Seisin Notes

‘Seisin’ and ‘the right’

‘Seisin’: Definition contested. No definitive answer. Must see what best fits surviving evidence. More or less resembles Roman possession – a factual relation with a corporeal thing.

+ Williams (1910): ‘To be seised of a thing is to be possessed thereof, the word seisin meaning possession’.

‘Right’: More or less a claim to ownership. In the developed common law ‘the right’ (the claim to the right – writ of entry) resembled Roman dominium, the ultimate legal title above which there is no other (though in contrast to dominium ‘the right’ was always relative). It was a relationship between a person and a thing.

Debate: But did ‘seisin’ and ‘the right’ always mean these things?

+ Maitland: Yes. Thought (late 19^th c) they did not change definition. Felt that from beginning (once land could be subinfeudated) Ts had a right in rem, and Ls had a proprietary right to services and a future right of enjoyment of the land if the tenancy terminates. So Maitland said there was a concept very like ownership from early on as Ts could exercise their right against their lord and third parties. Says seisin is possession – ‘cardinal’ in our law.

In Maitland’s view, if his seisin was challenged by a 3^rd party, D would be asserting a horizontal, abstract entitlement. L is only relevant as the dispute may end up in his court. This is about abstract ownership.

+ Milsom: No. Seisin, he argues, began not as a relationship between a person and a thing (it was not a possessory relationship between a person and their land), but as a relationship between two persons about a thing – a relationship between the lord and T about the land. Essentially it was just a contractual relationship which did not relate to the outside world. If the relationship broke down T could do nothing in relation to the land. The was a different understanding of T’s right to property. Argues that it is only when the common law intervened and created the real actions that T had an enforceable right in rem.

One had to say ‘I am seised of Blackacre by X’. The lord seises the T of the land, so seisin is a contractual relationship between lord and T – lord accepts the tenant. He argues seisin cannot exist in the abstract; it requires a lord who can confirm it. The lord accepts T as tenant of the land and T homages.

A claim ‘to the right’ would not be a claim to ownership; it would be a claim against the lord that the lord is obliged to seise the tenant of Blackacre. It is to claim the benefit of obligation binding the lord.

Milsom’s view is vertical. D is claiming the benefit of an obligation by the lord – the lord must recognise me, D, not T, as your tenant. T will make an opposing claim upwards (vertically) against L. Both are claiming the lord should accept them as the tenant. ‘Tenure is the crux’; the lord is intimately involved and not merely somebody with jurisdiction over land disputes. Double booked theatre ticket is Milsom’s analogy; same tickets, there has been a mistake, same...

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