3. Powers of sale. This is a form of security seldom found in isolation, for it is usually incidental to the right of possession conferred by one or other of the two preceding forms of lien. There is no reason, however, why it should not in itself form an effective security.
4. Powers of forfeiture—consisting in a power vested in the creditor of destroying in his own interest some adverse right vested in the debtor. Examples are a landlord’s right of re-entry upon his tenant, and a vendor’s right of forfeiting the deposit paid by the purchaser.
5. Charges—consisting in the right of a creditor to receive payment out of some specific fund or out of the proceeds of the realisation of specific property. The fund or property is said to be charged with the debt which is thus payable out of it.
§ 161. Modes of Acquisition: Possession.
Having considered the various forms which proprietary rights in rem assume, we proceed to examine the modes of their acquisition. An attempt to give a complete list of these titles would here serve no useful purpose, and we shall confine our attention to four of them which are of primary importance. These are the following: Possession, Prescription, Agreement, and Inheritance.
The possession of a material object is a title to the ownership of it. The de facto relation between person and thing brings the de jure relation along with it. He who claims a chattel or a piece of land as his, and makes good his claim in fact by way of possession, makes it good in law also by way of ownership. There is, however, an important distinction to be drawn. For the thing so possessed may, or may not, already belong to some other person. If, when possession of it is taken by the claimant, it is as yet the property of no one—res nullius as the Romans said—the possessor acquires a title good against all the world. The fish of the sea and the fowls of the air belong by an absolute title to him who first succeeds in obtaining possession of them. This mode of acquisition is known in Roman law as occupatio.
On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because a prior, title in themselves. Save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same, whether I bought it honestly, or found it, or abstracted it from the pocket of some one else. If it is stolen from me, the law will help me to the recovery of it. I can effectually sell it, lend it, give it away, or bequeath it, and it will go on my death intestate to my next of kin. Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds it, as I do, subject to the superior claims of the original owner.
A thing owned by one man and thus adversely possessed by another has in truth two owners. The ownership of the one is absolute and perfect, while that of the other is relative and imperfect, and is often called, by reason of its origin in possession, possessory ownership.
If a possessory owner is wrongfully deprived of the thing by a person other than the true owner, he can recover it. For the defendant cannot set up as a defence his own possessory title, since it is later than, and consequently inferior to, the possessory title of the plaintiff. Nor can he set up as a defence the title of the true owner—the jus tertii, as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Were it not for such a rule, force and fraud would be left to determine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it.[[441]]