Not right, but seisin, makes the stock.
Seizin in the common law signifies possession, and to seize is to take possession of a thing ; and primier seisin is the first possession. So there is a seisin in deed and a seisin in law. A seisin in deed is where an actual possession is taken ; seisin in law is where lands descend and entry has not been made upon them. Seisin in law is a right to lands though the owner is by wrong disseised of them. This is as the law relating to lands was formerly understood in all strictness ; so that under it no person could be an ancestor, so as that an inheritance of lands or tenements could be derived from him, unless he had actual seisin thereof, by himself or some one on his behalf holding under him, or unless there was some other equivalent to such actual seisin, according to the nature of the property, whether corporeal or incorporeal, land or rent ; and which seisin made him the root from which all future inheritance by right of blood must be derived, distinguishing this actual seisin or entry from a mere right of entry : and this is what is meant by seisina facit stipitem.
This seisin, or notoriety of ownership by occupation of the land, was formerly required owing to the manner in which land was at that time passed from one person to another ; that is, by delivery of possession and actual corporal entry ; and until which actual corporal entry the heir or purchaser was not considered to have such a complete ownership as to transmit a title thereof to his heir, or to one purchasing from him. So no person, as the law then stood, could succeed to an inheritance by descent unless his ancestor had died seised thereof, nor was the title of the claimant by descent perfect until he had himself obtained actual corporal seisin, so as in like manner to become in his turn the root or stock from which all future inheritance by right of blood could be derived. Since the statute 3 & 4 Will. 4, c. 106, however, such actual seisin is not required, except as to descents which took place previously to the 1st January, 1834 ; and the heir and ancestor are, under that statute, such as otherwise appears by law, and the descent is so traced.
By the statute referred to, the person who last acquired the land otherwise than by descent, or than by escheat, partition, or inclosure ; by the effect of which the land should have become part of, or descendible in the same manner as, other land acquired by descent ; is to be considered the purchaser : the person entitled by descent, he who has title to inherit by reason of consanguinity, as well where the heir shall be ancestor or collateral relative as where he shall be child or other issue : a descendant, he who can trace his descent through such ancestor ; and the person having the actual right to land ; whether or not he was in possession or in receipt of the rents and profits ; is to be considered the person last entitled and the purchaser, and as such may transmit the ownership to another without the formality of entry by himself, his heir, or devisee, or any one claiming through him. And so the fiction of law which held an estate to be still in the ancestor which had long since descended to his heir, and an estate still to continue in a previous owner which had long since passed from him by sale ; merely because the heir died without entry, and notwithstanding proof of heirship by descent; is abolished, and the more reasonable law substituted which allows the owner and heir to be such as they can be shown to be by purchase or descent.
Fleta, lib. 6, c. 14; 2 Bla. Com.; Noy Max. 9 ed. p. 72 ; 1 Inat. 31; 3 Co. 42 ; Co. Litt. 14, 15, 152 ; Jenks's Case, Cm Car. 151 ; Doe dem. Andrew v. Hutton, 3 B. & P. 643 ; Tweedale v. Coventry, 1 Bro. Ch. C. 240 ; Doe dem. Parker v. Thomas, 4 Scott N. B. 468 ; Doe dem. Chillott v. White, 1 East, 33 ; 3 & 4 Will. 4, c. 106 ; Doe dem. Wallis v. Jackson, Cowp. 229 ; Smith v. Coffin, 2 H. Bl. 444 ; Kellow v. Rowden, 3 Mod. 253 ; Smith ». Parker, 2 Bl. 1230.