KFLCC Kingdom Law 2nd Ed.

POSSESSIO PACIFIOA

916

POSSESSION

session of an estate in fee-simple makes the sister to be heir. 3 Coke, 41; Broom, Max. 532. Possessio pacifica pour aims 60 faoit jus. Peaceable possession for sixty years gives a right. Jenk. Cent. 26. The detention and con trol, or the manual or ideal custody, of any thing which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. That condition of facts under which one can exer cise his power over a corporeal thing at his pleasure to the exclusion of all other per sons. See Staton v. Mullis, 92 N. C. 632; Sunol v. Hepburn, 1 Cal. 263; Cox v. Devin ney, 65 N. J. Law, 389, 47 Atl. 570; Churchill v. Onderdonk, 59 N. Y. 136; Rice v. Frayser (C. C.) 24 Fed. 460; Travers v. McElvain, 181 111. 382, 55 N. E. 135; Emmerson v. State, 33 Tex. Cr. R. 89, 25 S. W. 289; Slater v. Rawson, 6 Mete. (Mass.) 444. —Actual possession. This term, as used in the provisions of Rev. St. N. Y. p. 312, § 1, au thorizing proceedings to compel the determina tion of claims to real property, means a posses sion in fact effected by actual entry upon the premises; an actual occupation. Churchill v. Onderdonk, 59 N. Y. 134. It means an actual occupation or possession in fact, as contradis tinguished from that constructive one which the legal title draws after it. The word "actual" is used in the statute in opposition to virtual or constructive, and calls for an open, visible oc cupancy. Cleveland v. Crawford, 7 Hun (N. Y.) 616.— Adverse possession. The actual, open, and notorious possession and enjoyment of real property, or of any estate lying in grant, continued for a certain length of time, held adversely and in denial and opposition to the title of another claimant, or under circumstan ces which indicate an assertion or color of right or title on the part of the person maintaining it, as against another person who is out of posses sion. Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Taylor v. Philippi, 35 W. Va. 554, 14 S. E. 130; Pickett v. Pope, 74 Ala. 122; Mar tin v. Maine Cent. R. Co., 83 Me. 100, 21 Atl. 740; Dixon v. Cook, 47 Miss. 220.— Chose in possession. A thing (subject of personal prop erty) in actual possession, as distinguished from a "chose in action," which is not presently in the owner's possession, but which he has a right to demand, receive, or recover by suit.— Civil possession. In modern civil law and in the law of Louisiana, that possession which exists when a person ceases to reside in a house or on 'the land which he occupied, or to detain the movable which he possessed, but without intend ing to abandon the possession. It is the deten tion of a thing by virtue of a just title and under the conviction of possessing as owner. Civ. Code La. art. 3391 et seq.— Constructive possession. Possession not actual but assum ed to exist, where one claims to hold by virtue of some title, without having the actual occu pancy, as, where the owner of a tract of land, regularly laid out, is in possession of a part, he is constructively in possession of the whole. Fleming v. Maddox, 30 Iowa, 241.— Derivative possession. The kind of possession of one who is in the lawful occupation or custody of the property, but; not under a claim of title of his own, but under a right derived from anoth er, as, for example, a tenant, bailee, licensee, POSSESSION.

etc.— Dispossession. The act of ousting or re moving one from the possession of property pre viously held by him, which may be tortious and unlawful, as in the case of a forcible amotion, or in pursuance of law, as where a landlord "dispossesses" his tenant at the expiration of the term or for other cause by the aid of judi cial process.— Estate in possession. An es tate whereby a present interest passes to and resides in the tenant, not depending on any sub sequent circumstance or contingency; an estate where the tenant is in actual pernancy or re ceipt of the rents and profits.— Naked posses sion. The actual occupation of real estate, but without any apparent or colorable right to hold and continue such possession; spoken of as the lowest and most imperfect degree of title. 2 Bl. Comm. 195; Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S. W. 446.— Natural possession. That by which a man detains a thing corporeally, as, by occupying a house, cultivating ground, or retaining a movable in possession; natural possession is also defined to be the corporeal detention of a thing which we possess as belonging to us, without any title to that possession or with a title which is void. Civ. Code La. 1900, arts. 3428, 3430. And see Railroad Co: v. Le Rosen, 52 La. Ann. 192, 26 South. 854; Sunol v. Hepburn, 1 Cal. 262.— Open possession. Possession of real property is said to be "open" when held with out concealment or attempt at secrecy, or with out being covered up in the name of a third person, or otherwise attempted to be withdrawn from sight, but in such a manner that any per son interested can ascertain who is actually in possession by proper observation and inquiry. See Bass v. Pease, 79 111. App. 318.— Peace able possession. See PEACEABLE.— Posses sion money. In English law. The man whom the sheriff puts in possession of goods taken under a writ of fieri facias is entitled, while he continues so in possession, to a certain sum of money per diem, which is thence termed "pos session money." The amount is 3s. 6d. per day if he is boarded, or 5s. per day if he is not boarded. Brown.— Possession, writ of. Where the judgment in an action of ejectment is for the delivery of the land claimed, or its possession, this writ is used to put the plaintiff in possession. It is in the nature of execution. —Quasi possession is to a right what posses sion is to a thing; it is the exercise or enjoy ment of the right, not necessarily the continu ous exercise, but such an exercise as shows an intention to exercise it at any time when de sired. Sweet.— Scrambling possession. By this term is meant a struggle for possession on the land itself, not such a contest as is waged in the courts, or possession gained by an act of trespass, such as building a fence. Spiers v. Duane, 54 Cal. 177; Lobdell v. Keene, 85 Minn. 90, 88 N. W. 426; Dyer v. Reitz : 14 Mo. App. 45.— Unity of possession. Joint possession of two rights by several titles, as where a lessee of land acquires the title in fee-simple, which extinguishes the lease. The term also describes one of the essential properties of a joint estate, each of the tenants having the entire possession as well of every parcel as of the whole. 2 Bl. Comm. 182.— Vacant possession. An estate which has been abandoned, vacated, or forsaken by the tenant. In the older books, "possession" is some times used as the synonym of "seisin;" but, strictly speaking, they are entirely different terms. "The difference between possession and seisin is : Lessee for years is possesspd, and yet the lessor Is still seised; and there fore the terms of law are tha.t of chattels a man is possessed, whereas in feoffments, gifts in tail, and leases for life he is described as 'seised.'" Noy, Max. 64.