Definition
The purchase of a claim or title to land from a person who is not in actual possession of the property at the time of the transaction. The doctrine historically prohibited such purchases on the ground that they encouraged litigation and champerty: a person out of possession might sell a doubtful or disputed claim to a buyer willing to use money and legal power to wrest the land from the actual occupant. The buyer, in effect, was purchasing a lawsuit rather than a piece of property.
The prohibition was rooted in early common law and carried forward in statutes derived from English champerty and maintenance laws. The concern was not merely that the title might be defective, but that trafficking in contested claims would produce coercive and socially destabilizing litigation, particularly where wealthy buyers could overwhelm poorer possessors.
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Common Confusion
BUYING OF TITLES is closely related to, but not identical with, CHAMPERTY and MAINTENANCE. Champerty involves a third party financing litigation in exchange for a share of the proceeds. Buying of titles can be understood as a species of champerty where the contested interest is in land and the purchase itself is the offending act, but the concepts are distinct enough that courts and statutes have treated them separately. A researcher conflating the two may miss relevant authority. See also CHAMPERTY.
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Why It Matters in Research
This term is primarily a historical one. Modern real estate law does not generally void land purchases solely because the seller was out of possession at the time of sale; the anti-champerty statutes that once targeted this practice have been repealed, limited, or narrowed in most American jurisdictions. Researchers encountering the doctrine in older sources — particularly pre-twentieth-century equity cases or early American treatises — should understand that it operated as an independent ground for voiding a conveyance, separate from questions of fraud, defective title, or adverse possession.
The practical trap: a researcher working with older case law or pleadings that reference the "purchase of a title" from a dispossessed grantor may not immediately recognize that the challenge being raised is champerty-adjacent rather than a title defect in the modern conveyancing sense. The issue was not whether the seller had good title in the abstract, but whether the circumstances of the sale — the seller being out of possession while the land was in dispute — rendered the conveyance void or voidable as a matter of public policy.
Kent's Commentaries, cited by Burrill, remains the most accessible primary reference for the American reception of this doctrine and is worth consulting directly for the antebellum case law landscape. Researchers tracing the evolution of title examination practice should note that modern title search methodology — chain of title, abstracts, title insurance — developed partly in response to the instability that buying-of-titles disputes created in land markets.
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Historical Dictionary Support
Burrill's entry is spare: "The purchase of titles to land from parties not in possession," with a reference to 4 Kent's Commentaries 448–450 and a cross-reference to Champerty. The brevity is telling. By Burrill's time, the doctrine was understood as a settled, if declining, principle that required no elaborate restatement — its contours had been worked out in equity and its connection to champerty was taken as read.
What Burrill does not address is the significant variation in how American courts and legislatures received the English rule. Some states adopted strict versions voiding all such purchases outright; others required actual knowledge of the dispute or possession contest before the transaction would be struck down. The doctrine's force also diminished as land markets matured and title recording systems developed, reducing the stakes of disputed possession claims. Burrill's cross-reference to Champerty is the correct starting point for following the doctrine through the broader common law tradition, but researchers should not assume a uniform rule across jurisdictions or time periods.
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Jurisdictional Note
The doctrine was never uniform across American states. Some jurisdictions codified anti-champerty rules that expressly covered buying of titles; others relied on general equity principles. By the late nineteenth and early twentieth centuries, many states had substantially narrowed or abolished the prohibition. Researchers should verify whether a given jurisdiction treated out-of-possession purchases as voidable, void ab initio, or merely presumptively suspect before drawing conclusions from case law in other states.
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Encyclopedia Cross-Reference
Title Examination — Chain of Title, Abstracts, and the Title Search Process (The Law Mind Real Estate Transactions & Construction Encyclopedia)
Real Estate Transactions — Title Search and Chain of Title (The Law Mind Property Law Encyclopedia)
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