In order to lay the foundation of possession as such, there must be detention, and there must also be the intention to possess, or the "animus possidendi." Consequently tbe"animus possidendi " consists in the Intention of exercising ownership. But this ownership may either be a person's own ownership or that of another : if the latter, there is no such "animus possidendi " as makes detention amount to possession. In the former case a man is a possessor, because he treats the thing as his own : it is not necessary that he should believe it to be his own.
Whether then we are considering possession as such, or that posses sion which is concurrently acquired with ownership, or which com pletes the acquisition of, or is the exercise of, ownership, the material fasts of possession are the same. When ownership is transferred from one man to another, every system of law must require some evidence of it. But the evidence of the transfer of ownership may ho entirely independent of the evidence of acquisition of possession; and also the evidence of the acquisition of possession may be inseparable from that of the acquisition of ownership. There must then generally be some act which shall bo evidence of the acquisition of possession, whether possession as such is obtaine(1 without ownership, or possession accom panied by ownership, or possession as necessary to the complete acquisition of ownership, or possession as simply the exercise of ownership.
the oldest law writer from whom we obtain any compre hensive notion of our whole system, has framed his notions of posses sion on and borrowed his definitions from the Roman law. Whether he has always rightly understood them is a matter that would require investigation.
(c. 17) noes and selaina as synonymous. He es that it is not for one man's right to be transferred to another, unless that other obtain "seisina ; " and he adds," possessio sive seisina multiplex est." He defines possessio to be " corporalis rei detentio f., corporis et animi cum juris adminiculo coucurrente." He therefore limits it to corporeal things, for incorporeal things are inca pable of tradition or delivery, but may be said "quasi possideri ;" and he requires both the corporeal act and the animus together with right, in order to give possessio, which, thus understood, is complete owner ship. Accordingly verus possessor is owner. (Fleta, iii., c. 3, a. 1.) He divides possessio into " civilis, qua: animo tantum tenetur," that is, in which there is an intention to hold; and " naturalis, quo corpore ;" and this latter may be just, that is, with good title ; or unjust, that is, Without good title. To acquire complete possession, it must be acquired "anima et corpore :" there must be both the mental affection possidendi aj'eetus (as Bracton elsewhere calls it, foL 40) and the cor poreal act; possession can only be completely lost "ammo et corpora," for it may be lost " corpore," and retained "anima." Among various kinds of possession he enumerates nuda, where a person has no right to the thing; and vestita, where he has " jus, titulus, tempus." As an instance of a ease, where there is "nihil juris in re, sect aliquid posses sionis," ho mentions the case of a man being seised or possessed by intrusion. As another kind of possession, but which is manifestly distinguishable from the others, he mentions the possession of a eustos creditor, or any person of the kind. These examples will bo sufficient
to show that the senses of possesslo at that time were very various. The essential part of all of them is detentio.
In the transfers of freeholds, mentioned by Bracton, traditio or livery is defined to be "in possessionem induce() de re corporali ;" as soon as this traditio is made by the owner, the person to whom it is made has " liberum tenementurn," a freehold estate (Bracton, fol. 39), " propter conjunctionetn juris et seisinae et mutuum utriusque partis con sensum." A person who held land for a term of years (firmarius) had no "liberum tenementum" (foL 27), but he was certainly said" possiderc," but there was not the " conjunctio juris et seisinae," that is, a possessio which made a liberate tenementum. Again (c. 15), when Bracton is treating of one cause or title of possession being turned into another, he says that he who has the tams fructus and the terminus, or term of years, may, during its continuance, and while ho is thus in posses sion, acquire "liberum tenementum," if the proper formalities are observed, "so that there shall not be wanting proof of the new acqui sition." It appears that the owner (dominus) was not said to possess during the continuance of the term; for it is said (fol. 32) "that the donor and true owner, with the consent of the tenant (towns), might change one title of possession into another without any change of the possession; nor is it necessary to resume the thing that has been once given and possessed, in order that it may be possessed by anew title." It remains to attempt to show some of the many senses in which possession has been or is still used in English law. There seems to have been always a fundamental distinction.as to the use and meaning of this word, between land and moveable chattels, of which something more will presently be said. Some of our old writers make the follow ing division of possession as applied to land: " Possession is actual and in law : actual possession is when a man actually enters lands and tenements to him descended ; possession in law is when lands and tenements descend to a man, and he hath not yet actually entered into them." (Staundf., Pl. Cor.,' foL 193 ; Cowel.) Now, this actual possession, that is, possessio according to Bracton's definition, is the only possession Included in this definition, that is, properly so called. The possession in law is merely the owner's right to possess. This possession in law, that is, ownership and the right to possess is not full ownership, for if the right to possess is not exercised, that is, does not become an actual possession, it will be lost in course of time. (3 & 4 Wm. IV., c. 27.) It becomes an actual possession by entry, that is, by the owner entering on the land or exercising ownership over it. What shall be sufficient to constitute entry so as to give the owner all the advantages of actual possession, may sometimes be difficult to determine ; but actual entry is not always necessary for that purpose. The receipt of the rent from a lessee for years, who has the actual possession of the land, gives to the owner all the legal advantages which are derived from his actual entry.