This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The theory of seisin, which at one time played a most important part in the English law of land, gave rise to rules which still exist as to the creation of estates, and this fact, together with the frequent reference to the subject in the older text books and decisions, renders a brief consideration thereof desirable,35 though it can be regarded as a part of the
31. Sharswood's note, 2 Blackst. Comm. 78.
32. Gray, Perpetuities, Sec. 22. Tenure is recognized by the statutes of Georgia (Code 1895, Sec. 3051) and New Jersey (1 Gen. St. 1895, p. 879).
33. "In this condition are at least Connecticut, New York, Maryland, Virginia, Ohio, Wisconsin, West Virginia, Kentucky
(?), Minnesota, California." Gray, Perpetuities, Sec. 24.
34. Gray, Perpetuities, Sec.Sec. 25-28.
35. "In the history of our law there is no idea more cardinal than that of seisin. Even in the law of the present day it plays a part which must be studied by every lawyer; but in the past it was so important that we may almost say that the whole system of law at the present day for but very few purposes.36
Seisin primarily means possession,37 and for several centuries after the Conquest it was the only word known to the English lawyers capable of conveying this meaning. It was consequently applied at one time to the possession of chattels, as well as of land.38 Later it was applied only to the possession of land or of incorporeal things, and in this connection it came finally to be used only in reference to possession by one claiming a freehold estate; he being said to be "seised," while a tenant for years or at will was said to be merely "possessed."39 The possession of the tenant for years or at will did not, however, exclude the idea of seisin in another; such possession being in fact regarded as being in behalf of the person claiming the freehold, the person "seised."40 Consequently "seisin," at least before the Statute of Uses (27 Hen. VIII. c. 10; A. D. 1535), may be regarded as meaning the possession of land by one having or claiming a freehold estate therein, either by himself or by another in his behalf.41 our land law was law about seisin and its consequences." 2 Pollock & Maitland, Hist. Eng. Law, 29.
36. The law of seisin has still a bearing on the subjects of dower and curtesy. See post Sec.Sec. 210, 239.
37. The word, while suggestive to our minds, from its similarity to the word "seize," of the idea of violence, is in reality only distantly connected with the latter word, and is to be associated rather with the words to "sit" and to "set," with which it is also connected etymologically, and properly implies the idea of one being "set" on land, and thereafter sitting there in rest and quiet. 2 Pollock & Maitland, Hist. Eng. Law, 29.
38. 2 Pollock & Maitland, Hist. Eng. Law, 32.
39. Litt. 324; Co. Litt. 200b, 201a; Challis, Real Prop. 47.
40. Challis, Real Prop. 233. "On the whole, we may say that the possession of land which the law protects under the name of a 'seisin of freehold' is the occupation of land by one who has come to it otherwise than as tenant in villeinage, tenant at will, tenant for term of years or guardian, that occupation being exercised by himself, his servants, guardians, tenants in villeinage, tenants at will, or tenants for term of years." 2 Pollock & Maitland, Hist. Eng. Law, 39.
41. 2 Pollock & Maitland, Hist. Eng. Law, 32. The definition of seisin, frequently found, as being "the completion of that investiture by which the tenant was adReal Property.
[ Sec. 14
Seisin might be either seisin "in deed" or seisin "in law." Seisin in deed was the actual possession, obtained by the actual and corporeal entry of the freeholder upon the lands, while seisin in law existed when an estate came to one by act of the law, as by descent, and he failed to make an entry thereon, it being, however, turned into seisin in deed in case he made such entry.42
After the Statute of Uses, for reasons connected with the construction of that statute as giving, under certain circumstances, seisin even "in deed," without actual entry on or occupation of the land,43 seisin apparently acquired a broader meaning than before, and one was usually said to be "seised" if he had a legal estate of freehold, either in possession, or in remainder or reversion, provided it had not been turned into a mere right of entry, as when another had wrongfully deprived him of the actual possession.44
As above indicated, closely connected with the idea of seisin is that of possession, and at the present time the latter has far more practical importance than the former. In spite however of its practical importance from a legal point of view, the idea of possession appears to be peculiarly insusceptible of accurate definition.45 We may say, however, speaking generally, that mitted into the tenure," more properly describes the "livery of seisin." See 12 Law Quart. Rev. 239.
42. Litt. Sec. 448; Co. Litt. 266b, and Butler's note; 1 Cruise, Dig. tit. 1, Sec. 20; Challis, Real Prop. 232.
43. 1 Cruise's Dig. tit. 11, c. 3, Sec. 34. See post, Sec. 100.
44. Goodeve, Real Prop. (3d Ed.) 364; article by Charles Sweet, Esq., in 12 Law Quart. Rev. 239, 247.
So late as 1878 it was decided in England that a devise of "all real estate of which I may die seised" did not cover land to which the testator was entitled, but which had been entered upon some years before by another person claiming title. Leach v. Jay, 9 Ch. Div. 42.
45. "There is no conception which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame any definition from which the concrete law of possession can be logically deduced. Salmond, Jurisprudence 4th Ed.) 240.
One is in possession of land when he is in occupation thereof, with the intention, actually realized, of excluding occupation by others, or when, although not in actual occupation, he claims the right of exclusive occupation, and no person is in occupation opposing his claim. The possession which involves actual occupation of land is conveniently termed "actual" possession, and that not involving such occupation, "constructive" possession.
The expression "right of possession," which we will occasionally use, obviously involves an idea different from that of possession. One having the possession quite usually has the right of possession, in the sense that there is no other person able to show a better right, and when the possession and right of possession thus concur, it is ordinarily unnecessary to refer to the right. But one may have a right to the possession as against another who has the possession, as in the simple case of one who has been ousted from the land by another.