Page:Harvard Law Review Volume 32.djvu/173

137 TITLE BY ADVERSE POSSESSION I37 or one of his grantors, was in possession and that this prior posses- sion is vested in the plaintiff by a regular devolution of title. A mere trespasser cannot set up an outstanding title in a third person as a defense where he does not claim under it.^ Upon every sale or mortgage of land it is necessary that the evidence of the title be critically examined. For what period and from what source should the title be deduced? The conveyancer in the United States usually looks for a record title going back to a patent from the United States, the state, or some other government for a clear root of title. In England, evidence of the original royal feoffments or gifts of former centuries was long since lost. The proprietor must go back to the earhest possessor or occupant who can be proved to have held seisin in fee. Except for government grant, possession is thus the ultimate root of all titles. Title deeds are nothing but the history or evidence of the transfer of rights arising from possession, reaching back perhaps to "that mailed marauder, that royal robber," that great adverse possessor, — William the Con- queror. "Every title to land has its root in seisin; the title which has its root in the oldest seisin is the best title." ^ With the help of statutes of Umitation, however, it is now ordinarily sufficient for the English conveyancer to go back forty years for a root of title. It may be instructive to sketch the history of the statutes by which limitations were placed on ancient seisin as a source of title. The only limitation on a writ of right to recover seisin at common law was lack of evidence. Several early statutes of limitation were passed, of which the Statute of Westminster I, 3 Edward I, c. 39 (1275), is typical. This statute did not purport expressly to bar any remedy or pass any title but merely placed a fixed Hmit back of which a suitor in a real action could not go for a source of title. It provided that in conveying (tracing) a descent in a writ of right, none shall presume to declare of the seisin of his ancestor further or beyond the beginning of the reign of King Richard I (1189). In other real actions the demandant could not go back so far. The effect, therefore, was that a more recent seisin, though tortious, became a paramount source of title. » Casey v. Kimmel, 181 HI. 154, 54 N. E. 905 (1899); Bums v. Ctirran, 275 HI. 448, 451, 114 N. E. 166 (1916). " 2 Pollock & Maitland, Hist. Engl. Law, 46. See Pollock's ed., Maine, Anctent Law, ch. 8, 267, 295, 314.