[340] LECTURE X.
SUCCESSIONS AFTER DEATH.
In the Lecture on Possession, I tried to show that the notion of
possessing a right as such was intrinsically absurd. All rights
are consequences attached to filling some situation of fact. A
right which may be acquired by possession differs from others
simply in being attached to a situation of such a nature that it
may be filled successively by different persons, or by any one
without regard to the lawfulness of his doing so, as is the case
where the situation consists in having a tangible object within
one's power.
When a right of this sort is recognized by the law, there is no
difficulty in transferring it; or, more accurately, there is no
difficulty in different persons successively enjoying similar
rights in respect of the subject-matter. If A, being the
possessor of a horse or a field, gives up the possession to B,
the rights which B acquires stand on the same ground as A's did
before. The facts from which A's rights sprang have ceased to be
true of A, and are now true of B. The consequences attached by
the law to those facts now exist for B, as they did for A before.
The situation of fact from which the rights spring is continuing
one, and any one who occupies it, no matter how, has the rights
attached to it. But there is no possession possible of a
contract. The [341] fact that a consideration was given yesterday
by A to B, and a promise received in return, cannot be laid hold
of by X, and transferred from A to himself. The only thing can be
transferred is the benefit or burden of the promise, and how can
they be separated from the facts which gave rise to them? How, in
short, can a man sue or be sued on a promise in which he had no
part?
Hitherto it has been assumed, in dealing with any special right
or obligation, that the facts from which it sprung were true of
the individual entitled or bound. But it often happens,
especially in modern law, that a person acquires and is allowed
to enforce a special right, although that facts which give rise
to it are not true of him, or are true of him only in part. One
of the chief problems of the law is to explain the machinery by
which this result has been brought to pass.
It will be observed that the problem is not coextensive with the
whole field of rights. Some rights cannot be transferred by any
device or contrivance; for instance, a man's right a to bodily
safety or reputation. Others again are incident to possession,
and within the limits of that conception no other is necessary.
As Savigny said, "Succession does not apply to possession by
itself." /1/
But the notion of possession will carry us but a very little way
in our understanding of the modern theory of transfer. That
theory depends very largely upon the notion of succession, to use
the word just quoted from Savigny, and accordingly successions
will be the subject of this and the following Lecture. I shall
begin by explaining the theory of succession to persons deceased,
and after that is done shall pass to the theory of transfer
between living [342] people, and shall consider whether any
relation can be established between the two.
The former is easily shown to be founded upon a fictitious
identification between the deceased and his successor. And as a
first step to the further discussion, as well as for its own
sake, I shall briefly state the evidence touching the executor,
the heir, and the devisee. In order to understand the theory of
our law with regard to the first of these, at least, scholars are
agreed that it is necessary to consider the structure and
position of the Roman family as it was in the infancy of Roman
society.
Continental jurists have long been collecting the evidence that,
in the earlier periods of Roman and German law alike, the unit of
society was the family. The Twelve Tables of Rome still recognize
the interest of the inferior members of the family in the family
property. Heirs are called sui heredes, that is, heirs of
themselves or of their own property, as is explained by Gaius.
/1/ Paulus says that they are regarded as owners in a certain
sense, even in the lifetime of their father, and that after his
death they do not so much receive an inheritance as obtain the
full power of dealing with their property. /2/
Starting from this point it is easy to understand the [343]
succession of heirs to a deceased paterfamilias in the Roman
system. If the family was the owner of the property administered
by a paterfamilias, its rights remained unaffected by the death
of its temporary head. The family continued, although the head
died. And when, probably by a gradual change, /1/ the
paterfamilias came to be regarded as owner, instead of a simple
manager of the family rights, the nature and continuity of those
rights did not change with the title to them. The familia
continued to the heirs as it was left by the ancestor. The heir
succeeded not to the ownership of this or that thing separately,
but to the total hereditas or headship of the family with certain
rights of property as incident, /2/ and of course he took this
headship, or right of representing the family interests, subject
to the modifications effected by the last manager.
The aggregate of the ancestor's rights and duties, or, to use the
technical phrase, the total persona sustained by him, was easily
separated from his natural personality. For this persona was but
the aggregate of what had formerly been family rights and duties,
and was originally sustained by any individual only as the family
head. Hence it was said to be continued by the inheritance, /3/
and when the heir assumed it he had his action in respect of
injuries previously committed. /4/
Thus the Roman heir came to be treated as identified with his
ancestor for the purposes of the law. And thus it is clear how
the impossible transfers which I seek to explain were
accomplished in that instance. Rights to which B [344] as B could
show no title, he could readily maintain under the fiction that
he was the same person as A, whose title was not denied.
It is not necessary at this point to study family rights in the
German tribes. For it is not disputed that the modern executor
derives his characteristics from the Roman heir. Wills also were
borrowed from Rome, and were unknown to the Germans of Tacitus.
/1/ Administrators were a later imitation of executors,
introduced by statute for cases where there was no will, or
where, for any other reason, executors were wanting.
The executor has the legal title to the whole of the testator's
personal estate, and, generally speaking, the power of
alienation. Formerly he was entitled to the undistributed
residue, not, it may fairly be conjectured, as legatee of those
specific chattels, but because he represented the person of the
testator, and therefore had all the rights which the testator
would have had after distribution if alive. The residue is
nowadays generally bequeathed by the will, but it is not even now
regarded as a specific gift of the chattels remaining undisposed
of, and I cannot help thinking that this doctrine echoes that
under which the executor took in former times.
No such rule has governed residuary devises of real estate, which
have always been held to be specific in England down to the
present day. So that, if a devise of land should fail, that land
would not be disposed of by the residuary clause, but would
descend to the heir as if there had been no will.
Again, the appointment of an executor relates back to the date of
the testator's death. The continuity of person [345] is preserved
by this fiction, as in Rome it was by personifying the
inheritance ad interim.
Enough has been said to show the likeness between our executor
and the Roman heir. And bearing in mind what was said about the
heres, it will easily be seen how it came to be said, as it often
was in the old books, that the executor "represents the person of
his testator." /1/ The meaning of this feigned identity has been
found in history, but the aid which it furnished in overcoming a
technical difficulty must also be appreciated. If the executor
represents the person of the testator, there is no longer any
trouble in allowing him to sue or be sued on his testator's
contracts. In the time of Edward III., when an action of covenant
was brought against executors, Persay objected: "I never heard
that one should have a writ of covenant against executors, nor
against other person but the very one who made the covenant, for
a man cannot oblige another person to a covenant by his deed
except him who was party to the covenant." /2/ But it is useless
to object that the promise sued upon was made by A, the testator,
not by B, the executor, when the law says that for this purpose B
is A. Here then is one class of cases in which a transfer is
accomplished by the help of a fiction, which shadows, as fictions
so often do, the facts of an early stage of society, and which
could hardly have been invented had these facts been otherwise.
Executors and administrators afford the chief, if not the only,
example of universal succession in the English [346] law. But
although they succeed per universitatem, as has been explained,
they do not succeed to all kinds of property. The personal estate
goes to them, but land takes another course. All real estate not
disposed of by will goes to the heir, and the rules of
inheritance are quite distinct from those which govern the
distribution of chattels. Accordingly, the question arises
whether the English heir or successor to real estate presents the
same analogies to the Roman heres as the executor.
The English heir is not a universal successor. Each and every
parcel of land descends as a separate and specific thing.
Nevertheless, in his narrower sphere he unquestionably represents
the person of his ancestor. Different opinions have been held as
to whether the same thing was true in early German law. Dr.
Laband says that it was; /1/ Sohm takes the opposite view. /2/ It
is commonly supposed that family ownership, at least of land,
came before that of individuals in the German tribes, and it has
been shown how naturally representation followed from a similar
state of things in Rome. But it is needless to consider whether
our law on this subject is of German or Roman origin, as the
principle of identification has clearly prevailed from the time
of Glanvill to the present day. If it was not known to the
Germans, it is plainly accounted for by the influence of the
Roman law. If there was anything of the sort in the Salic law, it
was no doubt due to natural causes similar to those which gave
rise to the principle at Rome. But in either event I cannot doubt
that the modern doctrine has taken a good deal of its form, and
perhaps some of its substance, from the mature system [347] of
the civilians, in whose language it was so long expressed. For
the same reasons that have just been mentioned, it is also
needless to weigh the evidence of the Anglo-Saxon sources,
although it seems tolerably clear from several passages in the
laws that there was some identification. /1/
As late as Bracton, two centuries after the Norman conquest, the
heir was not the successor to lands alone, but represented his
ancestor in a much more general sense, as will be seen directly.
The office of executor, in the sense of heir, was unknown to the
Anglo-Saxons, /2/ and even in Bracton's time does not seem to
have been what it has since become. There is, therefore, no need
to go back further than to the early Norman period, after the
appointment of executors had become common, and the heir was more
nearly what he is now.
When Glanvill wrote, a little more than a century after the
Conquest, the heir was bound to warrant the reasonable gifts of
his ancestor to the grantees and their heirs; /3/ and if the
effects of the ancestor were insufficient to pay his debts, the
heir was bound to make up the deficiency from his own property.
/4/ Neither Glanvill nor his Scotch imitator, the Regiam
Majestatem, /5/ limits the liability to the amount of property
inherited from the same source. This makes the identification of
heir and ancestor as complete as that of the Roman law before
such a limitation was introduced by Justinian. On the other hand,
a century [348] later, it distinctly appears from Bracton, /1/
that the heir was only bound so far as property had descended to
him, and in the early sources of the Continent, Norman as well as
other, the same limitation appears. /2/ The liabilities of the
heir were probably shrinking. Britton and Fleta, the imitators of
Bracton, and perhaps Bracton himself, say that an heir is not
bound to pay his ancestor's debt, unless he be thereto especially
bound by the deed of his ancestor. /3/ The later law required
that the heir should be mentioned if he was to be held.
But at all events the identification of heir and ancestor still
approached the nature of a universal succession in the time of
Bracton, as is shown by another statement of his. He asks if the
testator can bequeath his rights of action, and answers, No, so
far as concerns debts not proved and recovered in the testator's
life. But actions of that sort belong to the heirs, and must be
sued in the secular court; for before they are so recovered in
the proper court, the executor cannot proceed for them in the
ecclesiastical tribunal. /4/
This shows that the identification worked both ways. The heir was
liable for the debts due from his ancestor, and he could recover
those which were due to him, until [349] the executor took his
place in the King's Courts, as well as in those of the Church.
Within the limits just explained the heir was also bound to
warrant property sold by his ancestor to the purchaser and his
heirs. /1/ It is not necessary, after this evidence that the
modern heir began by representing his ancestor generally, to seek
for expressions in later books, since his position has been
limited. But just as we have seen that the executor is still said
to represent the person of his testator, the heir was said to
represent the person of his ancestor in the time of Edward I. /2/
So, at a much later date, it was said that "the heir is in
representation in point of taking by inheritance eadam persona
cum antecessore," /3/ the same persona as his ancestor.
A great judge, who died but a few years ago, repeats language
which would have been equally familiar to the lawyers of Edward
or of James. Baron Parke, after laying down that in general a
party is not required to make profert of an instrument to the
possession of which he is not entitled, says that there is an
exception "in the cases of heir and executor, who may plead a
release to the ancestor or testator whom they respectively
represent; so also with respect to several tortfeasors, for in
all these cases there is a privity between the parties which
constitutes an identity of person." /4/
But this is not all. The identity of person was carried [350]
farther still. If a man died leaving male children, and owning
land in fee, it went to the oldest son alone; but, if he left
only daughters, it descended to them all equally. In this case
several individuals together continued the persona of their
ancestor. But it was always laid down that they were but one
heir. /1/ For the purpose of working out this result, not only
was one person identified with another, but several persons were
reduced to one, that they might sustain a single persona.
What was the persona? It was not the sum of all the rights and
duties of the ancestor. It has been seen that for many centuries
his general status, the sum of all his rights and duties except
those connected with real property, has been taken up by the
executor or administrator. The persona continued by the heir was
from an early day confined to real estate in its technical sense;
that is, to property subject to feudal principles, as
distinguished from chattels, which, as Blackstone tells us, /2/
include whatever was not a feud.
But the heir's persona was not even the sum of all the ancestor's
rights and duties in connection with real estate. It has been
said already that every fee descends specifically, and not as
incident to a larger universitas. This appears not so much from
the fact that the rules of descent governing different parcels
might be different, /3/ so that the same person would not be heir
to both, as from the very nature of feudal property. Under the
feudal system in its vigor, the holding of land was only one
[351] incident of a complex personal relation. The land was
forfeited for a failure to render the services for which it was
granted; the service could be renounced for a breach of
correlative duties on the part of the lord. /1/ It rather seems
that, in the beginning of the feudal period under Charlemagne, a
man could only hold land of one lord. /2/ Even when it had become
common to hold of more than one, the strict personal relation was
only modified so far as to save the tenant from having to perform
inconsistent services. Glanvill and Bracton /3/ a tell us that a
tenant holding of several lords was to do homage for each fee,
but to reserve his allegiance for the lord of whom he held his
chief estate; but that, if the different lords should make war
upon each other, and the chief lord should command the tenant to
obey him in person, the tenant ought to obey, saving the service
due to the other lord for the fee held of him.
We see, then, that the tenant had a distinct persona or status in
respect of each of the fees which he held. The rights and duties
incident to one of them had no relation to the rights and duties
incident to another. A succession to one had no connection with
the succession to another. Each succession was the assumption of
a distinct personal relation, in which the successor was to be
determined by the terms of the relation in question.
The persona which we are seeking to define is the estate. Every
fee is a distinct persona, a distinct hereditas, or inheritance,
as it has been called since the time of Bracton. We have already
seen that it may be sustained by more [352] than one where there
are several heirs, as well as by one, just as a corporation may
have more or less members. But not only may it be divided
lengthwise, so to speak, among persons interested in the same way
at the same time: it may also be cut across into successive
interests, to be enjoyed one after another. In technical
language, it may be divided into a particular estate and
remainders. But they are all parts of the same fee, and the same
fiction still governs them. We read in an old case that "he in
reversion and particular tenant are but one tenant." /1/ This is
only a statement of counsel, to be sure; but it is made to
account for a doctrine which seems to need the explanation, to
the effect that, after the death of the tenant for life, he in
reversion might have error or attaint on an erroneous judgment or
false verdict given against the tenant for life. /2/
To sum up the results so far, the heir of modern English law gets
his characteristic features from the law as it stood soon after
the Conquest. At that time he was a universal successor in a very
broad sense. Many of his functions as such were soon transferred
to the executor. The heir's rights became confined to real
estate, and his liabilities to those connected with real estate,
and to obligations of his ancestor expressly binding him. The
succession to each fee or feudal inheritance is distinct, not
part of the sum of all the ancestor's rights regarded as one
whole. But to this day the executor in his sphere, and the heir
in his, represent the person of the deceased, and are treated as
if they were one with him, for the purpose of settling their
rights and obligations.
The bearing which this has upon the contracts of the [353]
deceased has been pointed out. But its influence is not confined
to contract; it runs through everything. The most striking
instance, however, is the acquisition of prescriptive rights.
Take the case of a right of way. A right of way over a neighbor's
land can only be acquired by grant, or by using it adversely for
twenty years. A man uses a way for ten years, and dies. Then his
heir uses it ten years. Has any right been acquired? If common
sense alone is consulted, the answer must be no. The ancestor did
not get any right, because he did not use the way long enough.
And just as little did the heir. How can it better the heir's
title that another man had trespassed before him? Clearly, if
four strangers to each other used the way for five years each, no
right would be acquired by the last. But here comes in the
fiction which has been so carefully explained. From the point of
view of the law it is not two persons who have used the way for
ten years each, but one who has used it for twenty. The heir has
the advantage of sustaining his ancestor's and the right is
acquired.
LECTURE X.
SUCCESSIONS INTER VIVOS
I now reach the most difficult and obscure part of the subject.
It remains to be discovered whether the fiction of identity was
extended to others besides the heir and executor. And if we find,
as we do, that it went but little farther in express terms, the
question will still arise whether the mode of thought and the
conceptions made possible by the doctrine of inheritance have not
silently modified the law as to dealings between the living. It
seems to me demonstrable that their influence has been profound,
and that, without understanding the theory of inheritance, it is
impossible to understand the theory of transfer inter vivos.
[354] The difficulty in dealing with the subject is to convince
the sceptic that there is anything to explain. Nowadays, the
notion that a right is valuable is almost identical with the
notion that it may be turned into money by selling it. But it was
not always so. Before you can sell a right, you must be able to
make a sale thinkable in legal terms. I put the case of the
transfer of a contract at the beginning of the Lecture. I have
just mentioned the case of gaining a right by prescription, when
neither party has complied with the requirement of twenty years'
adverse use. In the latter instance, there is not even a right at
the time of the transfer, but a mere fact of ten years' past
trespassing. A way, until it becomes a right of way, is just as
little susceptible of being held by a possessory title as a
contract. If then a contract can be sold, if a buyer can add the
time of his seller's adverse user to his own, what is the
machinery by which the law works out the result?
The most superficial acquaintance with any system of law in its
earlier stages will show with what difficulty and by what slow
degrees such machinery has been provided, and how the want of it
has restricted the sphere of alienation. It is a great mistake to
assume that it is a mere matter of common sense that the buyer
steps into the shoes of the seller, according to our significant
metaphor. Suppose that sales and other civil transfers had kept
the form of warlike capture which it seems that they had in the
infancy of Roman law, /1/ and which was at least [355] partially
retained in one instance, the acquisition of wives, after the
transaction had, in fact, taken the more civilized shape of
purchase. The notion that the buyer came in adversely to the
seller would probably have accompanied the fiction of adverse
taking, and he would have stood on his own position as founding a
new title. Without the aid of conceptions derived from some other
source, it would have been hard to work out a legal transfer of
objects which did not admit of possession.
A possible source of such other conceptions was to be found in
family law. The principles of inheritance furnished a fiction and
a mode of thought which at least might have been extended into
other spheres. In order to prove that they were in fact so
extended, it will be necessary to examine once more the law of
Rome, as well as the remains of German and Anglo-Saxon customs.
I will take up first the German and Anglo-Saxon laws which are
the ancestors of our own on one side of the house. For although
what we get from those sources is not in the direct line of the
argument, it lays a foundation for it by showing the course of
development in different fields.
The obvious analogy between purchaser and heir seems to have been
used in the folk-laws, but mainly for another purpose than those
which will have to be considered in the English law. This was to
enlarge the sphere of alienability. It will be remembered that
there are many traces of family ownership in early German, as
well as in early Roman law; and it would seem that the transfer
[356] of property which originally could not be given outside the
family, was worked out through the form of making the grantee an
heir.
The history of language points to this conclusion. Heres, as
Beseler /1/ and others have remarked, from meaning a successor to
the property of a person deceased, was extended to the donee
mortis causa, and even more broadly to grantees in general.
Hereditare was used in like manner for the transfer of land.
Hevin is quoted by Laferriere /2/ as calling attention to the
fact that the ancient usage was to say heriter for purchase,
heritier for purchaser, and desheriter for sell.
The texts of the Salic law give us incontrovertible evidence. A
man might transfer the whole or any part of his property /3/ by
delivering possession of it to a trustee who, within twelve
months, handed it over to the beneficiaries. /4/ To those, the
text reads, whom the donor has named heredes (quos heredes
appellavit). Here then was a voluntary transfer of more or less
property at pleasure to persons freely chosen, who were not
necessarily universal successors, if they ever were, and who
nevertheless took under the name heredes. The word, which must
have meant at first persons taking by descent, was extended to
persons taking by purchase. /5/ If the word became enlarged in
meaning, it is probably because the thought which it conveyed was
turned to new uses. The transaction seems [357] to have fallen
half-way between the institution of an heir and a sale. The later
law of the Ripuarian Franks treats it more distinctly from the
former point of view. It permits a man who has no sons to give
all his property to whomsoever he chooses, whether relatives or
strangers, as inheritance, either by way of adfathamire, as the
Salic form was called, or by writing or delivery. /1/
The Lombards had a similar transfer, in which the donee was not
only called heres, but was made liable like an heir for the debts
of the donor on receiving the property after the donor's death.
/2/2 By the Salic law a man who could not pay the wergeld was
allowed to transfer formally his house-lot, and with it the
liability. But the transfer was to the next of kin. /3/
The house-lot or family curtilage at first devolved strictly
within the limits of the family. Here again, at least in England,
freedom of alienation seems to have grown up by gradually
increased latitude in the choice of successors. If we may trust
the order of development to be noticed in the early charters,
which it is hard to believe [358] accidental, although the
charters are few, royal grants at first permitted an election of
heirs among the kindred, and then extended it beyond them. In a
deed of the year 679, the language is, "as it is granted so do
you hold it and your posterity." One a century later reads,
"which let him always possess, and after his death leave to which
of his heirs he will." Another, "and after him with free power
(of choice) leave to the man of his kin to whom he wishes to"
(leave it). A somewhat earlier charter of 736 goes a step
further: "So that as long as he lives he shall have the power of
holding and possessing (and) of leaving it to whomsoever he
choose, either in his lifetime, or certainly after his death." At
the beginning of the ninth century the donee has power to leave
the property to whomsoever he will, or, in still broader terms,
to exchange or grant in his lifetime, and after his death to
leave it to whom he chooses,--or to sell, exchange, and leave to
whatsoever heir he chooses. /1/ This choice of heirs [359]
recalls the quos heredes appellavit of the Salic law just
mentioned, and may be compared with the language of a Norman
charter of about the year 1190: "To W. and his heirs, to wit
those whom he may constitute his heirs." /1/
A perfect example of a singular succession worked out by the
fiction of kinship is to be found in the story of Burnt Njal, an
Icelandic saga, which gives us a living picture of a society
hardly more advanced than the Salian Franks, as we see them in
the Lex Salica. A lawsuit was to be transferred by the proper
plaintiff to another more versed in the laws, and better able to
carry it on,-- in fact, to an attorney. But a lawsuit was at that
time the alternative of a feud, and both were the peculiar affair
of the family concerned. /2/ Accordingly, when a suit for killing
a member of the family was to be handed over to a stranger, the
innovation had to be reconciled with the theory that such suit
belonged only to the next of kin. Mord is to take upon himself
Thorgeir's suit against Flosi for killing Helgi, and the form of
transfer is described as follows.
"Then Mord took Thorgeir by the hand and named two witnesses to
bear witness, 'that Thorgeir Thofir's son hands me over a suit
for manslaughter against Flosi Thord's son, to plead it for the
slaying of Helgi Njal's son, with all those proofs which have to
follow the suit. Thou handest over to me this suit to plead and
to settle, and to enjoy all rights in it, as though I were the
rightful next of kin. Thou handest it over to me by law; and I
[360] take it from thee by law.'" Afterwards, these witnesses
come before the court, and bear witness to the transfer in like
words: "He handed over to him then this suit, with all the proofs
and proceedings which belonged to the suit, he handed it over to
him to plead and to settle, and to make use of all rights, as
though he were the rightful next of kin. Thorgeir handed it over
lawfully, and Mord took it lawfully." The suit went on,
notwithstanding the change of hands, as if the next of kin were
plaintiff. This is shown by a further step in the proceedings.
The defendant challenges two of the court, on the ground of their
connection with Mord, the transferee, by blood and by baptism.
But Mord replies that this is no good challenge; for "he
challenged them not for their kinship to the true plaintiff, the
next of kin, but for their kinship to him who pleaded the suit."
And the other side had to admit that Mord was right in his law.
I now turn from the German to the Roman sources. These have the
closest connection with the argument, because much of the
doctrine to be found there has been transplanted unchanged into
modern law.
The early Roman law only recognized as relatives those who would
have been members of the same patriarchal family, and under the
same patriarchal authority, had the common ancestor survived. As
wives passed into the families of their husbands, and lost all
connection with that in which they were born, relationship
through females was altogether excluded. The heir was one who
traced his relationship to the deceased through males alone. With
the advance of civilization this rule was changed. The praetor
gave the benefits of the inheritance to the blood relations,
although they were not heirs, and could [361] not be admitted to
the succession according to the ancient law. /1/ But the change
was not brought about by repealing the old law, which still
subsisted under the name of the jus civile. The new principle was
accommodated to the old forms by a fiction. The blood relation
could sue on the fiction that he was an heir, although he was not
one in fact. /2/
One the early forms of instituting an heir was a sale of the
familia or headship of the family to the intended heir, with all
its rights and duties. /3/ This sale of the universitas was
afterwards extended beyond the case of inheritance to that of
bankruptcy, when it was desired to put the bankrupt's property
into the hands of a trustee for distribution. This trustee also
could make use of the fiction, and sue as if he had been the
bankrupt's heir. /4/ We are told by one of the great
jurisconsults that in general universal successors stand in the
place of heirs. /5/
The Roman heir, with one or two exceptions, was always a
universal successor; and the fiction of heirship, as such, could
hardly be used with propriety except to enlarge the sphere of
universal successions. So far as it extended, however, all the
consequences attached to the original fiction of identity between
heir and ancestor followed as of course.
[362] To recur to the case of rights acquired by prescription,
every universal successor could add the time of his predecessor's
adverse use to his own in order to make out the right. There was
no addition, legally speaking, but one continuous possession.
The express fiction of inheritance perhaps stopped here. But when
a similar joinder of times was allowed between a legatee or
devisee (legatarius) and his testator, the same explanation was
offered. It was said, that, when a specific thing was left to a
person by will, so far as concerned having the benefit of the
time during which the testator had been in possession for the
purpose of acquiring a title, the legatee was in a certain sense
quasi an heir. /1/ Yet a legatarius was not a universal
successor, and for most purposes stood in marked contrast with
such successors. /2/
Thus the strict law of inheritance had made the notion familiar
that one man might have the advantage of a position filled by
another, although it was not filled, or was only partially
filled, by himself; and the second fiction, by which the
privileges of a legal heir in this respect as well as others had
been extended to other persons, broke down the walls which might
otherwise have confined those privileges to a single case. A new
conception was introduced into the law, and there was nothing to
hinder its further application. As has been shown, it was applied
in terms to a sale of the universitas for business purposes, and
to at least one case where the succession was confined to a
single specific thing. Why, then, might not every gift or sale be
regarded as a succession, so far as to insure the same
advantages?
[363] The joinder of times to make out a title was soon allowed
between buyer and seller, and I have no doubt, from the language
always used by the Roman lawyers, that it was arrived at in the
way I have suggested. A passage from Scaevola (B. C. 30) will
furnish sufficient proof. Joinder of possessions, he says, that
is, the right to add the time of one's predecessor's holding to
one's own, clearly belongs to those who succeed to the place of
others, whether by contract or by will: for heirs and those who
are treated as holding the place of successors are allowed to add
their testator's possession to their own. Accordingly, if you
sell me a slave I shall have the benefit of your holding. /1/
The joinder of times is given to those who succeed to the place
of another. Ulpian cites a like phrase from a jurisconsult of the
time of the Antonines,-- "to whose place I have succeeded by
inheritance, or purchase, or any other right." /2/ Succedere in
locum aliorum, like sustinere personam, is an expression of the
Roman lawyers for those continuations of one man's legal position
by another of which the type was the succession of heir to
ancestor. Suecedere alone is used in the sense of inherit, /3/
and successio in that of "inheritance." /4/ The succession par
excellence was the inheritance; and it is believed that scarcely
any instance will be found in the Roman sources where
"succession" does not convey that analogy, and indicate the
partial [364] assumption, at least, of a persona formerly
sustained by another. It clearly does so in the passage before
us.
But the succession which admits a joinder of times is not
hereditary succession alone. In the passage which has been cited
Scaevola says that it may be by contract or purchase, as well as
by inheritance or will. It may be singular, as well as universal.
The jurists often mention antithetically universal successions
and those confined to a single specific thing. Ulpian says that a
man succeeds to another's place, whether his succession be
universal or to the single object. /1/
If further evidence were wanting for the present argument, it
would be found in another expression of Ulpian's. He speaks of
the benefit of joinder as derived from the persona of the
grantor. "He to whom a thing is granted shall have the benefit of
joinder from the persona of his grantor." /2/ A benefit cannot be
derived from a persona except by sustaining it.
It farther appears pretty plainly from Justinian's Institutes and
the Digest, that the benefit was not extended to purchasers in
all cases until a pretty late period. /3/
Savigny very nearly expressed the truth when he said, somewhat
broadly, that "every accessio, for whatever purpose, presupposes
nothing else than a relation of juridical [365] succession
between the previous and present possessor. For succession does
not apply to possession by itself." /1/ And I may add, by way of
further explanation, that every relation of juridical succession
presupposes either an inheritance or a relation to which, so far
as it extends, the analogies of the inheritance may be applied.
The way of thinking which led to the accessio or joinder of times
is equally visible in other cases. The time during which a former
owner did not use an casement was imputed to the person who had
succeeded to his place. /2/ The defence that the plaintiff had
sold and delivered the thing in controversy was available not
only to the purchaser, but to his heirs or to a second purchaser,
even before delivery to him, against the successors of the
seller, whether universal or only to the thing in question. /3/
If one used a way wrongfully as against the predecessor in title,
it was wrongful as against the successor, whether by inheritance,
purchase, or any other right. /4/ The formal oath of a party to
an action was conclusive in favor of his successors, universal or
singular. /5/ Successors by purchase or gift had the [366]
benefit of agreements made with the vendor. /1/ A multitude of
general expressions show that for most purposes, whether of
action or defence, the buyer stood in the shoes of the seller, to
use the metaphor of our own law. /2/ And what is more important
than the result, which often might have been reached by other
ways, the language and analogies are drawn throughout from the
succession to the inheritance.
Thus understood, there could not have been a succession between a
person dispossessed of a thing against his will and the wrongful
possessor. Without the element of consent there is no room for
the analogy just explained. Accordingly, it is laid down that
there is no joinder of times when the possession is wrongful, /3/
and the only enumerated means of succeeding in rem are by will,
sale, gift, or some other right.
The argument now returns to the English law, fortified with some
general conclusions. It has been shown that in both the systems
from whose union our law arose the rules governing conveyance, or
the transfer of specific [367] objects between living persons,
were deeply affected by notions drawn from inheritance. It had
been shown previously that in England the principles of
inheritance applied directly to the singular succession of the
heir to a specific fee, as well as to the universal succession of
the executor. It would be remarkable, considering their history,
if the same principles had not affected other singular
successions also. It will soon appear that they have. And not to
be too careful about the order of proof, I will first take up the
joinder of times in prescription, as that has just been so fully
discussed. The English law of the subject is found on examination
to be the same as the Roman in extent, reason, and expression. It
is indeed largely copied from that source. For servitudes, such
as rights of way, light, and the like, form the chief class of
prescriptive rights, and our law of servitudes is mainly Roman.
Prescriptions, it is said, "are properly personal, and therefore
are always alleged in the person of him who prescribes, viz. that
he and all those whose estate he hath, &c.; therefore, a bishop
or a parson may prescribe, ... for there is a perpetual estate,
and a perpetual succession and the successor hath the very same
estate which his predecessor had, for that continues, though the
person alters, like the case of the ancestor and the heir." /1/
So in a modern case, where by statute twenty years' dispossession
extinguished the owner's title, the Court of Queen's Bench said
that probably the right would be transferred to the possessor "if
the same person, or several persons, claiming one from the other
by descent, will [368] or conveyance, had been in possession for
the twenty years." "But .... such twenty years' possession must
be either by the same person, or several persons claiming one
from the other, which is not the case here." /1/
In a word, it is equally clear that the continuous possession of
privies in title, or, in Roman phrase, successors, has all the
effect of the continuous possession of one, and that such an
effect is not attributed to the continuous possession of
different persons who are not in the same chain of title. One who
dispossesses another of land cannot add the time during which his
disseisee has used a way to the period of his own use, while one
who purchased can. /2/
The authorities which have been quoted make it plain that the
English law proceeds on the same theory as the Roman. One who
buys land of another gets the very same estate which his seller
had. He is in of the same fee, or hereditas, which means, as I
have shown, that he sustains the same persona. On the other hand,
one who wrongfully dispossesses another,--a disseisor,--gets a
different estate, is in of a new fee, although the land is the
same; and much technical reasoning is based upon this doctrine.
In the matter of prescription, therefore, buyer and seller were
identified, like heir and ancestor. But the question [369]
remains whether this identification bore fruit in other parts of
the law also, or whether it was confined to one particular
branch, where the Roman law was grafted upon the English stock.
There can be no doubt which answer is most probable, but it
cannot be proved without difficulty. As has been said, the heir
ceased to be the general representative of his ancestor at an
early date. And the extent to which even he was identified came
to be a matter of discussion. Common sense kept control over
fiction here as elsewhere in the common law. But there can be no
doubt that in matters directly concerning the estate the
identification of heir and ancestor has continued to the present
day; and as an estate in fee simple has been shown to be a
distinct persona, we should expect to find a similar
identification of buyer and seller in this part of the law, if
anywhere.
Where the land was devised by will, the analogy applied with
peculiar ease. For although there is no difference in principle
between a devise of a piece of land by will and a conveyance of
it by deed, the dramatic resemblance of a devisee to an heir is
stronger than that of a grantee. It will be remembered that one
of the Roman jurists said that a legatarius (legatee or devisee)
was in a certain sense quasi heres. The English courts have
occasionally used similar expressions. In a case where a testator
owned a rent, and divided it by will among his sons, and then one
of the sons brought debt for his part, two of the judges, while
admitting that the testator could not have divided the tenant's
liability by a grant or deed in his lifetime, thought that it was
otherwise with regard to a division by will. Their reasoning was
that "the devise is quasi [370] an act of law, which shall inure
without attornment, and shall make a sufficient privity, and so
it may well be apportioned by this means." /1/ So it was said by
Lord Ellenborough, in a case where a lessor and his heirs were
entitled to terminate a lease on notice, that a devisee of the
land as heres factus would be understood to have the same right.
/2/
But wills of land were only exceptionally allowed by custom until
the reign of Henry VIII., and as the main doctrines of
conveyancing had been settled long before that time, we must look
further back and to other sources for their explanation. We shall
find it in the history of warranty. This, and the modern law of
covenants running with the land, will be treated in the next
Lecture.