Among the most important principles of the law of real property, there is none of greater moment than the one which encourages the repose of titles. Since by the passing of the old Feudal tenures, land became free as it were, the need of laws to safeguard and secure stability of titles became more apparent as time passed. Under the Feudal System, where the use of land was given as a reward for service and where by the rule of primogeniture such use descended to the oldest son, the question of title was of little or no importance. In those days, estates in land, in general, were limited by two fixed rules, namely: 1st. The oldest son succeeded to the use of the land upon the death of his father. 2nd. The fee thereto remained perpetual in the King.

With the passing of Feudalism came the dawn of greater liberties and the acquisition of new rights. Important among such rights were those in relation to land. The interest of the tenant which was formerly confined to the use of the land only, was in due time broadened into a fee. Being thus clothed with the largest possible interest in land, the owner as a matter of course could do with the same whatever might be to his liking. Thus, land soon became the subject of bargian and sale, and as the ownership of land conferred a certain degree of social distinction, the title of "Landlord" or its equivalent, was eagerly sought by many of those possessed of sufficient means. With the advent of free titles came the growing necessity of some means whereby the owners of realty could maintain their possession against the adverse claims of others. This was a question of no small importance. The new system of tenures was confronted with new conditions which of necessity had to be met by new rules of action or the enactment of such laws as would preserve title in the rightful owner.

In former times the landlord went into actual possession, and his ability to retain such possession usually depended upon the force he could display in opposition to him who sought to oust him. Thus it may be said that possession coupled with sufficient force to retain the same were the first evidences of ownership or title. People had not yet learned the value of legal protection. To submit disputed titles for settlement in accordance with rules sanctioned by society, had not yet entered their minds. The necessity of some kind of evidence in support of the owner's title gradually became apparent. The formulation of the best rules of evidence in this respect came about slowly. In fact there was at one time, as in France for instance, a total lack of evidence of any kind required in the sale of land. The seller simply agreed orally to sell, and the buyer agreed to purchase and the passing of the consideration from the vendee to the vendor completed the transaction. Strange and crude as such a method would seem at present, it was nevertheless regarded by the French people at least, as the acme of perfection. They boastfully asserted that the word of a Frenchman was beyond question. To be able to make conveyance by simple agreements and without recourse to public or private authority was to them a source of pride and joy. While such a system might be ideal in some respects, it lacked the necessary elements of protection against fraud or error. With no evidence accompanping a conveyance of land, the title must of necessity remain in a precarious condition. To establish proper rules of evidence in support of titles has been the aim in the customs and laws of most civilized countries. The former practice, in England, of livery of seizin, whereby the vendor in the presence of living witnesses put the vendee in possession by delivering to him a part of the land, such as a stone, a piece of turf, moss or a twig, was an effort to secure to the vendee peaceable possession and the right to exercise over the land exclusive control and ownership. This custom, like the previous one mentioned, was weak on the side of the sufficiency of evidence to forever support the title. The witnesses to the transaction would sooner or later die. In numerous instances they would migrate to distant parts of the realm or to foreign lands so that in the event of a contested title the witnesses were frequently dead or could not be procured by reason of remote or obscure places of habitation.

While various methods of transfer were in vogue in the several countries of Europe in early times, it should not be inferred that written conveyances had no place in those days. In England, it is true, deeds of sale in writing succeeded the ancient livery of seizin, yet in Rome as far back as the Roman Empire, deeds in writing were executed with great formality, and the required witnesses were so numerous that the risk of ejectment was reduced to a minimum. The custom of reducing to writing deeds of sale of land eventually superseded all other methods and grew into universal favor with all enlightened nations and so continues to this day. To require by law that all conveyances should be in writing and accompanied by certain prescribed formalities is a marked advance toward securing a certain degree of proof in support of titles. It soon became apparent that transfers in writing, even though executed with precise technicality, and in accordance with prescribed rules, were yet lacking in some important particulars. The written instruments in themselves were not at fault. They were in fact executed with the greatest skill and the most painstaking care was exercised in the drafting of each detail. Title was conveyed with an absolute degree of certainty. The delivery of the deed to the vendee became the symbolic delivery of the land and had the same effect as the former livery of seizin. Unless however, the vendor thereupon surrendered his possession, and unless the vendee at once took actual possession, his deed was ineffectual so far as protecting him from fraud or error was concerned. Should the vendee not enter into possession immediately, the vendor was not hindered from making a second conveyance. The doorway to fraud was yet wide open. The deed, though perfection in itself, fell far short of accomplishing the desired end. The primary defect in this method was the lack of publicity. Conveyances were regarded as private transactions and thus a degree of almost absolute secrecy was thrown around them. Under such conditione there could be only one logical result, and that was the prevailing uncertainty of titles.