the real action by writ of right for forty years more. Consequently it was held in England that the right of entry and the remedy by ejectment, might be barred, but that the "mere right" itself was left outstanding.15 To remedy this the Statute 3 & 4 William IV, c. 27 (1833), was enacted, which not only bars the remedy of ejectment but expressly abolishes real actions and extinguishes the former title after twenty years.16 By the Real Property Limitation Act of 187417 the period of limitation is reduced to twelve years from the time the right of action first accrued.

American statutes quite commonly follow the parent statute of James I. Illinois, for example, enacts:18

"That no person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years (1) after the right to bring such action or make such entry first accrued, or (2) within twenty years after he or those from, by, or under whom he claims, have been seized or possessed of the premises."

Since the owner is deemed to be seised or possessed unless there is another in adverse possession, actual or constructive, clauses one (1) and two (2) apparently come to exactly the same thing. The owner's mere absence from the land does not disable him from bringing an action against an intruder. The second clause as to seisin or possession is apparently an interesting relic of the provisions of the older type of statutes.19

The form of statutes of limitation varies; in some of them there are provisions expressly extinguishing the right or title of the former owner; most of them in terms merely bar the remedy by ejectment; but it is the almost invariable rule that the effect of the statute is not only to bar the remedy of ejectment, but also to take away all other remedy, right, and title of the former owner.20 It is well to 15 Trustees of Dundee Harbor v. Dougall, 1 MacQueen, H. L. Cas. 317 (1852); 3 CRUISE, DIGEST REAL PROP. 430, 436, 447.

16 See 10 LAW MAGAZINE, or QUARrt. Rev. of Jurisp. 357 (1833).

17 37 & 38 Vict. c. 57.

18 HURD'S ILL. Rev. Stat. (1917) ch. 83, § 1.

19 Agency Co. v. Short, 13 A. C. 793 (1888). See 5 CAL. L. REV. 429; People's Water Co. v. Boromeo, 31 Cal. App. 270, 160 Pac. 574 (1916). See also MICH. REV. STAT. (1838) 573, 574, § 1. In Riopelle v. Gilman, 23 Mich. 33 (1871), it is held to produce a different result as to the necessity of privity between successive holders. See note 102, infra.

20 United States v. Chandler, 209 U. S. 447, 450 (1908); Campbell v. Holt, 115 U. S. 620 (1885); Baker v. Oakwood, 123 N. Y. 16, 25, 25 N. E. 312 (1890).

notice that this result does not follow necessarily from the statute alone, but arises from the joint operation of the statute and the common law. If a person has a right and several remedies, the bar of one remedy is not the discharge of all the others.21

Under American statutes, as under the Statute of James I, there may be some remedies which are not expressly affected by the terms of the statute. But when the statute extinguishes the remedy in ejectment to recover possession, the common law and also equity say that the possession shall not be questioned by the former owner in any other manner, either by self-help, by action of trespass, or by a bill in equity. The earlier statutes of limitation did not mention bills in equity as subject to the bar; but nevertheless they were followed in equity as well as at law on the principle of analogy, and on the principle that where a thing is forbidden by law in one form it shall not be done in another.22 The judicature by its own rulings has thus imposed limitations, guiding itself by the policy of the statute to quiet the possessory title.

As the Wisconsin Supreme Court has pointed out,23 it would be a strange anomaly to hold that the law which bars the owner from recovering possession or the use of the land itself, after he has acquiesced in a usurped ownership by another for twenty years, should yet leave him at liberty to assert title in other ways as by action of trespass for mesne profits, by extra-judicial re-entry or by suit in equity to quiet title, for partition or for an accounting. It seems a necessary consequence of the policy underlying the limitation acts that one should be considered to have no right or title when the most essential incident or legal consequence of title, the right to recover possession, is barred. Hopeless confusion would result from the recognition of any such anomalous titles, without right of possession, surviving the statute. The maxim that where there is a right there is a remedy may be turned about e converso, so that where there is no remedy there is no right. The only cloud on the possessor's title is the true owner's right to recover possession

21 Hunt v. Burn, 2 Salk. 421, 422 (1702).

22 Humbert v. Trinity Church, 24 Wend. (N. Y.) 587 (1840); Elmendorf v. Taylor, 10 Wheat. (U. S.) 152, 174 (1825); Chapin v. Freeland, 142 Mass. 383, 8 N. E. 128 (1886); Smith v. Clark, 248 Ill. 255, 258, 93 N. E. 727 (1911); Wood v. Mich., etc. R. Co., 90 Mich. 212, 51 N. W. 363 (1892); Cholmondeley v. Clinton, 2 J. & W. 139, 155 (1820); Re Jolly, [1900] 2 Ch. 616.

23 Steinberg v. Salzman, 139 Wis. 118, 124, 120 N. W. 1008 (1909).

by entry or ejectment, or by some other remedy, and when these remedies are all taken away by the statute or by analogy thereto, the defect in the possessory title becomes cured.

It has indeed been said by some eminent judges that the effect of the statute is "to make a parliamentary conveyance of the land to the person in possession at the last moment when the period has elapsed." 24 As Gibson, C. J., puts it, "The instant of conception is the instant of birth," without any period of gestation or maturing of an inchoate title. The idea seems to be that the statute of limitations is a conveyancer like the Statute of Uses, which, when there is a deed by Doe to the use of Roe and his heirs, "executes the use," and,

"Like flash of electricity,

The land's transferr'd in fee to Roe,
Nothing at all remains in Doe." 25

But there is, in truth, no such transfer of title by the statute of limitations. The direct effect of the statute is negative, to extinguish the right of entry of the ousted owner. The indirect effect is to quiet the title of the possessor. Title is thus established by the joint operation of the statute and the common law. The possession of the adverse holder, although gained by manifest wrong, and although liable to be defeated by entry of the rightful owner, is per se a title good as shield or sword, either to hold or to recover possession, as against all others. Even the title of the original owner is affected ab initio, by disseisin, although not so much to-day as formerly. His "right of entry" should hardly be regarded, as Dean Ames regarded it, as being reduced to a mere chose in action. His remedy is limited, however, by the common law to asserting his rights by a direct proceeding to recover possession.26 The statute operates to relieve the adverse holder from this sole danger of eviction, and, being thus quieted, the once precarious possession

24 Per Parke, B., in Doe v. Sumner, 14 M. & W. 39 (1845). See also Scott v. Nixon, Dr. & War. 388, 405, 407 (1843); Rankin v. McMurtry, 24 L. R. Irish, 270, 297, 303 (1889); Graffius v. Tottenham, 1 Watts & S. (Pa.) 488, 494; Jordan v. Chambers, 226 Pa. 573, 75 Atl. 956 (1910). A paradox of Sugden's, 34 L. QUART. REV. 253 (July, 1918).

25 CRISP, CONVEYANCER, 3 ed., 107.

26 But, see Jos. Bingham, "Legal Possession," 13 MICH. L. REV. 535, 561, 623, 624, 629; Bethea v. Jeffres, 126 Ark. 194, 189 S. W. 666 (1916); Anderson v. Hapler, 34 Ill. 436 (1864). See 69 L. R. A. 762, note.

becomes a firm and indefeasible title even against the former owner as of the date when the disseisin or adverse possession commenced.27 Accordingly we must not confound the negative operation of the statute with the positive effect of a conveyance of the title from the true owner to the adverse possessor at the moment the statute has fully run. In Tichborne v. Weir 28 it is held that when one holds adversely to a lessee for ninety-nine years, the adverse possessor cannot be treated as an assignee so as to render him liable on the covenants of the lease. It is sometimes said, indeed, that the law presumes a conveyance by the true owner on the grounds of public policy when the right of entry is gone.29 But it is unnecessary to resort to the presumption or fiction of a conveyance.30 Adverse possession vests the possessor with the complete title as effectually as if there had been a conveyance by the former owner.31 But the title is independent, not derivative, and "relates back" to the inception of the adverse possession.32 The adverse possessor does not derive his title from the former owner, but from a new source of title, his own possession. The "investitive fact" is the disseisin and exercise of possession.33

It is only in case of incorporeal rights that title is acquired by length of adverse user. Title is not gained by length of adverse possession under the statute, except as against the true owner. In case of rights of way and other easements when acquired by prescription, the adverse user under claim of title is also the "investi

27 Re Atkinson & Horsell, [1912] 2 Ch. 1; Tichborne v. Weir, 67 L. T. 735 (1892); Perry v. Clissold [1907] A. C. 73; 1 Coм. L. REP. 363. Cf. La Salle v. Sanitary District, 260 Ill. 423, 429, 430, 103 N. E. 175 (1913). See Bryan v. Weems, 29 Ala. 423 (1856); AMES, LECTURES ON LEGAL HIST. 197-205; 3 ANGLO-AMERICAN ESSAYS, 567; LIGHTWOOD, TIME LIMIT ON ACTIONS, 117, 156; BANNING, LIMITATION OF Actions, 84; I DART, VENDORS & PURCH. 473; I HAYES, INTROD. TO CONV. 268.

28 67 L. T. 735 (1892).

29 Cadwalader v. Price, 111 Md. 310, 73 Atl. 694 (1909); Scottish Am. M. Co. v. Butler, 99 Miss. 56, 57, 71, 54 So. 666 (1910); Earnest v. Little River L. & L. Co., 109 Tenn. 427, 75 S. W. 1122, 1127 (1902).

30 East Jellico Coal Co. v. Hays, 133 Ky. 4, 117 S. W. 307 (1909); Armijo v. Armijo, 4 N. Mex. 133, 13 Pac. 92 (1883).

31 Toltec Ranch Co. v. Cook, 191 U. S. 532, 542 (1903).

32 Field v. Peoples, 180 Ill. 376, 383, 54 N. E. 304 (1899); Bellefontaine Co. v. Niedringhaus, 181 Ill. 426, 55 N. E. 184 (1899). Cf. La Salle v. Sanitary District, 260 Ill. 423, 429, 103 N. E. 175 (1913); AMES, LECTURES ON LEGAL HIST. 197; 3 ANGLOAMERICAN ESSAYS, 567.

33 Camp v. Camp, 5 Conn. 291 (1824); Price v. Lyon, 14 Conn. 279, 290 (1841); Coal Creek, etc. Co. v. East Tenn. I. & C. Co., 105 Tenn. 563; 59 S. W. 634, 636 (1900).

tive fact." The important difference is that apparently here there is no possessory title to the way either as against the servient owner or against the world, until the right has been asserted for the full prescriptive period; there is no "legally protected possession of an incorporeal thing." 34 Take the case of a way used by A for four years on B's land. Would the claimant and possessor of the quasidominant be protected in his use against third persons? Mr. Justice Holmes doubts it.35

The inchoate title by prescription, the potentiality of acquiring an easement within less than twenty years, is, however, something which can be transmitted with the quasi-dominant tenement so that the successive periods of user may be tacked where there is privity between the successive claimants.36 The legislative policy of prescription and adverse possession is the same, that titles to property should not remain uncertain and in dispute, but that continued de facto exercise and assertion of a right should be conclusive evidence of the de jure existence of the right.

"The earliest act of user proved, tends to prove a right then existing. . . . Such light evidence gains force by continued repetition, until at the end of twenty years it becomes, unexplained, conclusive evidence of right."37

Prescription, therefore, like adverse possession, operates to quiet titles which have been consistently asserted, and the requisites are in general the same.

If we had a scientific system for the registration of titles, adverse possession would be of far less importance. Accordingly we find that title by adverse possession is not recognized under some of the Torrens Acts, although it is under others.38 But under our crude conveyancing and recording systems this doctrine is indispensable as a protection to just titles. Every title in the country may easily

34 2 P. & M. HIST. ENG. LAW, 142; POLLOCK, FIRST BOOK OF JURISPRUDENCE, 184. 35 COMMON LAW, 241. Cf., however, TERRY, ANGLO-AMERICAN LAW, § 311, 297. See also Greenhalgh v. Brindley, [1901] 2 Ch. 324; Lord Battersea v. Commissioners, [1895] 2 Ch. 708.

36 McLean v. McRae, 50 N. S. R. 536, 33 D. L. R. 128, 132 (1917). 37 Wallace v. Fletcher, 30 N. H. 434 (1855).

38 But see "Statute of Limitations and The Land Titles Act," 47 CAN. L. J. 5; J. E. HOGG, AUSTRALIAN TORRENS SYSTEM, 85, 806; LIGHTWOOD, TIME LIMIT ON ACTIONS, 133; HURD'S ILL. REV. STAT. (1917) ch. 30, § 84. J. E. Hogg, "Registration of Title to Land," 28 YALE L. J. 54 (November, 1918).