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Possessio F Ratr Is

possession, actual, law, ed, person, title and pos

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POSSESSIO F RATR IS (Lat. the brother's possession). A technical phrase applied in the English law relating to descents, to de note the possession by one in such privity with a person as to be considered the per son's own possession.

By the common law, the ancestor from whom the inheritance was taken by descent must have had actual seisin of the lands, either by his own entry, or by the posses sion of his own or his ancestor's lessee for years, or by being in the receipt of rent from the lessee of the freehold. But there are qualifications as to this rule, one of which arises from the doctrine of possessio fratris. The possession of a tenant for years, guardian, or brother is equivalent to that of the party himself, and is termed possessio fratris; Littl. sect. 8; Co. Litt. 15 a; 3 Wills. 516; 7 Term 386.

In Connecticut, Delaware, Georgia, Mas sachusetts, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, and Virginia, the real and personal estates of intestates are distributed among the heirs without any reference or regard to the actual seisin of the ancestor; Reeve, Desc. 377 ; Hillhouse v. Chester, 3 Day (Conn.) 166, 3 Am. Dec. 265; Gardner v. Collins, 2 Pet. (U. S.) 59, 7 L. Ed. 347; In Maryland, New Hampshire, North Carolina, and Ver mont, the doctrine of possessio fratris, it seems, is recognized ; Chirac v. Reinecker, 2 Pet. (U. S.) 625, 7 L. Ed. 538. Reeve, Desc. 377; 4 Kent 384.

By the possession of a thing we always conceive the condition in which not only one's own dealing with the thing is physi cally possible, every other person's deal ing with it is capable of being excluded. Thus, the seaman possesses his ship, but not the water in which it moves, although he makes each subserve his purpose.

It expresses the closest relation that can exist between a corporeal thing and the person who possesses it, implying an actual, physical contact, as by sitting or standing upon a thing ; Bryan v. Spivey, 109 N. C. 57, 13 S. D. 766.

Actual possession exists where the thing is in the immediate occupancy of the party. Simpson v. Blount, 14 N. C. 34.

Constructive possession is that which ex ists in contemplation of law, without actual personal occupation. Hubbard v. Austin, 11 Vt. 129. And see 2 Bla. Corn. 116.

There is no word more ambiguous in its meaning than possession. It is 'invariably

used to describe actual possession and con structive possession, which are often so shaded into one another that it is difficult to see where one ends and the other begins; National Safe Deposit Co. v. Stead, 232 U.

S. 58, 34 Sup. Ct. 209, 58 L. Ed. —.

"Possession is the occupation of anything with the intention of exercising the rights of ownership in respect to it." Hunter, Rom. Law 209. Natiwal possession (naturalis pos sessio) implies mere physical contact with a thing, apart from all attempted exercise of rights with respect to it. Taylor, Jurispr. 545. The lower degree of control was known to the later civilians as detentio. Id. 544.

In order to complete a possession, two things are required : that there be an oc cupancy, apprehension, or taking; that the taking be with an intent to possess (animus possidendi): hence persons who have no legal wills, as children and idiots, cannot possess or acquire possession ; Pothier ; Etienne. See 1 Mer. 358. But an infant of sufficient understanding may lawfully ac quire the possession of a thing ; Mitch. R. a 259.

Proof of the possession of property is com monly said to be prima facie evidencd of title to it; and this is so with respect to land, in which case it has been held that proof of possession is sufficient evidence of title to maintain an action against a powder company for damages caused by an explo sion ; Hazard Powder Co. v. Volger, 58 Fed. 152, 7 C. C. A. 130. This particular. phrase that possession is prima facie evidence of title has been very much criticised by Sir F. Pollock, who says that "it would be less in telligible at first sight, but not less correct to gay that in the developed system of com mon-law pleading and procedure as it exist ed down to the middle of this century, proof of title was evidence only of a right to pos sess." Poll. Torts 317. Under the common law forms of action, possession was of the utmost importance and was rather to be considered than ownership. "An owner in possession was protected against disturb ance, but the rights of an owner out of pos session were obscure and weak. To this day it continues so with regard to chattels. For many purposes the true owner of goods is the person, and the only person, entitled to immediate possession." Poll. Torts 316.

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