Asher v Whitlock

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Citation: Asher v Whitlock (1865) LR 1 QB 1

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 148-50 [2.68]


Background facts

  • In 1842 and 1850, Thomas Williamson enclosed (built a fence around) some land of a manor belonging to a lord. He then built a cottage on the land acquired in 1850.
  • He died in 1860, giving the land to his wife Lucy for the period of her widowhood, and after her death or remarriage, to their daughter, Mary Ann.
  • The wife married the Defendant [Whitlock] in 1861 and they all lived on the land. The wife did not give up possession to her daughter, as per her late husband's will.
  • Suddenly, both of the wife and the daughter died. The Defendant remained in possession.
  • The Plaintiff was the daughter's heir, and thus argued that the land belonged to her (since title passed to the daughter upon the wife's remarriage).
  • Brought an action for ejectment.


  • The Defendant argued that Williamson was technically a squatter (he just enclosed the land without permission) and therefore had no title to pass on. Therefore, the title never passed and the Plaintiff cannot bring an action in ejectment because she did not have title.

Legal issues


Cockburn CJ:

  1. The doctrine of disseisin clearly states that the disseisor’s (a person who took possession of another's land) title was good against all but the disseisee (the person who was dispossessed).
    • In other words, if A (the disseisor) wrongfully takes B’s (disseisee’s) title to some land, and C attempts to forcibly take the land from A on the grounds that B has a better title, C will not succeed. The only person who would succeed in taking the land from A is B, as B has a better title and has been disseised by A.
    • Note: this is exactly like the discussion in personal property regarding how a thief or a mere possessor can sue anyone (bar the true owner) in conversion.
    • This means that Williamson, or any squatter who takes possession of land, would have been able to sue anyone trying to dispossess him except for the lord of the manor.
    • The lord of the manor acquiesced with Williamson's trespassing, and thus the Defendant cannot set up a jus tertii defence.
  2. There is no reason why the rights acquired from mere possession cannot be passed on via a will.
    • This means that the daughter could have brought an action against the Defendant, and thus, so can the Plaintiff.

Mellor J:

  • Agreed with the above.
  • Added that possession is ‘prima facie evidence’ of seisin – the source of the Plaintiffs’ proprietary right was seisin, not possession.

General note:

  • The Defendant's argument is contradictory - he is trying to say that there isn't a title or that the title cannot pass in a will...but if this is true then that means he is a trespasser because title never passed to him.


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