§ 130. Of Title by Abandonment. Title by abandonment is the title whereby the owner of an estate, which is subject to an incorporeal hereditament, acquires the right, without his own act, to hold his estate free from the burden of such incorporeal hereditament. This title can arise only where the owner of the incorporeal hereditament does some act inconsistent with the further existence of the same. Mere non-user is not enough to raise even a presumption of abandonment, unless continued for a long period (usually twenty years); and this presumption is of little force, unless aided by acts of the owner of the hereditament. Read 3 Kent Comm., Lect. lii, pp. 448-452. § 131. Of Title by Forfeiture. Title by forfeiture is the title by which the grantor of an estate upon condition subsequent, or his heirs or assigns, on fulfilment of such condition, again acquires an estate in the property in which such conditional estate was granted, or again enjoys his original estate free from the limitations imposed thereon by the existence of the conditional estate. Read 2 Bl. Comm., pp. 153, 267-284. 2 Cruise Dig., Tit. xiii, Ch. ii, § 41. § 132. Of Title by Prescription. Title by prescription is the title by which the possessor of an incorporeal hereditament, after a certain period of possession, acquires an estate in such hereditament. This title rests upon the rule of law, that such continued possession raises a conclusive presumption that there has been a grant of such hereditament, to the possessor thereof, by the owner of the corporeal property in, or concerning, or annexed to, which the incorporeal hereditament is alleged to exist. The time, during which such possession must have continued is usually fixed by statute. The possession must have been: (1) Adverse; i. e. inconsistent with the enjoyment of the corporeal property by its true owner, according to the nature of his estate therein; (2) Under a claim of right; i. e. with the avowal, on the part of the possessor, that he has a legal right to the possession of the hereditament; (3) Continuous; i. e. without abandonment, or disuse, or substantial alteration in the mode of use, on the part of the possessor; (4) Uninterrupted; i. e. enjoyed, during the whole of the required period of time, by the same individual possessor, or by a series of individuals, each claiming title through his predecessors from the original adverse possessor; (5) Peaceable; i. e. without such action, on the part of the owner of the corporeal property, as suspends, or restricts, or terminates, or interferes with the enjoyment of the hereditament by its possessor; (6) With the knowledge of the owner of the corporeal property. Read 2 Bl. Comm., pp. 263–266. 3 Cruise Dig., Tit. xxxi, Ch. i. 3 Kent Comm., Lect. lii, pp. 441–445. 2 Wash. R. P., B. ii, Ch. i, Sec. 3, §§ 6, 7, 17–29. 3 Wash. R. P., B. iii, Ch. ii, Sec. 3. § 133. Of Title by Possession. Title by possession is the title by which the possessor of land, after a certain period of possession, acquires an estate in such land. This title rests upon the theory that such continued possession is inconsistent with actual ownership in any one else, and upon the rule that after such a lapse of time no antagonistic ownership shall be asserted; but there is no presumption of a transfer of the estate from In order that it may the former to the present owner. result in title, this possession must be: (1) Actual; i. e. a physical occupation of the land by the alleged possessor, or by some other person claiming title under him; (2) Definite; i. e. confined within perceptible boundaries in such a manner that the precise extent of the physical occupation is always ascertainable; (3) Notorious; i. e. so open and apparent that no one, who was familiar with the land, could remain ignorant of such possession; (4) Continued; i. e. without abandonment of the land on the part of the possessor, and without entry on the part of its true owner; (5) Adverse ; i. e. inconsistent with the seisin or possession of the land by its real owner, according to the nature of his estate therein; (6) Exclusive; i. e. undisturbed by the antagonistic occupation of any other claimant of the land; (7) Uninterrupted; i. e. enjoyed, during the whole of the required period of time, by the same person, or by a series of persons each claiming title, through his predecessors, from the original adverse possessor; (8) Under a claim of right; i. e. with the avowal, on the part of the possessor, that he has a legal right to the possession as the owner in fee-simple of the land itself. Such a possession justifies the presumption that the real owner of the land acquiesces in the claim of ownership, made by him who has the actual possession; and, after the prescribed period of acquiescence has elapsed, the law forbids the true owner to assert his title against the alleged title of the possessor. And, therefore, as the actual possessor of corporeal property has always a good title thereto against all the world except the true owner, when the true owner can no longer assert his title the ownership of the possessor becomes complete and indefeasible. Read 2 Bl. Comm., pp. 195–199. 3 Cruise Dig., Tit. xxxi, Ch. ii, §§ 1, 2, 6, 15–26, 38-40. 3 Wash. R. P., B. iii, Ch. ii, Sec. 7. § 134. Of Title by Marriage. Title by marriage is the title by which a husband acquires an estate in the real property of his wife, or a wife acquires an estate in the real property of her husband. The nature and extent of this estate, during the coverture, differs in the different States, and is to be ascertained by an examination of their statutes. Estates in dower and by curtesy, which arise at the termination of coverture are held by this title, the law vesting such estates in the husband or wife immediately on the death of the other party to the marriage. Read 2 Kent Comm., Lect. xxviii, pp. 129-134. Will. R. P., pp. 205-217. 1 Wash. R. P., B. i, Ch. ix, Sec. 1. Reeve Dom. Rel., pp. 27-36, 39-59. Schouler Dom. Rel., pp. 142–157, 163–166, 182–186. § 135. Of Title by Execution. Title by execution is the title by which a creditor, or other person, acquires an estate in such real property of a debtor as is sold or set off, under process of law, in satisfaction of a judgment-debt. In all of the States, the estate of a judgment-debtor in real property may be seized and levied on in execution, and, in most of them, a judgment creates a lien on such estate without the issue or levy of an execution. The mode of levying an execution on real property differs very greatly in different States. In some, the land itself is set off and deeded to the creditor by the officer levying the execution. In others, the land is sold at auction by the officer, and deeded by him to the party purchasing. In others, the land may be placed by the sheriff in the possession of the creditor until the rents and profits pay the debt. By this title also are those lands acquired, which are sold at tax-sales to satisfy the duty owing to the state, or at sales under a decree enforcing a lien or an assessment. In all these cases, the estate taken by the creditor or purchaser is subject to all the burdens existing upon it in the hands of the debtor, unless there be some special provision of law to the contrary. Read 3 Bl. Comm., pp. 418, 419. 3 Cruise Dig., Tit. xiv, §§ 16-18. 4 Kent Comm., Lect. lxvi, pp. 428-438. 2 Wash. R. P., B. i, Ch. xv. 3 Wash. R. P., B. iii, Ch. iii, Sec. 2. § 136. Of Title by Judicial Decree. Title by judicial decree is the title by which a person acquires an estate in real property as the direct result of judicial action. In some States, a Court of Equity has power to pass an estate from one person to another, without any act or voluntary acquiescence on the part of him from whom the estate passes. Thus, by the decree of a court foreclosing a mortgage, the equitable estate of the mortgagor is divested, and the whole estate vests in the foreclosing mortgagee. Thus also, by the decree of a court having jurisdiction in bankruptcy, the estate of the bankrupt is vested in his trustee. The estate of a guardian, who is appointed by a court, in the real property of his ward, or of an executor or administrator, who receives power from a Court of Probate to convey the land of the intestate, is of substantially the same origin. In these cases, as in those of preceding titles, the estate acquired is only that of the former owner, with its attendant burdens and liabilities. Read 2 Bl. Comm., pp. 159, 285, 286. 2 Cruise Dig., Tit. xv, Ch. vi, §§ 1-3. 2 Wash. R. P., B. i, Ch. xvi, Sec. 10, §§ 10, 15. |