886
[end of lecture 55]

LECTURE LVI.

THE SUBJECT OF TITLES CONTINUED.

Continuing the disquisition concerning titles in general, which I began in my last Lecture, I would remark that, titles (or the facts through which the law confers and divests rights, or, through which the law imposes and withdraws duties) are divisible into simple and complex.

Titles distinguished into simple and complex. But really always complex.

A title may consist of a fact which is deemed one and indivisible, and is said to be simple. Or a title may consist of a fact which is not deemed one and indivisible, but is esteemed a number of single and indivisible facts compacted into a collective whole, and may then be called complex.⁹⁸

And here it is obvious to remark, that every title is really complex. In the case, for example, of acquisition by occupancy (which perhaps is the least complex of all titles), the title, though deemed simple, consists, at the least, of three distinguishable facts: namely, the negative fact that the subject occupied has no previous owner; the positive fact of 887the occupation, or of the apprehension or taking possession of the subject; and the positive fact of the intention, on the part of the occupant, of appropriating the subject to himself:—animus rem sibi habendi.

Nay, each of the simpler facts into which a title deemed simple is immediately resolvable, may itself be resolved into facts which are still more simple or elementary. The negative fact, for example, that the thing acquired by occupancy is res nullius, is the absence or negation of that multitude of facts which are imported by the positive fact of a thing being owned already. And the fact of the apprehension or taking possession, or the animus or intention, on the part of the occupant, rem sibi habendi, is also resolvable into a number of facts which it would take a long treatise to distinguish and describe.

Consequently, a so-called simple title is a title consisting of parts, which, for the purpose contemplated by the speaker, it is not necessary to distinguish: whilst a so-called complex title is a title consisting of parts, which, for the same purpose, it is necessary to consider separately. The terms simple and complex, as applied to titles, are merely relative expressions. For one and the same title as viewed from different aspects, or one and the same title as considered for different purposes, may be simple and complex.

If the distinction of titles into simple and complex have any other meaning than the one which I have now mentioned, that other meaning is founded on a difference of degrees.—Though all titles are complex, some are more complex than others. And such as are more, and such as are less complex, may be divided loosely into complex and simple, and distinguished by these epithets.

Component elements of a complex title. Principal and accessory.

According to Bentham, in his ‘Vue générale d’un Corps de Droit,’ the distinguishable facts which constitute a complex title, are divisible, in some cases, into ‘principal’ and ‘accessory.’ Looking at the rationale of the distinction which he seems to have in view (and which is a distinction of great practical moment), I should think that essential or intrinsic, and accidental or adventitious, would be more significant than principal and accessory.

The rationale of the distinction appears to be this:

As I remarked in my last Lecture, titles serve as signs or marks, to denote that such or such rights have vested in such or such persons; that such or such duties are incumbent on such or such parsons; that such or such rights have ceased or been 888divested, or that such or such duties have been withdrawn or removed. In other words, it is through the medium of titles (except in the comparatively few, and comparatively unimportant, cases, wherein rights and duties are conferred and imposed by the law immediatè, or are divested and withdrawn by the law immediatè), that the respective rights and duties of the several members of the community are distributed or assigned. Setting aside those comparatively few, and comparatively unimportant cases, persons are invested and burthened with rights and duties, or are divested and discharged of rights and duties, not as being determined by their specific or peculiar characters, but as belonging to classes of persons. And it is through the medium of the various titles, that they are determined respectively to those various classes.

But, as I also remarked in my last Lecture, it is seldom that a right or duty is annexed to a title, or that a right or duty is divested or withdrawn by a title, merely because the title serves as such a mark. For, if the title merely served as a mark to fix the commencement or determination of the right or duty, almost any fact might serve the turn as well as the fact which is the title. There are generally certain reasons, derived from the nature of the fact which serves as a title, why such or such a right should be annexed to that fact rather than another, why such or such a duty should be annexed to that fact rather than another, or why that fact rather than another should divest such or such a right or duty.

In short, a title serves to mark, that this or that person has been invested or burthened with this or that right or this or that duty: or a title serves to mark, that this or that person has been divested of, or exonerated from, this or that right or this or that duty. But, independently of its use in serving as such a mark, there are generally or always reasons, derived from the nature of the fact which is the title, why the given person should be so invested or burthened (or should be so divested or exonerated), through, or in consequence of, that very fact.

Now it may happen, that, looking at the reasons or purposes for which a given right is annexed to a given title, all the facts of which the title is constituted are of its very essence. In other words, the right could not arise (consistently with those reasons or purposes) through or in consequence of the title, if any of the simpler facts into which the title is resolvable were not an ingredient or an integrant part of it.

But it may also happen, that, looking at the reasons or 889purposes for which a given right is annexed to a given title, one or more of the facts of which the title is constituted are not of its very essence. In other words, the right might arise (consistently with those reasons or purposes) through or in consequence of the title, though one or more of the facts of which the title is compounded were not constituent parts of it.

For example: Looking at the reasons for which a convention is made legally obligatory, or for which legal rights and duties are conferred and imposed on the parties to the agreement, a promise by the one party, and an acceptance of the promise by the other party, are of the essence of the title.

But in certain cases, a convention is not legally binding, unless the promise be reduced to writing, and the writing be signed by the promissor: or unless the promise be couched in a writing of a given form: or (generally) unless the contracting parties observe some solemnity which has no necessary connexion with the promise and acceptance.

Now, though the given solemnity, let it be what it may, is, in all such cases, a constituent part of the title, it is not of the essence of the title. For, looking at the general reasons for which conventions generally are made obligatory, or at the particular reasons for which rights and duties are annexed to conventions of a particular class, the right and duty might arise (consistently with those reasons), although the solemnity were no portion of the title. The solemnity may be convenient evidence of that which is essential to the title, but, though it is a part of the title, it is not necessarily such.

Now where the right might arise (consistently with the reasons for which it is annexed to the title), though some of the facts constituting the title were not component parts of it, the several facts into which the title is resolvable may be divided into essential and accidental, intrinsic and adventitious, or (in the language of Bentham) principal and accessory. The facts which are essential or principal are parts of the title, because they are absolutely necessary to the accomplishment of the purposes for which the right is annexed to the title by the lawgiver. But the facts which are accidental or accessory, are constituent parts of the title, not because they are necessary to the accomplishment of those purposes, but for some reason foreign to those purposes, or merely to render their accomplishment more sure or commodious.

The distinction between essential or principal, and accidental or accessory facts, may hold in the case of a title which merely 890imposes a duty, or which divests or withdraws a right or duty, as well as in the case of a title which invests with a right. But, for the sake of simplifying my language as much as I can, I confine myself to titles considered as investing with rights.

Where some of the elements of a title are accidental or accessory, they (generally speaking) are merely subservient to the essential or principal parts of it. For example: They serve as evidence, preappointed by the law, that that which is substantially the title has happened. This is the case, wherever tradition or delivery of the subject, or a writing with or without seal, or an entry or minute of the fact in a register, or any other solemnity of the like nature, is a constituent part of a valid alienation of a thing of a given class.

The essentials of the alienation, as between the alienor and alienee, are a free will and intention on the part of the former to divest himself of the right, and to invest the other with it; an acceptance of the proffered right by the alienee; and some fact, or another, evincing or signifying such intention and acceptance. The tradition, the writing, the entry in the register, or the other solemnity, is merely evidence, required or preappointed by the law, of that which is essentially the title.

Some evidence of the intention and acceptance is indeed absolutely necessary. But evidence other than the solemnity which is a constituent part of the title (as, for example, a verbal declaration), might also serve as evidence of the intention and acceptance. The case of a writing, or other solemnity, which is merely preappointed evidence of the facts that are essentially the title, but which nevertheless is a constituent part of the title, shows clearly the nature of the distinction between the essential or principal, and the accidental or accessory parts of a title.

The evidentiary fact is made a part of the title, or is rendered necessary to the validity of the title, in order that that evidence of the substance of the title, which the lawgiver exacts, may be provided by the party or parties with whom the title originates.

The invalidity or nullity of the title, in case the evidentiary fact be not a constituent part of it, is the sanction of the rule of law by which the evidence is required. But it is clear that the rule of law might be sanctioned otherwise: and that, if it were sanctioned otherwise, the pre-appointed evidence, though still requisite, would be no part of the title.

For example: The absence of the given solemnity, instead 891of nullifying the title (or being made a presumption, juris et de jure, that the title had not accrued), might be made a presumption primâ facie: that is to say, a presumption which the party insisting on the title might be at liberty to rebut, by explaining the reason why the prescribed solemnity had not been observed, and by producing evidence, other than the pre-appointed solemnity, that the title had accrued.

Or the absence of the given solemnity might be visited on the party bound to observe it, not by nullifying his title, but by punishing him with a pecuniary fine.

And, on either of these suppositions, the prescribed solemnity, though still prescribed or exacted, would not be indispensable evidence of the substance of the title, or (what is the same thing) would not be a constituent part of the whole title. For it is manifest, that, wherever an evidentiary fact is indispensable evidence of a given title, that evidentiary fact is a component part of the title, although it is not an essential part, but is merely an accidental or adventitious one.

I have said above, that where some of the elements of a title are non-essential, they (generally speaking) are merely subservient to the essential parts of it. In other words, though they are not absolutely necessary to the accomplishment of the purposes for which the law annexes the right to the title, they tend to render the accomplishment of those purposes more certain or commodious. This, for example, is the case, where a solemnity which is merely evidentiary of the title, is made in effect a part of the title, inasmuch as the title is not complete or valid, in case the solemnity be not observed by the parties.

But it not unfrequently happens, that the accidental parts of a title are in no respect subservient to its essential or principal parts. In other words, they are completely foreign to the reasons or purposes for which the right in question is annexed by the law to the title.

This, for example, is the case, wherever a deed or other writing is indispensable evidence of the title, and where moreover the writing is not admissible evidence, in case a stamp was not affixed to it when the alleged title arose. In this instance, the stamp is made a part of the title, not because it has any connection with the essentials or substance of the title, but to secure the due payment of a given tax.

And here, again, the distinction between the essentials and the accidentals of the title is glaring and manifest.

The nullity or invalidity of the title, in case the stamp be 892not affixed when the alleged title arises, is the sanction of the law which imposes the tax. But it is clear that the law imposing the tax might be sanctioned otherwise: As, for example, by a fine on the party, whose duty it was, when the alleged title arose, to pay the tax, and to procure the fixation of the stamp to the evidentiary instrument.

In practice, the law imposing the tax is often sanctioned in the manner which I am now suggesting.—Although the duty ought to have been paid, and the stamp affixed to the evidentiary instrument, when, or immediately after, the alleged title arose, still the instrument is admissible evidence of the title, if a tax and penalty be paid, and a stamp be affixed to the instrument, subsequently to the time prescribed for those purposes. And, in this case, the payment of the tax, though still requisite, is no part of the title.

Before I quit the topic now under consideration, I would remark that, in many cases, it is not easy to distinguish the essential or principal, from the accidental or accessory elements of a title.

This, for example, is the case, where an accidental element is made a part of the title, because it is deemed commodious evidence of the substance or essence of the title. Here, the evidentiary fact is an accidental part of the title, not absolutely, but only in a qualified manner. For some evidence of the title is indispensable or necessary, inasmuch as the title could not be sustained (in case it should be impugned), if some evidence of it be not forthcoming or producible.

The pre-appointed evidence is therefore an accidental or accessory part of the title, not because evidence is not essential to the validity of the title, but because evidence of the class or description which the law preappoints or prescribes, is not the only evidence by which the title might be sustained. The law might leave the parties to provide what evidence they pleased of the title; and might empower the tribunals to admit the evidence provided by the parties, if they deemed it satisfactory. By determining therefore that evidence of a sort shall be indispensable, the law adjects to the title an element which is properly accidental or accessory.

And the same may be said of every case, in which a fact of a given genus is inseparable from the title, but in which the law determines the species or sort.

For example: Assuming that acceptance by the heir is a necessary part of his title to the heritage, but that the law 893prescribes, under pain of nullity, the form or manner of the acceptance, it is clear that the prescribed acceptance is an accidental part of the title, in so far only as the law determines the manner of the acceptance, instead of leaving him to accept it in any manner whatever.

I assume, merely for the sake of example, that the assent or acceptance of the heir is a necessary ingredient in every title to a heritage. In truth, it is not. For, in the earlier Roman Law, there were certain heirs, styled heredes necessarii, upon whom the heirship, with the acquittal of the deceased’s obligations, was imposed as a duty. Though, afterwards, they were enabled, by taking certain steps, to repudiate the heirship: or, at least, were only bound to acquit the obligations of the deceased, in so far as the faculties or means devolving from him would suffice for that purpose.

It is doubtful how far acceptance is necessary in our own law: it clearly is so in case of the executor or administrator. If he do not take out probate or letters of administration, the estate and effects of the deceased do not devolve on him. But is acceptance necessary in case of the heir? I think yes: for without seisin (a voluntary act) he is not completely heir: seisina facit stipitem.⁹⁹ If the successor does not seise, and dies, the estate passes not to his heir but to the heir of the immediate ancestor. Moreover, seisin was originally the feudal investiture, the acceptance of the heritage from the lord. Before fees became hereditary, it was necessary to take a re-grant from the lord of the fee: for this re-grant seisin was afterwards substituted. Now this must necessarily have been a merely voluntary act.

At all events, he is not answerable beyond assets.

I have insisted on the distinction between the essential and the accidental parts of a title, because they are often confounded. This is particularly the case, as I shall shew hereafter, where the accidental parts are merely evidence, predetermined by the law, of that which is substantially the title itself.

I said, in my last Lecture, that wherever a right or duty is conferred or imposed by a law through an intervening or mediate fact, or wherever a right or duty is divested or withdrawn by a law through an intervening or mediate fact, the right or duty may be said to be conferred or imposed, or may be said to be 894divested or withdrawn, through, or in consequence of, a title: meaning by a title, such intervening or mediate fact.

I also said, that wherever a right or duty is conferred or imposed by a law without the intervention of a fact distinct from the law itself, or wherever a right or duty is divested or withdrawn by a law without the intervention of a fact distinct from the law itself, the right or duty may be said to be conferred or imposed, or to be divested or withdrawn, by the law, immediately or directly: or the right or duty may be said to be conferred or imposed, or divested or withdrawn, ipso jure; by the act or operation of the law; or by the mere act or operation of the law.

And this, I apprehend, is the correct, as it is the obvious, meaning of all such expressions as the following: namely, ‘rights and duties ex lege;’ ‘rights and duties ex lege immediatè;’ ‘rights and duties which are divested and extinguished lege immediatè;’ ‘rights and duties which arise, or are divested or extinguished ipso jure;’ or ‘which are created, or divested or extinguished, by act or operation of law.’

Improper applications of the expressions ex lege immediatè &c.

But in the language of our own law, and of other particular systems of positive law, these and the like expressions are not used with the meaning, or not used exclusively with the meaning, which is obviously the proper one. In the language of our own, and of other particular systems, they are always or commonly applied improperly: in cases, that is to say, in which the right or duty is not created or divested by a law without the intervention of a fact distinct from the law itself; but is really created or divested by a law through a mediated or intervening fact: that is to say, through a title.

These improper applications of the expressions which I have just enumerated, and of various other expressions of the same purport, may be reduced, I think, to two.

1st. Their use to indicate whether or not an act of the party entitled is part of the title.

First, in some cases of title, the title, or one or more of the several facts constituting the title, is some act done by the person who is invested with the right, who is divested of the right, on whom the duty is imposed, or who is exonerated from the duty. But in other cases of title, neither the title, nor any of the several facts constituting the title, is an act done by that person. The will of the person (with reference to all the facts which constitute the title) is perfectly quiescent: or if his will be active, it is merely active in the way of forbearance from some given act. Now where the title is in this latter predicament, the right or duty is said to arise, or to be divested or withdrawn, ‘lege immediatè;’ ‘ipso jure;’ ‘by act or operation of law;’ ‘by mere act 895or operation of law;’ and so on: These and the like expressions really denoting (not that the right or duty is invested or divested without the intervention of any title, but) that the title, by which the right or duty is invested or divested, is not any act of the invested or divested person, and does not comprise any act of that same person.

For example: according to the Roman law, heirs of certain classes, whether they be heirs ex testamento, or heirs ab intestato, are not heirs completely, unless they accept the heritage. And, accordingly, such heirs are styled voluntary, or are said to acquire by their own act. But on heirs of other classes, the inheritance devolves, whether they wish it or not, on the decease of the testator or intestate, without an act of their own. And, accordingly, such heirs are styled necessary (or heirs necessitated or obliged to take), and are said to take the heritage ipso jure, or, as we should say, by mere operation of law.

Again Blackstone says,¹ that purchase or perquisitio is distinguished from acquisition by right of blood, and is made to include all modes of acquisition except inheritance; because in this last case the title is vested in the party, not by his own act or agreement, but by simple operation of law. This is clearly a mistake: it vests in him by descent, but not by simple operation of law; for if he did no act amounting to seisin it would not vest in him, analogously to those heirs by the Roman law, who were said not to take, ipso jure, but by their own act.

Again: Where, according to our own law, a man grants a particular estate (as an estate for years or life) to one, with a remainder over to another, the remainder is said to be created by his own act. But where he grants a particular estate, and does not part with the remnant of his own estate, that remnant is styled a reversion, and is said to arise by the act or operation of law. For though by the grant of the particular estate he does an act, he does no act in respect of the remnant, but the remnant continues in him, or, if you will, reverts to him, through his mere omission or forbearance from granting it away: though by the figment of seisin the whole estate is said to pass out of him by the grant, and the remnant of course must be said to revert to him when the particular estate has expired. The rationale of the matter is that he grants away the particular 896estate, but does not grant away the remnant, which therefore continues in him. But assuming that the whole estate goes out of him, and that a new estate is created, which is called a reversion, and which returns to the grantor, this estate is said to come to him by mere operation of law. Speaking rationally no new estate is created.

Again: According to the later Roman law, the absolute property rei singulæ cannot be acquired commonly without an apprehension or a taking possession of the thing by the acquirer: by an apprehension consequent on tradition, in case the thing be acquired through an alienation, or by an apprehension without tradition, in case the thing be acquired otherwise than through an alienation. But, in some cases, property vests in the acquirer without an act of apprehension. And in these cases, the passing or vesting of the property is styled by modern civilians ‘transitus legalis;’² that is to say, it passes by the law to the acquirer, without an act of his own, or, at least, without an apprehension by him; without that act of apprehension by him, which, in the other cases to which the cases in question are opposed, that particular act on his part is requisite.

2ndly. To distinguish certain well known titles.

2ndly. Another improper application of the expressions in question seems to be this:

Certain classes of titles, or of modes of acquisition, have concise names: as, for example, ‘occupancy,’ ‘alienation,’ ‘præscription,’ and so on.

But other classes having no concise names, and not being expressible without long circumlocutions, they are commonly lumped up together, and opposed to the classes which have such names, by the expression ‘ex lege,’ ‘ex lege simpliciter,’ ‘ex lege immediatè,’ etc. This, at least, appears to be one of the meanings which are annexed by the Roman lawyers and the modern Civilians to such expressions as ‘rights and duties ex lege,’ ‘ex lege simpliciter,’ and so on. The writers enumerated title by tradition, title by occupancy, title by præscription, and then having exhausted the titles which had obtained concise names, they came to other titles which they lumped together under the name of title ex lege. At least this is one of the meanings sometimes annexed to the term by the Roman lawyers and by modern Civilians. It answers to the use of the phrase quasi-contracts. Rights and duties which are said to be quasi ex contractu, are in truth rights and duties of various classes, which have no concise generic name at all, and are opposed, under the above expression, 897to rights and duties arising from contracts and from delicts. Various classes of modes of acquisition, having no concise general names, are lumped up under that name, and are opposed under it to those which have obtained such names.

There is, perhaps, a third improper application of the above expressions; but I do not feel quite certain on the subject. There are cases in which the law annexes to alienations, contracts, and other dispositions, certain consequences at the option of the parties, and other cases in which it annexes certain consequences, whether the parties will them or no. In the latter case, these consequences are said to be publici juris: meaning that they are so connected with the transactions that the parties cannot avoid them if they will. This is what is meant by the maxim to which I have formerly alluded, that jus publicum is not defeasible pactis privatis.

Now, where a consequence is annexed to a title, whether it is expected by the parties or not, or is made inseparable from the title, whether they wish it or not, those consequences may be said to arise by mere act of the law, as opposed to those which arise from the dispositions of the parties. There are several cases of this sort. In Equity (for example), the vendor has a lien on the estate, for the security of the purchase money. Though the parties should make no provision to that effect, by the terms of the contract, the law itself would annex that condition to the purchase.

The vendor might of course expressly relinquish his lien, but if nothing is said to the contrary, he has a lien. I am not sure whether he would be said to have it by mere operation of law.

In the Roman and in the French law, there is something analogous. In a marriage, whether it be so provided in the contract or not, the wife has a hypothèque légale on the goods of the husband for the security of her dower.

It is called hypothèque légale in opposition to any hypothèque or lien which she might acquire by special contract. It is sometimes also called a tacit as distinguished from an express hypothèque.

There may be other meanings of the phrases in question, but I do not recollect them.

These improper applications mostly arise from not considering that every right and duty must arise and be determined by law. They are all consequences of law; but some arise or are divested through a title, others without the intervention of any title, and these last can alone be said with correctness to arise from the law immediately.