Nature and Importance of Legal Possession

To impress these unfamiliar facts on our consciousness, so that we shall not lose sight of them during the rest of our discussion, so that we shall not slur them or cloud them by vague use of symbolic ideas or terms concerning property and title, let us repeat the essence of the legal situation. Jackson is the holder of a fee simple acquired tortiously. His title to that fee--i. e. the facts which would induce the courts upon occasion to give him the remedies "vindicating" the existence of this vested fee in him--consist in his actual exclusive use and control of Y (legally equivalent to occupation) plus his initiatory appropriation intent to hold Y as his own. Smith has no fee in Y. He is disseised.

He has only a chose in action against Jackson to get back his fee through the prosecution of certain remedies. Jackson has not good title to retain the fee against a proper proceeding by Smith. Smith's title to his remedies against Jackson consists of the facts establishing his former legal possession, the fact of the disseisin by Jackson, the fact that Jackson is withholding the land from Smith, and the fact that there is no valid defense available to Jackson against this title.