could not challenge the basis of their right by raising a jus tertii. Here was a web of privity with at least two strands to it: if P2 entered into possession as a licensee of the daughter, he takes as her privy and so would then be estopped from challenging the basis of her heir’s good title (that is P1’s own right) by raising a jus tertii.54 And secondly, in law, there was a nexus of privity between the testator P1 and his daughter and her heir, which means that the daughter and the plaintiff stood on the same footing as P1 with respect to the land, even though the plaintiff had never in fact occupied the land: privity of blood supplied the necessary connection.55 The potential for this case to be analysed in terms of privity rather than property seems to have been well understood by the courts. Thus, most of the discussion concerned whether the defendant was a trespasser adverse to the daughter or as a licensee of the daughter and so in privity then with her and her heirs, and so estopped from challenging the possession in which he himself shared by raising the matter of jus tertii.56 Of course, there are some very famous statements in Asher by Justice Cockburn on the nature of a right to possess as an inheritable and devisable form of property. But it is worth pointing out that even Cockburn J. had already suggested an alternative ground for denying the defendant the right to challenge P1’s title as owner: that P2 while not in privity with the daughter (and so her heirs) and so estopped for that reason, yet could not be heard on the question of ownership because as a trespasser he must be seen as taking by force. Indeed, if we recall that the daughter was in possession with her mother when the defendant P2 joined them, this is not such an outlandish claim: there was no intervening gap in possession that would enable him to explain that he got possession independently of the daughter.

2.1 A public law problem?

In cases of force and privity, there are limits on the ability of a later possessor to raise challenges to a wrongdoer’s title that would not make sense if courts were just concerned with administering a system of property rights. But if we recognize that force and privity form the basis of rights to possess rather than temporal priority of property rights, the puzzle is solved.

54Mr Merewhether took this position, finding that the defendant could not dispute validity of the will, because he was the daughter’s invitee.

55Ancestors/heirs are in privity of blood and so death of one operates like a release, putting the heir in the ancestor’s position. Privity then between the daughter and the testator, privity too between daughter and her invitees. See Ballantine 1919 (on privity between ancestor/heirs invitor/invitees). Only heirs can continue adverse possessor’s title (only heirs, not devisees, are in privity) and need privity because otherwise there is no power of appointment. So there is no privity between the widow and the testator. But there is privity between the daughter and testator, explaining how she gets to continue his possession. There is privity between her and her heirs, and privity between her and the stepfather, explaining why he cannot challenge the title of her or her privies. A web of privity!

56Defendant entered by permission of the daughter so cannot dispute title by her or her privies. See also Doe v Birchmore 1839. There was a debate between Cockburn J. and others about whether the defendant’s possession was adverse—he claimed it was—which is just to say that he is trying to escape being treated as in possession as a privy. Implication is that had the defendant come in adversely he might have been able to show title and possession in someone else prior to the Testator.

The way that privity works outside of the law of property to shape our relations with respect to things seems to raise a public law problem: if there is some truth of the matter in the law of property about our status vis-à-vis others with respect to a thing, how can we justify the intervention of privity to bind us to serve in altogether different roles? Jeremy Bentham seems to have been concerned with an analogous question in the context of the common law’s approach to personal identity. The common law approach, he thought, gives a sloppy answer to the problem of identity—‘who are you with whom I have to deal?’ Instead of a law of names that attached a fixed label to each person, the common law allowed people to acquire identities based on usage.57 Thus, a single person could have multiple names in use in different contexts and times. Bentham thought this was deeply problematic for law enforcement: people could not properly be held to account to the state and others if they can have more than one name. But at least one aspect of the common law approach to identity can be seen as a solution to (different) public law problem, rather than a symptom of lazy government. The common law’s insistence that a person stand by whatever identity he has assumed, even if that means sticking to a ‘false’ name or position, is not the result of a failure to develop laws and mechanisms for fixing and ascertaining a person’s identity or true position in law.58 It reflects, rather, the law’s response to a separate and prior public concern, prior to any question of who a person really is or what status they really have in a system of rights: the use of force or fraud to dominate others (and so what passes for ‘relativity’ of rights or identity is just as important in a system that does have official registries of names and property rights, as most common law countries now do). We can see this prior concern with force or fraud in cases where courts refuse to allow someone to correct a misstatement about their name or status where that identity is the basis for their relationship with someone else.59 Where a person denies their true identity or status in dealing with others they may then be estopped from correcting their own falsehood or mistake.60 A person cannot go back on his own deed or statement, even if it is to assert the truth, where the objectively untrue

57Bentham 1843, 557 (the problem of identification: names are matters of public concern because the state has an interest in identifying individuals in a fixed and stable manner).

58Rastell 1721, 330: ‘Estoppel is when one is concluded and forbidden in laws to speak against his own act or deed, yea though it be to say the truth.’

59Rastell 1721, 330 gives the example of a man, J.S., who entered into a contract with another under an assumed identity (T.S.). J.S. was estopped from asserting his true identity because T.S. was the name he had given the obligee in that transaction.

60Take Horn v Cole (1868): the owner of goods denied ownership publicly in order to evade his own creditors. (Thanks to Ben McFarlane for raising this case with me in conversation.) The court held he was estopped from later correcting himself even though he had not specifically intended to deceive the defendant in that case. Estoppel is justified here because the only story he can tell about how it happened that he denied ownership involves the scheme to defraud his own creditors. He cannot himself acknowledge that he has dealt with his creditors in a way that denies or undermines their rights (i.e. their rights to attach property in his estate). This does not mean, of course that his property really was outside the reach of his creditors but just that he is estopped from denying or going back on his prior statement. See Gale v Lindo 1687 (Ch) (where fake gift is meant to make a bride seem richer than she is and so more marriageable but fake donor cannot enforce the promise to return the thing by showing that the arrangement was a sham and he in fact continued to own it). But see Freeman v Cooke 1848, holding that A is not estopped.

control only over things actually in our possession), on the one hand, and property rights (conferring authority over things even when they are out of our possession), on the other. Privity extends the circumstances in which a non-owner can control a thing just in virtue of his right to his person to situations where the thing is out of his possession so long as it is in the possession of his privy. For so long as the thing is in the possession of me or my privy, the terms of our particular relationship of privity (which may take the form of a bailment, licence, or lease) continues to govern us. But privity imposes constraints just on my privies and not on the world at large, which is why, once my privies too are out of possession, I have no further control of the thing. Where P1 and P2 are in privity but P2 loses possession to P3, P3 is not estopped, as P2 would be, from challenging P1’s right to possess the thing (unless P3 is bound as P2’s privy to stand and fall on the same foundation of right as P2). Privity thus falls far short of ownership, which enables us to maintain decision-making authority (or noumenal possession) even without phenomenal possession.

2.3 Let the chips fall where they may

‘First in time, stronger in right’ has some appeal as a heuristic for the relativity of title. But even as a heuristic, it is lacking and has the potential to mislead us. When there is simply no normative nexus between possessors, the law’s default position is quite the opposite of what the standard position on temporal priority suggests: it is to favour the position of the last to possess. Because of principles of estoppel, a wrongdoer has an enforceable right to possess in a contest with his privies and (a fortiori, against someone who forcibly dispossesses him).62 But that same wrongdoer has no right to possess if he is out of possession and P2 comes into possession independently. In these cases, the matter properly ends with a judicial shrug: in pari delicto, potior est conditio defendentis— effectively, ‘let the chips fall where they may’.63

A wrongdoer may have a right to possess but her ability to maintain the trappings of ownership depends on the cover of privity (it is otherwise in the case of finders, as I have discussed, who claim owner pro tem status).64 Thus, a wrongdoer is in a

62Anderson v Gouldberg 1892, 296: ‘One who has acquired the possession of property, whether by finding, bailment, or by mere tort, has a right to retain that possession as against a mere wrongdoer who is a stranger to the property. Any other rule would lead to an endless series of unlawful seizures and reprisals in every case where property had once passed out of the possession of the rightful owner.’

63In equal wrong better is the position of the defending party.

64Actions for conversion have more to do, it seems, with the usurpation of authority than the mere fact of the taking of the thing. England v Cowley 1873 (tenant left in possession of goods so there was no conversion). Rly v McNicholl 1918, 605: ‘It appears to me plain that dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion, provided that it is also established that there is also an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right. That intention is conclusively proved if the defendant has taken the goods as his own or used the goods as his own.’ A good example of the sort of assertion of rights by someone not in possession which will amount to conversion is the decision of McNair J in Douglas Valley Finance v S Hughes (Hirers) Ltd 1969. In Douglas, the defendant had purported to buy two lorries from a third party to whom the plaintiff had let the lorries on hire purchase. The defendant then caused the valuable ‘A’ haulage licences relating to the vehicles to be transferred to other vehicles and purported to sell them back to the third party. The learned judge held that although the defendant never had possession of the vehicles, this series of transactions constituted a ‘wrongful assumption of ownership by the defendants and a denial of the plaintiffs’ right’.