A lessee for years, who pays a rent, has the actual possession of the premises, and if the landlord enters the premises, except when rent is in arrear, or by virtue of the covenants in the lease, he is a trespasser. Still the owner who receives the rents is often said, in a sense, to be in possession, though he may never have had actual possession. This sense of possession is that which is expressed in the recent Statute of Limitations by the words "receipt of the profits." It might be called " legal possession," as it is for many purposes a possession which gives all the advantages of actual possession. But since "legal possession " has been used in a different sense, as will be shown hereafter, the expression cannot conveniently be applied in the case here considered. Nor can we use the phrase " posses sion in law ;" for that, as above defined, is the owner's right to possess, that is, his present right to actual possession, which in the case here supposed, the owner has not. There appears-then to be no one term, except possession simply, that can be used to express that kind of possession of land which a man has who has merely received rout from a lessee.
Possession, when coupled with the word estate, means a present right to possess. " An estate in possession gives a present right of isesseent enjoyment; " "an estate in reversion gives a present right of future enjoyment." (Preston, Estates,' i. S9.) In this sense of pos. session, an estate in possession is opposed to an estate in remainder or reversion ; but it does not imply actual possession. In the third section of the Act for the Limitations of Actions and Suits (3 & 4 Win. IV., 0. 27), an " estate or interest in possession " is opposed to an "estate or interest in reversion or remainder," and the actual posses Bien of land is referred to in the same section by the terms " possession or receipt of the profits of the land." [STATUTE or LIMITATIONS.] A man is said to be seised of a freehold estate ; but he is said to be possessed of a chattel real. The Statute of Uses does not apply to chattels reaL It remains to speak of a distinction in the word possession as applied to a real estate and a chattel personal. Both may be possessed, but the legal conclusion from the bare fact of possession is in the case of a real estate and of a personal chattel. "There is a marked difference between a real estate and a personal chattel : the latter is hold by possession ; a real estate, by title. Possession of an estate
is not even prinszt facie title. It may be by lease only or from year to year." (Lord Eldon, Hiern r. Mill, 13 'Ve., 114.) This seems to mean that, in the case of a chattel, possession is a presumption of ownership ; but that possession of land is not ; at least not a presumption of a freehold interest. Still it is so far a presumption of some interest, that if a man buys an estate from the owner, knowing that another man is in posesession of it, he has notice of whatever interest the person in possession may have in the land ; and therefore if the person um possession has a prior contract with the owner for purchasing the land, the second purchaser buys subject to the interest of the person in possession. (Daniels r. Davison, 16 Ye., 249; 17 Ye., 433.) It has been already stated that actual possession of land, or what is legally considered actual possession, is necessary in order to give the owner all the advantages of ownership. In the case of chattels personal, ownership is frequently acquired without or rather before actual possession, and it may always be so acquired by contract when the thing agreed to be bought and sold is clearly determined. Some times the ownership can only be acquired together with the possession, because the thing only becomes determined by the act of delivery or taking possession. In all cases, however, when personal chattels are bought and sold, it is often a matter of great nicety to determine whether there has been possession by the purchaser, either as the con dition Or means of establishing his ownership, or for the purpose of ascertaining from what time a thing has ceased to be in one person's possession and come into the possession of another.
Questions as to this matter often arise in cases of loss, of insolvency of a vendee, &c., when the chattel is transferred from the vendor to the vendee by being sent, in which case it is of necessity during a certain time on its journey, or as our law expresses it, in transitu. The solution of questions of this kind, which often occur in a com mercial country, is sometimes difficult, though many general principles are deducible from judicial decisions. The right of the vendor to stop the thing after it has commenced its journey, continues till the time at which the vendee is legally considered to have acquired possession.