Page:Harvard Law Review Volume 32.djvu/177

I TITLE BY ADVERSE POSSESSION 141 by entry or ejectment, or by some other remedy, and when these remedies are all taken away by the statute or by analogy thereto, the defect in the possessory title becomes cured. It has indeed been said by some eminent judges that the effect of the statute is "to make a parUamentary conveyance of the land to the person in possession at the last moment when the period has elapsed."^* As Gibson, C, J., puts it, "The instant of conception is the instant of birth," without any period of gestation or maturing of an inchoate title. The idea seems to be that the statute of limita- tions is a conveyancer like the Statute of Uses, which, when there is a deed by Doe to the use of Roe and his heirs, "executes the use," and, — "Like flash of electricity, The land 's transferr'd in fee to Roe, Nothing at all remains in Doe." ^ But there is, in truth, no such transfer of title by the statute of Umitations. The direct effect of the statute is negative, to extin- guish the right of entry of the ousted owner. The indirect effect is to quiet the title of the possessor. Title is thus established by the joint operation of the statute and the common law. The possession of the adverse holder, although gained by manifest wrong, and although liable to be defeated by entry of the rightful owner, is per se a title good as shield or sword, either to hold or to recover possession, as against all others. Even the title of the original owner is affected ah initio, by disseisin, although not so much to-day as formerly. His "right of entry ^^ should hardly be regarded, as Dean Ames regarded it, as being reduced to a mere chose in action. His remedy is limited, however, by the common law to asserting his rights by a direct proceeding to recover possession.^^ The statute operates to relieve the adverse holder from this sole danger of eviction, and, being thus quieted, the once precarious possession ^ Per Parke, B., in Doe v. Sumner, 14 M. & W. 39 (1845). See also Scott v. Nixon, 3 Dr. & War. 388, 405, 407 (1843); Rankin v. McMurtry, 24 L. R. Irish, 270, 297, 303 (1889); Graffius v. Tottenham, i Watts & S. (Pa.) 488, 494; Jordan v. Chambers, 226 Pa. 573, 75 Atl. 956 (1910). A paradox of Sugden's, 34 L. Quart. Rev. 253 Quly, 1918). ^ Crisp, Conveyancer, 3 ed., 107. » But, see Jos. Bingham, "Legal Possession," 13 Mich. L. Rev. 535, 561, 623, 624, 629; Bethea v. Jeffres, 126 Ark. 194, 189 S. W. 666 (1916); Anderson v. Hapler, 34 HI. 436 (1864). See 69 L. R. A. 762, note.