discussion of the doctrine of disseisin of land see Maitland “Mystery of Seisin,” 2 L. Q. Rev. 481, to which the present writer is indebted for many valuable suggestions.
[1 ]Partridge v. Strange, Plow. 88, per Montague, C. J. [See also Doe v. Evans, 1 Q. B. 717, and 1 Platt, Leases, 50. Bract. f. 376, 5 Tw. Bract. 456; 7 Seld. Socy., Mirror of Justice, 74-75; Co. Litt. 266, a.]
[2 ]8 & 9 Vict. c. 106, § 6. See Jenkins v. Jones, 9 Q. B. Div. 128.
[3 ]Arkansas, California, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, Oregon, Vermont, Virginia, West Virginia, Wisconsin, Arizona, Idaho, Utah, Wyoming.
[4 ]Delaware, District of Columbia, Maryland, New Hampshire, Ohio, Pennsylvania, South Carolina, Texas.
[5 ]Bernstein v. Humes (1877), 60 Ala. 582; Conn. Rev. Stat. (1875) 354, § 15; Dak. Civil C. § 681; Doe v. Roe (1869), 13 Fla. 602; Russell v. Doyle (1886), 84 Ky. 386, 388; Sohier v. Coffin (1869), 101 Mass. 179; Rawson v. Putnam (1880), 128 Mass. 552, 554; Webster v. Van Steenburgh (1864), 46 Barb. 211; Murray v. Blackledge (1874), 71 N. Ca. 492; Burdick v. Burdick (1884), 14 R. I. 574; Tenn. Code (1884), § 2446; [Probst. v. Bush, 115 Ala. 495; Levy v. Cox, 22 Fla. 546; Reyes v. Middleton, 36 Fla. 99; Smith v. Klay, 47 Fla. 216; Doe v. Edmondson (Fla. 1906) 40 So. R. 505; Davitte v. So. Co. 108 Ga. 665; Lowe v. Bivens, 112 Ga. 341; Gately v. Weldon, 12 Kv. L. Rep. 621; Sneed v. Hope, 16 Ky. L. Rep. 871; Terry v. Hilton, 20 Ky. L. Rep. 367; Preston v. Breckenridge, 86 Ky. 619 (semble); Joyce v. Dyer, 189 Mass. 64; Thomas v. Perry (New Jersey law), Pet. C. C. 49; Pearce v. Moore, 114 N. Y. 256; Dever v. Hagerty, 169 N. Y. 481; Gilmore v. Dolan, 114 N. Y. Ap. Div. 774; Green v. Horn, 128 N. Y. Ap. Div. 686; Huston v. Scott (Okla. 1908), 94 Pac. R. 512; Galbraith v. Payne, 12 N. Dak. 164; Schneller v. Plankinton, 12 N. Dak. 561; Randolp. v. Kinney, 3 Rand. 394, 396.]
[6 ]1 Jarm. Wills (4 ed.), 49; Poor v. Robinson, 10 Mass. 131; Mass. Rev. St. c. 62, § 2. [Y. B. 39 Hen. VI, 18-23.]
[7 ]Smith v. Coffin, 2 H. Bl. 444.
[1 ][Carr v. Anderson, 6 N. Y. Ap. Div. 6, 10.]
[2 ]This principle was not maintained in its full integrity in the time of Coke. See Maitland, 2 L. Q. Rev. 486, 487, where the authorities are fully collected. [“As if a man be disseised and after be outlawed, he shall not forfeit the profits of the land,” Beverley’s Case, Goldsb. 55, pl. 8.]
[1 ]Co. Lit. 118 b.
[2 ]Co. Lit. 117 a.
[3 ]3 & 4 Wm. IV. c. 105.
[4 ]Perk. § 366; Thompson v. Thompson, 1 Jones (N. Ca.), 431; 1 Washb. R. P. (5 ed.) 225, 226; [Y. B. 24 Ed. III. 65, a-69 per Shard; Carr v. Anderson, 6 N. Y. Ap. Div. 6].
[5 ]2 L. Q. Rev. 486; 1 Bishop, Mar. W. § 509; Den v. Demarest, 1 Zab. 525, 542.
[6 ]Baker v. Oakwood, 49 Hun, 416.
[7 ]Stamere v. Amonye, 1 Roll. Abr. 888, pl. 5; [Gilb. Executions, 42; Doe v. Minthorne, 3 Up. Can. Q. B. 423 Accord].
[8 ]Campbell v. Point St. Works, 12 R. I. 452. McConnell v. Brown, 5 Mon. 478; [Farmers Bank v. Pryse, 25 Ky. L. Rep. 807] Accord. By statute or judicial legislation a different rule prevails in some jurisdictions. Doe v. Haskins, 15 Ala. 619; McGill v. Doe, 9 Ind. 306; Blanchard v. Taylor, 7 B. Mon. 645; Hanna v. Renfro, 32 Miss. 125, 130; Rogers v. Brown, 61 Mo. 187 (semble); Truax v. Thorn, 2 Barb. 156; Jarrett v. Tomlinson, 3 Watts & S. 114; Kelley v. Morgan, 3 Yerg. 437.
[1 ]Bract. 165 a; Bateman v. Allen, Cro. Eliz. 437, 438; Asher v. Whitlock, L. R. 1 Q. B. 1.
[2 ]Christy v. Alford, 17 How. 601; Weber v. Anderson, 73 Ill. 439.
[3 ]Asher v. Whitlock, L. R. 1 Q. B. 1; Haynes v. Boardman, 119 Mass. 414.
[4 ]1 Platt, Leases, 51.
[5 ]Watkins, Descents (4 ed.), 4, n. (c); Currier v. Gale, 9 All. 522. [Janes v. Holmden, (Kan. Ap.) 52 Pac. R. 913.]
[6 ]2 L. Q. Rev. 487, 488.
[7 ]Sheetz v. Fitzwalter, 5 Barr, 126; Talbot v. Chamberlain, 3 Paige, 219; Murray v. Emmons, 19 N. H. 483; [Switzer v. Skiles, 8 Ill. 529, 532; Richards v. Jenkins, 18 Q. B. Div. 451].
[8 ]Colgan v. Pellew, 48 N. J. 27; 49 N. J. 694.
[9 ]Hale v. Munn, 4 Gray, 132; McEntire v. Brown, 28 Ind. 347; Randolph v. Doss, 4 Miss. 205; 1 Scribner, Dower, 255, 256, 353, 354.
[10 ]Travis v. Continental Co., 32 Mo. Ap. 198, 206.
[11 ]Anon. Dy. 5, a.
[12 ]Y. B. 19 Hen. VI. 32-66.
[13 ]Hawksbee v. Hawksbee, 11 Hare, 230.
[14 ]Anstee v. Nelms, 1 H. & N. 225, 232; Asher v. Whitlock, L. R. 1 Q. B. 1; Board v. Board, L. R. 9 Q. B. 48; Dalton v. Fitzgerald,  2 Ch. 86,  1 Ch. 446.
[1 ]McConnaughy v. Wiley, 33 Fed. 449; Halleck v. Mixer, 16 Cal. 574, 579; Page v. Fowler, 28 Cal. 605, 39 Cal. 412; Martin v. Thompson, 62 Cal. 618; Groom v. Alstead, 101 Cal. 425; Ophir Co. v. Superior Court, 147 Cal. 468, 477; Anderson v. Hapler, 34 Ill. 436; Nichols v. Dewey, 4 All. 386, 387; Lehigh Co. v. N. J. Co. 55 N. J. 350; De Mott v. Hagerman, 8 Cow. 220; Van Etten v. Caines, 3 Keyes, 329, 333; Stockwell v. Phelps, 34 N. Y. 363; Samson v. Rose, 65 N. Y. 411, 419, 431 (semble); Hinton v. Walston, 115 N. Ca. 7; Mather v. Trinity Church, 3 S. & R. 509; Brown v. Caldwell, 10 S. & R. 114; Powell v. Smith, 2 Watts, 126; Nat. Co. v. Weston, 121 Pa. 485; Griffin v. Pipe Lines, 172 Pa. 580; Churchill v. Ackerman, 22 Wash. 227; Clark v. Clyde, 25 Wash. 661. The rule is otherwise in Michigan. McKinnon v. Master, 104 Mich. 642.
[2 ]Bigelow v. Jones, 10 Pick. 161; Stockman v. Phelps, 34 N. Y. 363; Baker v. Howell, 6 S. & R. 476 (semble).
[3 ]Brothers v. Hurdle, 10 Ired. 490; Branch v. Morrison, 5 Jones, (N. Ca.) 16; 6 Jones, (N. Ca.) 16; Roy v. Gardner, 82 N. Ca. 454; Lehman v. Kellerman, 65 Pa. 489 (overruling Elliott v. Powell, 10 Watts, 453). If, however, the disseisee recovers the seisin of the land he may proceed against the disseisor for the chattels or their value, being treated, by the fiction of relation, as if he had held the seisin all the time. But as this fiction of relation is based upon justice it will not be created to the prejudice of one who has bought the severed chattels of the disseisor without notice of the disseisin. Page v. Fowler, 39 Cal. 412; Johnston v. Fish, 105 Cal. 420; Brothers v. Hurdle, 10 Ired. 490, 492; Faulcon v. Johnston, 102 N. Ca. 264; Pac. Co. v. Isaacs (Oreg. 1908) 96 Pac. R. 460; Reilly v. Crown Co. 213 Pa. 595.
[4 ]1 Nich. Britt. 57, 116. The right of self-help in general was formerly greatly restricted. The disseisee’s right of entry into land was tolled after five days. If he entered afterwards, the disseisor could recover the land from him by assize of novel disseisin. Maitland, 4 L. Q. Rev. 29, 35. So the writ of ravishment of ward would lie against one entitled to the ward if he took the infant by force from the wrongful possessor. Y. B. 21 & 22 Ed. I. 554. The lord must resort to his action to recover his serf, if not captured infra tertium vel quartum diem. 4 L. Q. Rev. 31. A nuisance could be abated by act of the party injured, only if he acted immediately. Bract. f. 233; 1 Nich. Br. 403.
[5 ]Originally any taking without right, like killing by accident, was felonious. In Bracton’s time, if not earlier, the animus furandi was essential to a felony. Bract. f. 136 b.
[1 ]See cases cited supra, p. 543, n. 2.
[2 ]A case of the year 1199 (2 Rot. Cur. Reg. 34) seems to be the earliest reported instance of an action of trespass in the royal courts. Only a few cases are recorded during the next fifty years. But about 1250 the action came suddenly into great popularity. In the Abbreviatio Placitorum, twenty-five cases are given of the single year 1252-1253. We may infer that the writ, which had before been granted as a special favor, became at that time a writ of course. In Britton (f. 49), pleaders are advised to sue in trespass rather than by appeal, in order to avoid “la perilouse aventure de batayles.” Trespass in the popular courts of the hundred and county was doubtless of far greater antiquity than the same action in the Curia Regis. Several cases of the reign of Henry I. are collected in Bigelow, Placita Anglo-Normannica, 89, 89, 98, 102, 127.
[3 ]In early English law, as in primitive law in general, the principle of parsimony did not permit concurrent remedies. The lines were drawn between the different actions with great sharpness. The right to sue a trespasser in replevin and detinue was a later development, as will be explained further on.
[1 ]Y. B. 21 Ed. IV. 74-6. See to the same effect Bro. Ab. Ej. Cust. 8, and Tresp. 256; Y. B. 2 Ed. IV. 5-9, per Needham, J.; Y. B. 4 H. VII. 5-1; Y. B. 16 H. VII. 3, a-7; Staunf. Pl. Cor. 61, a; Harris v. Blackhole, Brownl. 26; [Day v. Austin, Ow. 70; Walgrave v. Skinner, Ow. 120].
[2 ]Bro. Ab. Tresp. 358.
[3 ]Y. B. 21 H. VII. 39-49. See also Y. B. 2 Ed. IV. 5-9. 2 Wms. Saund. 47 c; Wright & Pollock, Possession, 169.
[1 ]Bract. 161 b; Sparks Case, Cro. El. 676; Co. Lit. 57 a, n. (3); Booth, R. Act. (2d ed.) 285; 2 L. Q. Rev. 488; [1 Nich. Britt, 278, 287, Note in MS. N; Blunden v. Baugh, Cro. Car 302, 304].
[2 ]The conveyance was not necessarily coextensive with the acquisition. If the feoffment was for life the reversion was in the feoffor. Challis, R. Prop. 329.
[3 ]Ab. Pl. 265, col. 2, rot. 5; 5 Rot. Par. 139 b.
[4 ]Y. B. 20 H. VII. 1-1; Rex v. Cotton, Park. 113, 121.
[5 ]Accordingly, even after replevin became concurrent with trespass, if a plaintiff had both writs pending at once for the same goods, the second writ was abated for the “contrairiositie” of the supposal of the two writs. Y. B. 8 H. VI. 27-17; 22 H. VI. 15-26; 14 H. VII. 12-32.
[1 ]1 Nich. Britt. 138. “If the taker or detainer admit the bailiff to view and avow the thing distrained to be his property, so that the plaintiff has nothing therein, then the jurisdiction of the sheriff and bailiff ceases. And if the plaintiff is not villein of the deforceor, let him immediately raise hue and cry; and at the first county court let him sue for his chattel, as being robbed from him, by appeal of felony, if he thinks fit to do so.” Compare the case of an estray. 1 Nich. Britt. 68. “If the lord avow it to be his own, the person demanding it may either bring an action to recover his beast as lost, in form of trespass, or an appeal of larceny, by words of felony.”
[2 ]Y. B. 21 & 22 Ed. I. 106; Y. B. 32 & 33 Ed. I. 54. If the defendant, instead of claiming title in himself, alleged title in a third person, he could only defeat the action by proof of the fact alleged. Y. B. 32 Ed. I. 82; Y. B. 34 Ed. I. 148.
[3 ]Y. B. 5 Ed. III. 3-11. The argument of the defendant, “And although we are come to court on your suit, we shall not be in a worse plight here than before the sheriff; for you shall be driven to your writ of trespass or to your appeal, and this writ shall abate,” though supported by the precedents, was overruled. See also Y. B. 21 Ed. IV. 64 a-35, and Y. B. 26 H. VIII. 6-27. There is an echo of the old law in Y. B. 7 H. IV. 28 b-5. “And also it was said that if one claims property in court, against this claim the other shall not aver the contrary—credo quod non est lex.”
[1 ]Y. B. 1 Ed. IV. 9-18.
[2 ]Y. B. 7 H. IV. 28 b-5, per Gascoigne, C. J.; Y. B. 19 H. VI. 65-5, per Newton, C. J.; Y. B. 2 Ed. IV. 16-8, per Danby, C. J.; Y. B. 6 H. VII. 7-4, per Brian, C. J., and Vavasor, J.; Y. B. 14 H. VII. 12-22. In fact, there are no reported cases of replevin for trespass from the time of Edward III. to the present century. See Mellor v. Leather, 1 E. & B. 619. Almost at the same time that the scope of replevin was enlarged, there was a similar duplication of remedies against the disseisor of land. Originally, if we except the writ of right, the assize of novel disseisin (or writ of entry in the nature of assize), which was the counterpart of trespass de bonis asportatis, was the exclusive remedy against a disseisor. Trespass quare clausum fregit was confined to cases of entry not amounting to an ouster. If, therefore, the defendant in a writ of trespass claimed the freehold, the writ was abated. The plaintiff must proceed against him as a disseisor by the assize. 2 Br. Note Book, 378; Ab. Pl. 142, col. 1, rot. 9 ; Ab. Pl. 262, col. 1, rot. 18 . About 1340, trespass quare clausum was allowed for a disseisin. Y. B. 11 & 12 Ed. III. 503-505, 517-519; Y. B. 14 Ed. III. 231.
[3 ]Y. B. 19 H. VI. 65-5.
[4 ]Br. Ab. Replev. 39; Y. B. 6 H. VII. 8 b-4; Y. B. 14 H. VII. 12-22; Russell v. Pratt, 4 Leon. 44-46; Bishop v. Montague, Cro. Eliz. 824; Bagshaw v. Gaward, Yelv. 96; Coldwell’s Case, Clayt. 122, pl. 215; Power v. Marshall, 1 Sid. 172; 1 Roper, H. & W. (Jacob’s ed.) 169.
[1 ]Mennie v. Blake, 6 E. & B. 847.
[2 ]Y. B. 24 Ed. III. 41 a-22; Y. B. 43 Ed. III. 29-11; [Seld. Soc. Sel. Cas. Ch. No. 116]
[3 ]Y. B. 16 Ed. II. 490. But see Y. B. 9 H. V. 14-22.
[4 ]Y. B. 11 H. IV. 46 b-20; Y. B. 10 H. VII. 7-14.
[5 ]Y. B. 2 Ed. III. 2-5.
[6 ]Y. B. 6 H. VII. 9-4. See also 1 Ch. Pl. (7 ed.) 137.
[7 ]4 Leon. 44, 46.
[8 ]Ow. 70.
[1 ]Bishop v. Montague, Cro. El. 824, Cro. Jac. 50.
[2 ]Y. B. 2 Ed. IV. 16-8; Perk. § 92.
[3 ]Bro. Ab. Replev. 39.
[4 ]Y. B. 6 H. VII. 9-4.
[5 ]Y. B. 10 H. VII. 27-13.
[1 ]4 Leon. 44, 46. See also Rosse v. Brandstide, 2 R. & M. R. 438, 439; Benjamin v. Bank, 3 Camp. 417.
[2 ]Shep. Touch. (6 ed.) 240, 241.
[3 ]11 Ill. 558. To the same effect, Goodwyn v. Lloyd, 8 Port. 237; Brown v. Lipscomb, 9 Port. 472; Dunkin v. Williams, 5 Ala. 199; O’Keefe v. Kellogg, 15 Ill. 347; Taylor v. Turner, 87 Ill. 296 (semble); Stogdel v. Fugate, 2 A. K. Marsh. 136; Young v. Ferguson, 1 Litt. 298; Gardner v. Adams, 12 Wend 297; Morgan v. Bradley, 3 Hawks, 559; Stedman v. Riddick, 4 Hawks, 29; Overton v. Williston, 31 Pa. 155.
[1 ]Erickson v. Lyon, 26 Ill. Ap. 17.
[2 ]31 Pa. 155, 160.
[3 ]Staunf. Pl. Cor. 60, b.
[4 ]4 Ed. III. c. 7.
[5 ]Russell v. Pratt, 4 Leon. 44; Le Mason v. Dixon, W. Jones, 173.
[6 ]Y. B. 47 Ed. III. 23-55; Fitz. Ab. Replic. 70; Y. B. 7 H. VI. 35-36; Y. B. 28 H. VI. 4-19. See Hudson v. Hudson, Latch, 214.
[7 ]Fitz. Ab. Replic. 60.
[8 ]Finch, Law, Bk. 2, c. 15.
[1 ]Edwards v. Hooper, 11 M. & W. 363.
[2 ]“Where the conversion takes place before the bankruptcy, the assignees have a right of action, but have not the property in the goods.” Lord Abinger, in Edwards v. Hooper, 21 L. J. Ex. 304, 305. The learned Chief Baron evidently used “property” as Brian, C. J., did, in contradistinction to right of property.
[3 ]Y. B. 29 Lib. Ass. pl. 63. See also Y. B. 6 H. VII. 9-4, and 10 H. VII. 27-13.
[1 ]“If the beasts of my villein are taken in name of distress, I shall have a replevin, although I never seized them before, for the property is in my villein, so that suing of this replevin is a claim which vests the property in me. But it is otherwise if he who took the beasts claimed the property.” Fitz. Ab. Replevin, 43. Coke, following Fitzherbert, says: “If the goods of the villein be taken by a trespass, the lord shall have no replevin, because the villein had but a right” Co. Lit. 145 b.
[2 ]Fitz. Ab. Replevin, 43.
[3 ]Gilb. Eq. 234. See also Co. Lit. 351 a, b; 4 Vin. Ab. 53; Y. B. 20 Ed. I. 174; Milne v. Milne, 3 T. R. 627.
[4 ]Magee v. Toland, 8 Port. 36 (semble); McNeil v. Arnold, 17 Ark. 154, 178 (semble); Fightmaster v. Beasley, 1 J. J. Marsh. 606; Duckett v. Crider, 11 B. Mon. 188, 191 (semble); Sallee v. Arnold, 32 Mo. 532, 540 (semble); Johnston v. Pasteur, Cam. & Nor. 464; Norfeit v. Harris, Cam. & Nor. 517; Armstrong v. Simonton, 2 Tavl. 266, 2 Murph. 351, s. c.; Spiers v. Alexander, 1 Hawks, 67, 70 (semble); Ratcliffe v. Vance, 2 Mill, Const. R. 239, 242 (semble); Harrison v. Valentine, 2 Call, 487, cited. See also 1 Bishop, Mar. Wom. § 71. But see contra, Wellborne v. Weaver, 17 Ga. 267, 270 (semble); Pope v. Tucker, 23 Ga. 484, 487 (semble).
[1 ]Freeman, Executions (2d ed.), s. 112. See to the same effect Wier v. Davis, 4 Ala. 442; Horton v. Smith, 8 Ala. 900; Doe v. Haskins, 15 Ala. 620, 622 (semble); Thomas v. Thomas, 2 A. K. Marsh. 430; Commw. v. Abell, 6 J. J. Marsh. 476.
[2 ]Bro. Ab. Tresp. 433; Maynard v. Bassett, Cro. El. 819; Woadson v. Newton, 2 Str. 777.
[3 ]James v. Pritchard, 7 M. & W. 216; Bigelow, Estoppel (4th ed.), 489, 490; Bohannon v. Chapman, 17 Ala. 696.
[4 ]Shelbury v. Scotsford, Yelv. 23; Bigelow, Estoppel, 490; [Y. B. 5 Hen. VII 15-5].
[5 ]Norment v. Smith, 1 Humph. 46 and Moffatt v. Buchanan, 11 Humph. 369, are contra. But these decisions seem indefensible.
[6 ]Supra, p. 24, n. 3; Y. B. 6 H. VII. 9-4.
[7 ]Hodges v. Sampson, W. Jones, 443; Keyworth v. Hill, 3 B. & Ald. 685. In Tobey v. Smith, 15 Gray, 535, a count alleging a conversion by the wife of A to their use was adjudged bad on demurrer. The conversion should have been laid to the use of the husband only.
[1 ]2 Bl. Com. 199. See also ibid. 196: “And, at all events, without such actual possession no title can be completely good.”
[1 ]Perrot v. Austin, Cro. El. 222; Cover v. Stem, 67 Md. 449.
[2 ]After a time the chancellors gave relief by compelling life tenants to give bonds that the reversioners and remaindermen should have the chattels. Warman v. Seaman, Freem. C. C. 306, 307; Howard v. Duke of Norfolk, 2 Sw. 464; 1 Fonb. Eq. 213, n.; [Cole v. Moore, Moo. 806]. And now either in equity or at law the reversioners and remaindermen are amply protected. The learning on this point, together with a full citation of the authorities, may be found in Gray, Perpetuities, §§ 78-98.
[1 ]Co. Lit. 274 a, Butler’s note .
[2 ]Co. Lit. 9 b.
[3 ]Supra, 27, 38.
[4 ]A woman by marrying her bailee or debtor extinguished the bailment or debt. Y. B. 21 H. VII. 29-4.
[1 ]Burgess v. Wheate, 1 W. Bl. 123; Ames, Cas. on Trusts, 501, 511, n. 1. By St. 47 and 48 Vict. c. 71, § 4, equitable interests do now escheat. It has been urged by Mr. F. W. Hardman, with great ability, that a trust in land ought to have been held to pass to the sovereign after the analogy of bona vacantia. 4 L. Q. Rev. 330-336. And this view has met with favor in this country. Johnston v. Spicer, 107 N. Y. 185; Ames, Cas. on Trusts, 511, n. 1.
[2 ]The writer regrets to find himself in disaccord upon this point with the opinion expressed incidentally by Professor Langdell, in his Summary of Equity Pleading (2 ed.), § 122.
[1 ]Bract. 52 a.
[2 ]2 Bl. Com. 196; see also 3 Bl. Com. 196; 1 Hayes, Conveyancing (5 ed.), 270; Stokes v. Berry, 2 Salk. 421, per Lord Holt. Butler’s note in Co. Lit. 239 a is as follows: “But if A. permits the possession to be withheld from him [by B.] beyond a certain period of time, without claiming it . . . B.’s title in the eye of the law is strengthened, and A. can no longer recover by a possessory action, and his only remedy then is by an action on the right . . . so that if he fails to bring his writ of right within the time limited for the bringing of such writs, he is remediless, and the title of the dispossessor is complete.”
[3 ]Taylor v. Horde, 1 Burr. 60, 119. [See Leffingwell v. Warren, 2 Black, 599, 605, per Swayne J.; Davis v. Mills, 194 U. S. 451, 456-7 per Holmes J.; Moore v. Luce, 29 Pa. 260, 262, per Lewis C. J.]
[4 ]Cholmondeley v. Clinton, 2 Jac. & W. 1, 156.
[1 ][“The idea that the title to property can survive the loss of every remedy known to the law for reducing it to possession and enjoyment would seem to have but small support in logic or reason.” Per O’Brien J. in Baker v. Oakwood, 123 N. Y. 16, 26.] The notion that a debt survives the extinction of all remedies for its enforcement is peculiar to English and American law, and even in those systems cannot fairly be deduced from the authorities commonly cited in its support. It is not because the debt continues, that a new promise to pay a debt barred by the statute is binding; but because the extinguishment of the creditor’s right is not equivalent to performance by the debtor. The moral duty to pay for the quid pro quo remains, and is sufficient to support the new promise. It is because this moral duty remains that the debtor, though discharged from all actions, cannot, without payment, recover any security that the creditor may hold. Again, it has been urged that the statute affects the remedy, but not the right, because the lapse of the statutory time in the jurisdiction of the debtor is no bar to an action in another jurisdiction. But this rule admits of another explanation. A debt being transitory, a creditor has an option, from the moment of its creation, to sue the debtor wherever he can find him. The expiration of the period of limitation in one jurisdiction, before he exercises his option, has no effect upon his right to sue elsewhere. But it extinguishes his right to sue in the jurisdiction where the statute has run, and a subsequent repeal of the statute will not revive it. Cooley, Const. Lim. 365. The case of Campbell v. Holt, 115 U. S. 620, contra, stands almost alone.
[2 ][This statement is too sweeping. A conveyance by A of Blackacre, wholly surrounded by other land of A, would give the grantor by implication a way of necessity across the surrounding land. But a disseisor of Blackacre acquires no way of necessity. Wilkes v. Greenway, 6 T. L. R. 449; McLaren v. Strachan, 23 Ont. L. R. 120, n.]
[3 ]Sanders v. Sanders, 19 Ch. Div. 373; Hobbs v. Wade, 36 Ch. D. 553; Jack v. Walsh, 4 Ir. L. R. 254; Doe v. Henderson, 3 Up. Can. Q. B. 486; McIntyre v. Canada Co., 18 Grant, Ch. 367; Bird v. Lisbros, 9 Cal. 1, 5 (semble); School District v. Benson, 31 Me. 381; Austin v. Bailey, 37 Vt. 219; Hodges v. Eddy, 41 Vt. 485; [Kibble v. Fairthorne  1 Ch. 219; Jones v. Williams, 108 Fla. 282; Parham v. Dedman, 66 Ark. 26; Shirley v. Whitlow, 80 Ark. 444; Hudson v. Stilwell, 80 Ark. 575; Brown v. Cockerell, 33 Ala. 38; Todd v. Kauffman, 19 Dist. Col. 304; Ill. Co. v. Wakefield, 173 Ill. 565; Riggs v. Riley, 113 Ind. 208; Bunce v. Bidwell, 43 Mich. 542; Sage v. Rudnick, 67 Minn. 362; Allen v. Mansfield, 82 Mo. 688; Sailor v. Hertzogg, 2 Barr, 182, 184; Bradford v. Guthrie, 4 Brewst. (Pa.) 351, 361; Bruce v. Washington, 80 Tex. 368; Hughes v. Graves, 39 Vt. 359, 365; McDonald v. McIntosh, 8 Up. Can. Q. B. 388].
[1 ]Scott v. Nixon, 3 Dr. & War. 388, 405; Sands v. Thompson, 22 Ch. D. 614; Games v. Bonnor, 54 L. J. Ch. 517; [Cox v. Cox, 7 Dist. Col. 1; Crowell v. Druley, 19 Ill. Ap. 509; Tewksbury v. Howard, 138 Ind. 103; Foreman v. Wolf (Md. 1894), 29 Att. R. 837; Trustees v. Hilken, 84 Md. 170; Erdman v. Corse, 87 Md. 506; Regents v. Calvary Church, 104 Md. 635; Dickerson v. Kirk, 105 Md. 638; Ballou v. Sherwood, 32 Neb. 667; Barnard v. Brown, 112 Mich. 452; Seymour v. DeLancey, Hopk. 436; Murray v. Harway, 56 N. Y. 337, 344; Shriver v. Shriver, 86 N. Y. 575; Ottinger v. Strasburger, 33 Hun. 466 affd. 102 N. Y. 692; O’Connor v. Huggins, 113 N. Y. 511; Pell v. Pell, 65 N. Y. Ap. Div. 388; Pratt v. Eby, 67 Pa. 396; Shober v. Dutton, 6 Phila. 185].
[2 ]Campbell v. Holt, 115 U. S. 620, 622 (semble); Trim v. McPherson, 7 Cold. 15; Grigsby v. Peak, 57 Tex. 142; Sprecker v. Wakely, 11 Wis. 432; Hill v. Kricke, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245; [Hall v. Webb, 21 W. Va. 320; McEldowney v. Webb. 44 W. Va. 711].
[3 ]Brassington v. Llewellyn, 27 L. J. Ex. 297; Bryan v. Cowdal, 21 W. R. 693; Rains v. Buxton, 14 Ch. D. 537; Groome v. Blake, 8 Ir. C. L. 3 Ont. R. 26; Holtzapple v. Phillibaum, 4 Wash. 356; Barclay v. Smith, 66 Ala. 230 (semble); Jacks v. Chaffin, 34 Ark. 534; Clarke v. Gilbert, 39 Conn. 94; Doe v. Lancaster, 5 Ga. 39; McDuffee v. Sinnott, 119 Ill. 449; Brown v. Anderson, 90 Ind. 93; Chiles v. Jones, 4 Dana, 479; Armstrong v. Risteau, 5 Md. 256; Littlefield v. Boston, 146 Mass. 268; Jones v. Brandon, 59 Miss. 585; Biddle v. Mellon, 13 Mo. 335; Jackson v. Oltz, 8 Wend. 440; Pace v. Staton, 4 Ired 32; Pederick v. Searle, 5 S. & R. 236; Abel v. Hutto, 8 Rich. 42; [Stokes v. Berry, 2 Salk. 421; Midland Co. v. Wright , 1 Ch. 735 (injunction against disseisee); Hackett v. Marmet Co., 52 Fed. 269; So. Dist. v. Blakeslee, 13 Conn. 227; Montgomery v. Robinson, 4 Del. Ch. 490 (injunction against disseisee); Paulin v. Hale, 40 Ill. 274; McDuffie v. Sinnott, 119 Ill. 449; Faloon v. Simshauser, 130 Ill. 649; Donahue v. Ill. Co. 165 Ill. 640; Bradley v. Lightcap, 202 Ill. 154; Axmear v. Richards, 112 Iowa 657 (injunction against disseisee); Roberts v. Sanders, 3 A. K. Marsh. 25; Doe v. Fletcher, 37 Md. 480; Waltemeyer v. Baughman, 63 Md. 200; Shock v. Falls City, 31 Neb. 599 (injunction against disseisee); City v. White (Neb. 1897); 70 N. W. R. 50; Rice v. Kelly (Neb. 1908) 115 N. W. R. 625; Davock v. Nealon, 58 N. J. 21; Spottiswoode v. Morris Co., 61 N. J. 322, 63 N. J. 667; Jackson v. Dieffendorf, 3 Johns. 269; Barnes v. Light, 116 N. Y. 34; Eldridge v. Kenning, 35 N. Y. St. Rep. 190 (injunction against disseisee); Schall v. Williams Co., 35 Pa. 191, 204; MacGregor v. Thompson, 7 Tex. Civ. Ap. 32].
[1 ]Low v. Morrison, 14 Grant, Ch. 192; Pendleton v. Alexander, 8 Cranch, 462; Arrington v. Liscom, 34 Cal. 365; Tracy v. Newton, 57 Iowa, 210; Rayner v. Lee, 20 Mich. 384; Stettnische v. Lamb, 18 Neb. 619; Watson v. Jeffrey, 39 N. J. Eq. 62; Parker v. Metzger, 12 Oreg. 407; [Sharon v. Tucker, 144 U. S. 392; Marston v. Rowe, 39 Ala. 722; Van Etten v. Daugherty, 83 Ark. 534; Echols v. Hubbard, 90 Ala. 309; Norman v. Eureka Co., 98 Ala. 181; Torrent Co. v. Mobile, 101 Ala. 559; McCormack v. Silsby, 82 Cal. 72; Baker v. Clark, 128 Cal. 181; Roberson v. Downing Co., 120 Ga. 833; Bellefontaine Co. v. Niedringhaus, 181 Ill. 426; Wilson v. Campbell, 119 Ind. 286; Indep. Dist. v. Fagen, 94 Iowa, 676; Severson v. Gremm, 124 Iowa, 729; Jenkins v. Dewey, 49 Kan. 49; Farmer v. Farmer, 19 Ky. L. Rep. 243; Asher Co. v. Clemmons, 23 Ky. L. Rep. 771; Gardner v. Terry, 99 Mo. 523; McKee v. Gardner, 131 Mo. 599 (semble); Peterson v. Townsend (Neb. 1890) 46 N. W. R. 526; Nash v. Lead Co., 15 N. Dak 566; Moody v. Holcomb, 26 Tex. 714; Bellingham v. Dibble, 4 Wash. 764; Pitman v. Hill, 117 Wis. 318; Clithero v. Fenner, 122 Wis. 356].
[2 ]Nelson v. Brodhack, 44 Mo. 596; Fulkerson v. Mitchell, 82 Mo. 13; Hill v. Bailey, 8 Mo. Ap. 85; Staley v. Housel, 35 Neb. 160; Murray v. Romine, 60 Neb. 94; Link v. Campbell, (Neb. 1905) 104 N. W. R. 939; Furman v. Sprague, 82 N. Ca. 366; Cheetham v. Young, 113 N. Ca. 161. But see Ten Eyck v. Witbeck, 55 N. Y. Ap. Div. 165; Udell v. Stearns, 125 N. Y. Ap. Div. 196.
[3 ]Ex parte Drake, 5 Ch. Div. 866, 868; Chapin v. Freeland, 142 Mass. 383; cases cited infra, n. 4. [“In order to make the title perfect, there must have been something in the nature of an adverse possession for more than six years; then, indeed, the party would have a right to the chattel,” per Pollock C. B. in Plant v. Cockerill, 5 H. & N., 430, 439-440. See also Davis v. Mills, 194 U. S. 451, 457, per Holmes, J.]
[1 ]Morris v. Lyon, 84 Va. 331.
[2 ]Campbell v. Holt, 115 U. S. 623 (semble); Jones v. Jones, 18 Ala. 245, 253 (semble); Davis v. Minor, 2 Miss. 183, 189-90 (semble); Power v. Telford, 60 Miss. 195 (semble); Moore v. State, 43 N. J. 203, 206 (semble); Yancy v. Yancy, 5 Heisk, 353; Brown v. Parker, 28 Wis. 21, 28 (semble).
[3 ]Brent v. Chapman, 5 Cranch, 358; Shelby v. Guy, 11 Wheat, 361 (semble); Howell v. Hair, 15 Ala. 194; Sadler v. Sadler, 16 Ark. 628; Wynn v. Lee, 5 Ga. 217 (semble); Robbins v. Sackett, 23 Kas. 301; Stanley v. Earl, 5 Litt. 281; Smart v. Baugh, 3 J. J. Marsh, 363 (semble); Clarke v. Slaughter, 34 Miss. 65; Chapin v. Freeland, 142 Mass. 383 (Field, J., diss.); Baker v. Chase, 55 N. H. 61, 63 (semble); Powell v. Powell, 1 Dev. & B. Eq. 379; Call v. Ellis. 10 Ired, 250; Cockfield v. Hudson, 1 Brev. 311; Gregg v. Bigham, 1 Hill (S. Ca.), 299; Simon v. Fox, 12 Rich. 392; McGowan v. Reid, 27 S. Ca. 262, 267 (semble); Kegler v. Miles, Mart. & Y. 426; Partee v. Badget, 4 Yerg. 174; Wheaton v. Weld, 9 Humph. 773; Winburn v. Cochran, 9 Tex. 123; Connor v. Hawkins, 71 Tex. 582; Preston v. Briggs, 16 Vt. 124, 130; Newby v. Blakey, 3 Hen. & M. 57; [Hicks v. Fluitt, 21 Ark. 463; Currier v. Studley, 159 Mass. 17; Pate v. Hazell, 107 N. Ca. 189 (semble); Ingram v. Foster, 4 McC. 198; Waters v. Barton, 1 Cold. 450; Bowyer v. Robertson, (Tex. Civ. Ap. 1895) 29 S. W. R. 916].
[4 ]Altoona Co. v. R. R. Co. (Pa. 1902) 52 Atl. R. 6.
[5 ]Shelby v. Guy, 11 Wheat. 361; Goodman v. Munks, 8 Port. 84, 94-5; Howell v. Hair, 15 Ala. 194 (semble); Newcombe v. Leavitt, 22 Ala. 631; Wynn v. Lee, 5 Ga. 217; Broh v. Jenkins, 9 Mart. 526 (semble); Davis v. Minor, 2 Miss. 183 (semble); Fears v. Sykes, 35 Miss. 633; Moore v. State, 43 N. J. 203, 205, 208 (semble); Alexander v. Burnet, 5 Rich. 189 (semble); Sprecker v. Wakeley, 11 Wis. 432, 440 (semble); [Cargile v. Harrison, 9 B. Mon. 518, 521 (semble); Waters v. Barton, 1 Cold 450].
[6 ]Garth v. Barksdale, 5 Munf. 101.
[1 ]Campbell v. Holt, 115 U. S. 623 (semble); Smart v. Baugh, 3 J. J. Marsh. 363; Smart v. Johnson, 3 J. J. Marsh. 373; Duckett v. Crider, 11 B. Mon. 188; Elam v. Bass, 4 Munf. 301; [Lay v. Lawson, 23 Ala. 377; Traun v. Keiffer, 31 Ala. 136].
[2 ]Ancestor and heir. Doe v. Lawley, 13 Q. B. 954; Clarke v. Clarke, Ir. R. 2 C. L. 395; Currier v. Gale, 9 All. 522; Duren v. Kee, 26 S. Ca. 224; [Doe v. Fletcher, 37 Md. 430; Wickes v. Wickes, 98 Md. 307; Alexander v. Gibbon, 118 N. Ca. 796; Epperson v. Stansill, 64 S. Ca. 485; Bardin v. Commercial Co., (S. Ca. 1909) 64 S. E. R. 165; Corder v. Dolin, 4 Baxt. 238].
[1 ]Bohannon v. Chapman, 17 Ala. 696; Newcombe v. Leavitt, 22 Ala. 631; Shute v. Wade, 5 Yerg. 1, 12 (semble); Norment v. Smith, 1 Humph. 46, 48 (semble); [Hicks v. Fluitt, 21 Ark. 463; Dragoo v. Cooper, 9 Bush, 629; Thornburg v. Bowen, 37 W. Va. 538] (but see Wells v. Ragland, 1 Swan, 501; Hobbs v. Ballard, 5 Sneed, 395), (Accord
[1 ]Doe v. Carter, 9 Q. B. 863; [Willis v. Howe, , 2 Ch. 545, 553;] Kipp v. Synod, 33 Up. Can. Q. B. 220; Fanning v. Willcox, 3 Day, 258; Smith v. Chapin, 31 Conn. 530 (semble); Shannon v. Kinny, 1 A. K. Marsh. 3; Hord v. Walton, 2 A. K. Marsh. 620; [Wishart v. McKnight, 178 Mass. 356 (explaining the misunderstood case of Sawyer v. Kendall, cited in the next note)]; Fitzrandolph v. Norman, 2 Tayl. 131; Candler v. Lunsford, 4 Dev. & B. 407; Davis v. McArthur, 78 N. C. 357; Cowles v. Hall, 90 N. C. 330. See, also, 1 Dart, V. & P. (6 ed.) 464-6; Pollock and Wright, Possession, 23.
[2 ]San Francisco v. Fulde, 37 Cal. 349; Doe v. Brown, 4 Ind. 143 (semble); Sawyer v. Kendall, 10 Cush. 241; Witt v. St. Paul Co., 38 Minn. 122 (semble); Locke v. Whitney, 63 N. H. 597 (semble); Jackson v. Leonard, 9 Cow. 653; Moore v. Collishaw, 10 Barr, 224; Shrack v. Zubler, 34 Pa. 38; Erck v. Church, 87 Tenn. 575; Graeven v. Dieves, 68 Wis. 317 (semble). See, also, Riopelle v. Hilman, 23 Mich. 33.
[1 ]Brandt v. Ogden, 1 Johns. 156; Malloy v. Bruden, 86 N. C. 251; Taylor v. Burnside, 1 Grat. 165. See, also, Brown v. Hanauer, 48 Ark. 277.
[2 ]Agency Co. v. Short, 13 App. Cas. 793; [Solling v. Broughton,  A. C. 556, 561; Louisville Co. v. Philyan, 88 Ala. 264, 268; Downing v. Magee, 153 Ill. 330, 335; Wishart v. McKnight, 178 Mass. 356, 360; Cunningham v. Patton, 6 Barr, 355, 358, 359; Jarrett v. Stevens, 36 W. Va. 445, 450].
[3 ]It is a significant fact that in most of these cases Brandt v. Ogden, 1 Johns. 156, a case where the adverse possession was not continuous, was cited as a decision in point.
[1 ]In Norment v. Smith, 1 Humph. 46; Moffatt v. Buchanan, 11 Humph. 369; Wells v. Ragland, 1 Swan. 501; Hobbs v. Ballard, 5 Sneed, 395, there was in fact a privity; but the court thought otherwise, and accordingly disallowed tacking, as the same court denies the right to tack in the case of land if there is no privity.
[2 ]Ex parte Drake, 5 Ch. Div. 866; Re Scarth, 10 Ch. 234; Eberle Co. v. Jones, 18 Q. B. Div. 459; Sharpe v. Gray, 5 B. Mon. 4; Norrill v. Corley, 2 Rich. Eq. 288, n. (a).
[3 ]Lacon v. Barnard, Cro. Car. 35; Put v. Rawsterne, T. Ray. 472, 2 Show. 211 (semble); Hitchin v. Campbell, 2 W. Bl. 827; Lovejoy v. Wallace, 3 Wall. 1, 16 (semble); Barb v. Fish, 8 Black, 481; Rembert v. Hally, 10 Humph. 513. Serjeant Manning’s Note, 6 M. & G. 160, n. a; Daniel v. Holland, 4 J. J. Marsh, 18, 26; Woolley v. Carter, 2 Halst. 85; Outcalt v. Durling, 1 Dutch. 443; Dietz v. Field, (N. Y. Ap. Div. 1896) 41 N. Y. S. 1087 (but see Union Co. v. Schiff, 78 Fed. 216, 86 Fed. 1023). Similarly, if the converted chattel has been sold, the owner, by recovering a judgment in assumpsit, extinguishes all his other remedies against the converter. Smith v. Baker, L. R. 8 C. P. 350 (semble); Bradley v. Brigham, 149 Mass. 141, 144-5; Boots v. Ferguson, 46 Hun, 129; Wright v. Ritterman, 4 Rob. 704.
[4 ]The chattel may therefore be taken on execution by a creditor of the converter. Rogers v. Moore, Rice, 60; Norrill v. Corley, 2 Rich. Eq. 288, n. (a); Foreman v. Neilson, 2 Rich. Eq. 287. See, also, Morris v. Beckley, 2 Mill, C. R. 227. [But compare Bush v. Bush, 1 Strob. Eq. 377.] A purchaser from a converter after judgment should take a perfect title. Goff v. Craven, 34 Hun, 150, contra, would seem to be a hasty decision. [If, after a judgment against a converter, but before its satisfaction, the dispossessed owner retakes the chattel, the converter, upon satisfying the judgment may maintain trover against the former owner. Smith v. Smith, 51 N. H. 571. This decision as well as that in Hepburn v. Sewell, 5 Har. & J. 211 was based upon the doctrine of relation, by which the converter’s title, after satisfaction of the judgment, was made to relate back to the date of his conversion. The decision seems to be correct, but the doctrine of relation seems far fetched and has been deservedly criticised by Holmes J. in Miller v. Hyde, 161 Mass. 472, 481.]
[1 ]Matthews v. Menedger, 2 McL. 145; Spivey v. Morris, 18 Ala. 254; Dow v. King, 52 Ark. 282; Atwater v. Tupper, 45 Conn. 144; Sharp v. Gray, 5 B. Mon. 4; Osterhout v. Roberts, 8 Cow. 43; [Ledbetter v. Embree (Ind. 1895) 40 N. E. R. 928]. But see contra, Marsh v. Pier, 4 Rawle, 273, 286 (semble); Fox v. Northern Liberties, 3 W. & S. 103, 106 (semble); Wilburn v. Bogan, 1 Speer, 179.
[2 ]Morris v. Robinson, 2 B. & C. 196.
[3 ]Cooper v. Shepherd, 3 C. B. 266.
[1 ]Lovejoy v. Murray, 3 Wall. 1; Elliot v. Porter, 5 Dana, 299; Elliott v. Hayden, 104 Mass. 180; Floyd v. Brown, 1 Rawle, 121 (semble); Fox v. Northern Liberties, 3 W. & S. 103 (semble); Sanderson v. Caldwell, 2 Aik. 195; [Sessions v. Johnson, 95 U. S. 347, 349; Birdsell v. Shaliol, 112 U. S. 485, 489; Knight v. Nelson, 117 Mass. 488; Miller v. Hyde, 161 Mass. 472; Tolman v. Waite, 119 Mich. 341; Hyde v. Noble, 13 N. H. 494; Osterhout v. Roberts, 8 Cow. 43; Russell v. McCall, 141 N. Y. 437; Turner v. Brook, 6 Heisk. 50].
[2 ]The writer has discovered a further illustration, which should be added to those given in a preceding number of this Review, in support of the principle that a wrongful possessor acquires title whenever the injured owner’s right of action is barred. If a disseisee levied a fine, nothing passed to the conusee, but the fine barred the conusor’s right. The disseisor, therefore, gained an absolute title. 2 Prest. Abs. 206.
[1 ]The ancient appeals of battery, mayhem, imprisonment, robbery, and larceny were actions for vengeance, and from their strictly personal character naturally died with the party injured. Trespass for a personal injury, and de bonis asportatis, and quare clausum fregit, being for the recovery of damages only, also came within the maxim actio personalis moritur cum persona. By St. 4 Edw. III., c. 7, an executor was allowed to recover damages for goods taken from the testator by a trespass. And such has been the elasticity of this statute that under it actions for a conversion, for a false return, for infringement of a trademark, for slander of title, for deceit,—in short, actions for any tort whose immediate effect is an injury to or a diminution of another’s property, have been held to survive. But not actions for torts which directly affect the person or reputation, and only indirectly cause a loss of property. In the United States the argument that a wrong-doer ought not to profit by the death of his victim, has led to legislation greatly increasing the actions that survive.
[2 ]Attornment was necessary before the conusee could distrain or bring an action against the tenant for services or rent. But the tenant could be compelled to attorn by the writs Quid juris clamat, and Per quæ servitia. 2 Nich. Britt. 46-48.
[3 ]Y. B. 19 H. VI. 24-47; Co. Lit. 322 a.
[1 ]1 Nich. Britt. 269-270; Maund’s Case, 7 Rep. 28 b; Co. Lit. 144, Butler’s note ; Scott v. Lunt, 7 Pet. 596.
[2 ](1233) 2 Bract. Note Book, pl. 804; Y. B. 21 Edw. I. 137; Old Nat. Br., Rast. L. Tr. 67; Fitz. Nat. Br. 145.
[3 ](1233) 2 Bract. Note Book, pl. 804; Bract. f. 37 b, 381 b, 390, 391; 1 Nich. Britt. 255-256; (1285) Fitz. Ab. Garr. 93. These citations from Bracton are hardly reconcilable with the interpretation which Mr. Justice Holmes has given in “The Common Law” (pp. 373-4) of an obscure and possibly corrupt passage in Bracton, f. 17 b. In view of Professor Brunner’s investigations (Zeitschrift f. d. gesammte Handelsrecht, Vol. 22, p. 59, and Vol. 23, p. 225), the distinguished judge would doubtless be among the first to correct his remark on p. 374: “By mentioning assigns the first grantor did not offer a covenant to any person who would thereafter purchase the land.”
[4 ]Lampet’s Case, 10 Rep. 48 a.
[5 ]“But in regard to choses in action, as the same doctrine has been adopted in every other state of Europe, it may be doubted whether the reason, which has been the foundation of the rule everywhere else, was not also the reason for its introduction in this country; namely, that the credit being a personal right of the creditor, the debtor being obliged toward that person could not by a transfer of the credit, which was not an act of his, become obliged towards another.” 2 Spence, Eq. Jur. 850. See also Pollock, Contracts (5 ed.), 206; Holmes, Common Law, 340-341; Maitland, 2 L. Q. Rev. 495.
[6 ]Supra, 315.
[1 ]In general, whatever would survive to an executor passes to the assignee of a bankrupt.
[1 ]The rationale of this doctrine is as follows: The so-called assignee of a claim is in reality an attorney with a power to sue for his own use. Being thus dominus of the chose in action, he enters into a bilateral contract with the obligor, promising the latter never to enforce his claim in return for the obligor’s promise to pay him what is due thereon. This promise of perpetual forbearance operates as an equitable release of the old claim, and also as a consideration for the obligor’s new promise.
[2 ]In 1 Lilly’s Ab. 125, it is said: “A statute merchant or staple, or bond, etc., can not be assigned over to another so as to vest an interest whereby the assignee may sue in his own name, but they are every day transferred by letter of attorney, etc. Mich. 22 Car. B. R.” See also Deering v. Carrington, 1 Lilly, Ab. 124; Shep. Touchst. (6 ed.) 240; 2 Blackst. Com. 442; Leake, Cont. (2 ed.) 1183; Gerard v. Laws, L. R. 2 C. P. 308, 309, per Willes, J. These letters of attorney for the attorney’s own use, whether borrowed from the similar procuratio in rem suam of the Roman law or not, are of great antiquity. (1309) Riley, Memorials of London, 68. “Know ye that I do assign and attorn in my stead E., my dear partner, to demand and receive the same rent of forty shillings with the arrears and by distress the same to levy in my name . . . and all things to do as to the same matter for her own profit as well as ever I myself could have done in my own proper person.” See also West, Symbol. § 521.
[3 ]Y. B. 9 H. VI. 64-17; Y. B. 34 H. VI. 30-15; Y. B. 37 H. VI. 13-3; Y. B. 15 H. VII. 2-3; Penson v. Hickbed (1588), 4 Leon. 99, Cro. Eliz. 170; South v. March (1590), 3 Leon. 234; Harvey v. Bateman (1600), Noy, 52; Barrow v. Gray (1600), Cro. Eliz. 551; Loder v. Chesleyn (1665), 1 Sid. 212; Note (1667-1772), Freem. C. C. 145. See also Pollock, Cont. (5 ed.) 701; 1 Harv. L. Rev. 6, n. 2.
[1 ]Formerly an express power of attorney was indispensable (Mallory v. Lane, Cro. Jac. 342), the notion of an implied power being as much beyond the conception of lawyers three centuries ago as the analogous idea of an implied promise. 2 Harv. L. Rev. 52, 58. To-day, of course, the power will be implied from circumstantial evidence. [Formerly a deed could not be delivered in escrow without express words to that effect. Bowker v. Burdekin, 11 M. & W. 128, 147.]
[2 ]Accordingly an assignment in New York, where, by statute, actions must be brought by the real party in interest, did not enable the assignee to sue in Massachusetts, when the old rule that an assignee must sue in the assignor’s name prevailed. Leach v. Greene, 116 Mass. 534; Glenn v. Busey, 5 Mack. 733. If the statute truly effected a change of title, the assignee, like the indorsee of a bill, could sue in his own name anywhere.
[3 ]The assignee of an equitable chose in action, e. g., a trust, of course sues in his own name without the aid of a statute. But here, too, there is no novation. If the Hibernicism may be pardoned, the assignee of a trust, like an attorney, stands in the place of his assignor, but does not displace him. A release from the assignor to the innocent trustee frees the latter’s legal title from the equitable incumbrance. Newman v. Newman, 28 Ch. D. 674. So, if a cestui que trust should assign his trust first to A. and then to B., and B. should, in good faith, obtain a conveyance of the legal title from the trustee, he could hold it against A. What is true of the equitable trust is equally true of the analogous legal bailment. By judicial legislation the purchaser from a bailor is allowed to proceed in his own name against the bailee. But a bailee who, for value and in ignorance of the bailor’s sale of his interest, receives a release from the latter, may keep the chattel. [If a bailee, in ignorance of a sale by the bailor, should deliver the goods to the bailor or to some person designated by the bailor, he could not be charged by the bailor’s vendee. He would simply have performed his contract according to its tenor. Saxeby v. Wynne, 3 Stark. Ev. (3d ed.) 1159; Glynn v. E. I. Co. 7 App. Cas. 591; Jones v. Hodgkins, 61 Me. 480; Woods v. McGee, 7 Oh. 127 (as explained in Newhall v. Langdon, 39 Oh. St. 87, 92; McGee v. French, 49 S. Ca. 452 (semble);] and if a bailor should sell his interest successively to A. and B., and B. should obtain possession from the bailee, A. could not recover the chattel from B. Upon principle and by the old precedents the bailor’s interest is no more transferable than that of a creditor. Y. B. 22 Ed. IV. 10-29; Wood v. Foster, 1 Leon. 42, 43, pl. 54; Marvyn v. Lyds, Dy. 90 b, pl. 6; [Rich v. Aldred 6 Mod. 216]; 2 Blackst. Com. 453. As late as 1844, that great master of the common law, Mr. Baron Parke, ruled that a purchaser from a pledgor could not maintain an action in his own name against the pledgee. The court in banc reversed this ruling. Franklin v. Neate, 13 M. & W. 481. [See also Goodman v. Boycott, 2 B. & S. 1; Bristol Bank v. Midland Co.  2 Q. B. 653.] The innovation has been followed in this country. Carpenter v. Hale, 8 Gray, 157; Hubbard v. Bliss, 12 All. 590; Meyers v. Briggs, 11 R. I. 180; [Jack v. Eagles, 2 All. (N. B.) 95].
[1 ](1134) 1 Rot. Cur. Reg. 42, cited by Brunner, 1 Zeitschrift für Vergleichende Rechtswissenschaft, 367. See also “A Boke of Presidents,” fol. 86, b: “Noveritis me P. loco meo posuisse T. meum verum et legitimum atturnatum ad prosequendum . . . vice et nomine meo pro omnibus illis terris . . . vocatis W. . . . quæ mihi . . . descendebant et quæ in presenti a me injuste detinentur. Necnon in dictas terras . . . vice et nomine meo ad intrandum ac plenam . . . possessionem et seisinam . . . capiendum . . . et super hujusmodi possessione sic capta et habita dictas terras . . . ad usum dicti t. custodiendum gubernandum occupandum et ministrandum.”
[1 ]Steeple v. Downing, 60 Ind. 478; Vail v. Lindsay, 67 Ind. 528; Wade v. Lindsey, 6 Met. 407; Cleaveland v. Flagg, 4 Cush. 76; Farnum v. Peterson, 111 Mass. 148; McMahan v. Bowe, 114 Mass. 140; Rawson v. Putnam, 128 Mass. 552, 553; Stockton v. Williams, 1 Doug. (Mich.) 546; Betsey v. Torrance, 34 Miss. 132; Hamilton v. Wright, 37 N. Y. 502; Wilson v. Nance, 11 Humph. 189, 191; Edwards v. Roys, 18 Vt. 473; University v. Joslyn, 21 Vt. 61; Edwards v. Parkhurst, 21 Vt. 472; Park v. Pratt, 38 Vt. 545; [Paton v. Robinson, (Conn. 1909) 71 Atl. R. 730; Brinley v. Whiting, 5 Pick. 348; Livingston v. Proseus, 2 Hill, 526; Dever v. Hagerty, 169 N. Y. 481; Galbraith v. Payne, 12 N. Dak. 164; Ten Eyck v. Witbeck, 55 N. Y. Ap. Div. 165, affirmed 170 N. Y. 564; Saranac Co. v. Roberts, 125 N. Y. Ap. Div. 333, 341; Hasbrouck v. Bunce, 62 N. Y. 475].
[2 ]Stogdel v. Fugate, 2 A. K. Marsh. 136; Holly v. Huggeford, 8 Pick. 73; Boynton v. Willard, 10 Pick. 166; Clark v. Wilson, 103 Mass. 219, 222; Jordan v. Gillen, 44 N. H. 424; North v. Turner, 9 S. & R. 244.
[3 ]Lazard v. Wheeler, 22 Cal. 139; Final v. Backus, 18 Mich. 218; Brady v. Whitney, 24 Mich. 154; Grant v. Smith, 26 Mich. 201; Smith v. Kennett, 18 Mo. 154; Doering v. Kenamore, 86 Mo. 588; McKee v. Judd, 12 N. Y. 622; Robinson v. Weeks, 6 How. Pr. 161; Butler v. N. Y. Co., 22 Barb. 110; McKeage v. Hanover Co., 81 N. Y. 38; Birdsall v. Davenport, 43 Hun, 552; [Lincoln Co. v. Allen, 82 Fed. 148; Howe v. Johnson, 117 Cal. 37; Lawrence v. Wilson, 64 N. Y. Ap. Div. 562].
[1 ]In addition to the early English authorities cited supra, pp. 34-35, see Scott v. McAlpine, 6 Up. Can. C. P. 302; Murphy v. Dunham, 38 Fed. Rep. 503, 506; Goodwyn v. Lloyd, 8 Port. 237; Brown v. Lipscomb, 9 Port. 472; Dunklin v. Williams, 5 Ala. 199; Huddleston v. Huey, 73 Ala. 215; Foy v. Cochran, 88 Ala. 353; McGoon v. Ankeny, 11 Ill. 558; O’Keefe v. Kellogg, 15 Ill. 347; Taylor v. Turner, 87 Ill. 296 (semble); Ericson v. Lyon, 26 Ill. Ap. 17; Stogdel v. Fugate, 2 A. K. Marsh. 136; Young v. Ferguson, 1 Litt. 298; Davis v. Herndon, 39 Miss. 484; Warren v. St. Louis Co., 74 Mo. 521; Doering v. Kenamore, 86 Mo. 588; Gardner v. Adams, 12 Wend. 297; Blount v. Mitchell, 1 Tayl. (N. C.) 130; Morgan v. Bradley, 3 Hawks, 159; Stedman v. Riddick, 4 Hawks, 29; Overton v. Williston, 31 Pa. 155.
[2 ]Brig Sarah Ann, 2 Sumn. 206, 211; Tome v. Dubois, 6 Wall. 548; Cartland v. Morrison, 32 Me. 190; Webber v. Davis, 44 Me. 147; Clark v. Wilson, 103 Mass. 219, 222-3 (semble); Dahill v. Booker, 140 Mass. 308, 311 (semble); Serat v. Utica Co., 102 N. Y. 681 (semble); Kimbro v. Hamilton, 2 Swan, 190.
[3 ]Brig Sarah Ann, 2 Sumn. 206, 211.
[1 ]See Overton v. Williston, 31 Pa. 155, 160.