The right of a party to recover possession is enforced by a writ of possession.
Possession gives in English law, speaking generally, much the same rights as in Roman law. Thus it serves to found a title (see Limitation, Statues of; Prescription), and to throw the onus of proof upon the claimant. In an action for the recovery of land the defendant need only allege that he is in possession by himself or by his tenant, and (where such an allegation is necessary) that he had no notice to quit. The chief differences between Roman and English law, arising to some extent from the differences in the history of the two systems, are that the former did not give to derivative possessors (except in the case of pledge) the remedies of possessors, as does English law, and that Roman law is stricter than English in requiring that possession to found usucapio should (except in the case of jus aquae ducendae) be exjusto titulo, or under colour of right (see Prescription). There is one case of constructive possession which is peculiar to English law—that is, where possession is said to be given by a deed operating under the Statute of Uses (see “Orme's Case,” L. R. 8, C. P. p. 281).
In English law the doctrine of possession becomes practically important in the following cases. (1) Possession serves as a convenient means of division of estates (see Real Property). One of the divisions of estates is into estates in possession and estates in reversion or remainder. It also serves as a division of personal property (q.v.). A close in action is said to be reduced into possession when the right of recovery by legal proceedings has become a right of enjoyment. (2) Possession gives a title against a wrongdoer. In the case of real property it is regarded as prima facie evidence of seisin.[1] In the case of personal property the mere possession of a finder is sufficient to enable him to maintain an action of trover against one who deprives him of the chattel[2] (see the leading case of Armory v. Delamirie, 1 Str. 504). (3) What is called “unity of possession” is one of the means whereby an easement is extinguished. Thus the owner of close A may have had a right of way over close B, while the latter belonged to a different owner. If the two closes come to be owned by the same person, the right of way is extinguished, but may under certain circumstances revive on the separation of the ownership. (4) Possession is very important as an element in determining the title to goods under 13 Eliz. c. 5, the Bills of Sale Act 1878 and the Bankruptcy Acts 1883 to 1890. It may be said that as a general rule retention of possession by the transferor or an absolute assignment or a colourable delivery of possession to the transferee is strong prima facie evidence of fraud. (5) Possession of goods or documents of title to goods is generally sufficient to enable agents and others to give a good title under the Factors' Acts (see Factor). (6) In criminal law the question of possession is important in founding the distinction between larceny and embezzlement. If the goods are in the possession of the master and he gives them to the custody of his servant for a specific purpose and the servant steals them, it is larceny; if they have never come into the master's possession, as if a clerk receives money on his master's behalf, it is embezzlement. Recent possession of stolen goods is always regarded as a presumption that the person in whose possession they are stole them or received them knowing them to have been stolen. In the case of a charge of receiving stolen goods evidence may be given that there was found in the possession of the accused other property stolen within the preceding period of twelve months, 34 & 35 Vict. c. 112, s. 19. (For possession in criminal law, see Stephen, Digest of the Criminal Law, note xi.) (7) Actions of possession of ships fall within the jurisdiction of the admiralty division. This jurisdiction in the case of British vessels depends upon the Admiralty Court Act 1861 (24 Vict. c. 10, s. 8), in the case of foreign vessels (in which the jurisdiction is rarely exercised) upon the general powers of the court as a maritime court.
The doctrines of adverse possession (in the old English sense, which was not identical with the Roman law, for the real owner must have actually or by fiction been disseised) and of possession fratris are now of only antiquarian interest. The Statutes of Limitation have superseded the first. The only question now is, not whether possession has been adverse or not, but whether twelve years have elapsed since the right accrued. The maxim “possessio fratris de feodo simplici sororem facit esse haeredem” (Coke upon Littleton, 14b) has been altered by the rule of descent introduced by the Inheritance Act 1833, under which descent is traced from the purchaser. At one time possessor suits were occasionally maintained in England, and more frequently in Ireland, for the quieting of possession after proof of three years' possession before the filing of the bill. But such suits are now obsolete (see Neill v. Duke of Devonshire, 8 A. C. 146). There was one characteristic case in old English law in which possession was maintained by means of what was called “continual claim,” made yearly in due form, where the person having the right was prevented by force or fear from exercising it (Coke upon Littleton, 253b). Continual claim was abolished by the Real Property Limitation Act 1833, s. 11.
Scotland.—In Scotland possessor actions still exist eo nomine. Actions of molestation, of removing, and of maills (payments) and duties are examples. A possessor judgment is one which entitles a person who has been in possession under a written title for seven years to continue his possession (Watson, Law Dict., s.v. “Possessory Judgment”).
United States.—Here the law in general agrees with that of England. Possessory rights are taxed in some of the states. Louisiana follows Roman law closely. Possession of incorporeal rights (to use the unscientific language of the Code) is called quasipossession, and the division of possession into natural and civil is maintained (Civil Code, ss. 3389–3419).
In addition to the authorities cited may be mentioned Smith, Dict. of Antiquities, s.v. “Possessio”; Markby, Elements of Law; Holland, Elements of Jurisprudence; Holmes, The Common Law (lect. vi.); Pollock and Wright, Possession in the Common Law.
- (J. W.)
POSSESSION, the term given to the supposed control of a human body and mind by an alien spirit, human or non-human; or the occupation by an alien spirit of some portion of a human body, causing sickness, pain, &c. The term obsession (Lat. for siege) is sometimes used as equivalent to possession; sometimes it denotes spirit control exercised from without, or it may mean no more than a maniacal monoideism. From an anthropological point of view possession may be conveniently classed as (a) inspirational, (b) demoniacal, (c) pathological, according to the view taken of the reason for or effect of the spiritual invasion of the possessed person.
a. In inspirational possession the oracle spirit is held to have entered the person in order to foretell the future or to proclaim the will of a god; the god himself may be regarded as speaking through the mouth of his devotee; among peoples in the lower stages of culture possession by spirits of the dead is inspirational, especially where there is any kind of ancestor worship in vogue. This kind of possession, so far as is known, does not appear among some of the lowest peoples, e.g. the Australians; but it is common in Africa, Polynesia and Asia, where European influence has not led to its decay. Many of the classical oracles were regarded as due to divine inspiration. The manifestations are often voluntarily induced and are provoked in many different ways; in classical times the eating of laurel leaves, the inhaling of fumes which ascended from a cleft in the rocks of Delphi, the drinking of intoxicating liquors, or of a more widely found means of inducing the phenomena—blood—were all in use. In the Malay Peninsula the medicine man inhales incense which rises in clouds from a censer and hangs like a mist round his head; similar hypnotic effects are produced in Egypt in the case of divining boys by means of drugs. In Fiji the priest sat before a dish of scented oil and anointed himself with it, till in a few minutes he began to tremble and was finally strongly convulsed. In parts of India, draughts of blood from the neck of the newly decapitated victim were the means of rousing the priest to frenzy; while in Siberia, America and many parts of Africa drumming, contortions and orgiastic dancing are more commonly found. According to another account, the Fijian priest provoked the onset of the trance by a method in use in ordinary hypnotic practice; he sat amid dead silence before a whale's tooth, at which he gazed steadfastly.
The symptoms of supposed possession by a god differ as widely as do those of the hypnotic trance. In Hawaii the god Oro gave his oracles by inspiring the priest, who ceased to speak or act as a voluntary agent, his frenzied utterances being interpreted by the attendant priests. In the Malay Peninsula the pawang, after censing himself, lies down on his back, with his head shrouded, and awaits the moment of inspiration. The tiger spirit which is the familiar of all Malay pawangs manifests its presence by a low lifelike growl and the pawang scratches at the mat, gives a series of catlike leaps and licks up from the floor the handfuls of rice scattered there. But his state seems to be far removed from the ecstasy of the Hawaiian priest, though it must be remembered that no test of bona tides is possible in either case. We meet with another stage in Tahiti in the lofty declamation of the possessed priests, who thus afford a parallel to the utterances of many modern mediums. Finally in Africa, where the frenzied form of possession is also common, we find at Sofala the manifestations of possession
- ↑ “Seisin” and “possession” are used sometimes as synonyms, as generally by Bracton; at other times they are distinguished: thus there can be possession of a term of years, but no seisin (Noy, Maxims, p. 2). It seems doubtful, however, how far in English law a tenant for years has true possession, for he is in law only a bailiff or servant of the landlord. But he certainly has possessor remedies, like the quasi-possessor in Roman law.
- ↑ Compare the Code Napoléon, art. 2279: “En fait de meubles la possession vaut titre.”
