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.

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