Page images
PDF
EPUB
[ocr errors]

from the perfon fo feifed to himself; to which the tenant may answer by denying the demandant's right, and averring that he has more right to hold the lands than the demandant has to demand them: and, this right of the tenant being fhewn, it then puts the demandant upon the proof of his title: in which if he fails, or if the tenant hath fhewn a better, the demandant and his heirs are perpetually barred of their claim; but if he can make it appear that his right is fuperior to the tenant's, he fhall recover the land against the tenant and his heirs for ever. But even this writ of right, however fuperior to any other, cannot be fued out at any distance of time. For by the antient law no feifin could be alleged by the demandant, but from the time of Henry the first f; by the ftatute of Merton, 20 Hen. III. c. 8. from the time of Henry the fecond; by the ftatute of Westm. 1.* 3 Edw. I. c. 39. from the time of Richard the first; and now, by ftatute 32 Hen. VIII. c. 2. feifin in a writ of right fhall be within fixty years. So that the poffeffion of lands in fee-fimple uninterruptedly, for three-score years, is at prefent a fufficient title against all the world; and cannot be impeached by any dormant claim whatsoever (1).

I HAVE now gone through the feveral fpecies of injury by oufter and difpoffeflion of the freehold, with the remedies applicable to each. In confidering which I have been unavoidably led to touch upon much obfolete and abftrufe learning, as it lies intermixed with, and alone can explain the f Glanv. 1. 2. c. 3. Co. Litt. 114.

(1) This is far from being univerfally true; for an uninterrupted poffeffion for fixty years will not create a title, where the claimant or demandant had no right to enter within that time; as where an estate in tail, for life, or for years, continues above fixty years, ftill the reverfioner may enter and recover the eftate; the poffeffion must be adverse, and lord Coke says, "it has been re

folved, that although a man has been out of poffeffion of land for "fixty years, yet if his entry is not tolled he may enter and bring any "action of his own poffeffion; and if his entry be congeable, and he enter, he may have an action of his own poffeffion." 4 Co. 11. b. reafon

reafon of, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is impoffible to form any clear idea of the meaning and connection of those disjointed parts, which still form a confiderable branch of the modern law; fuch as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any confiderable part of that, which I have felected in this chapter from among the venerable monuments of our ancestors, fo abfolutely antiquated as to be out of force, though the whole is [197] certainly out of use: there being but a very few inftances for more than a century paft of profecuting any real action for land by writ of entry, affife, formedon, writ of right, or otherwife. The forms are indeed preferved in the practice of common recoveries: but they are forms and nothing else; for which the very clerks that pafs them are feldom capable to affign the reason. But the title of lands is now usually tried in actions of ejectment or trespass, of which in the following chapters.

CHAPTER THE ELEVENTH.

OF DISPOSSESSION, OR OUSTER,

OF CHATTELS REAL.

H

AVING in the preceding chapter confidered with fome attention the feveral fpecies of injury by dispos feflion or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the fubject by the common law, either to recover the poffeffion only, or else to recover at once the poffeffion, and also to establish the right of property; the method which I there marked out leads me next to confider injuries by ouster of chattels real; that is, by amoving the poffeffion of the tenant from an estate by ftatute-merchant, ftatute-ftaple, recognizance in the nature of it, or elegit; or from an estate for years.

I. OUSTER, or amotion of poffeffion, from eftates held by ftatute, recognizance, or elegit, is only liable to happen by a fpecies of diffeifin, or turning out of the legal proprietor, before his eftate is determined by raifing the fum for which it is given him in pledge. And for fuch ouster, though the estate be merely a chattel intereft, the owner fhall have the fame remedy as for an injury to a freehold; viz. by affife of novel diffeifin. But this depends upon the feveral ftatutes, which a F. N. B. 178.

create

create these respective interests, and which exprefsly provide and allow this remedy in cafe of difpoffeffion. Upon which account it is that fir Edward Coke obferves, that these tenants are faid to hold their eftates ut liberum tenementum, until their debts be paid: becaufe by the ftatutes they shall have an affife, as tenants of the freehold fhall have; and in that refpect they have the fimilitude of a freehold ".

II. As for oufter, or amotion of possession, from an estate for years; this happens only by a like kind of diffeifin, ejection, or turning out, of the tenant from the occupation of the land during the continuance of his term. For this injury the law has provided him with two remedies, according to the circumstances and fituation of the wrongdoer: the writ of ejectione firmae; which lies against any one, the leffor, reverfioner, remainder-man, or any ftranger, who is himself the wrongdoer and has committed the injury complained of: and the writ of quare ejecit infra terminum; which lies not against the wrongdoer or ejector himself, but his feoffee or other perfon claiming under him. Thefe are mixed actions, fomewhat between real and perfonal; for therein are two things recovered, as well reftitution of the term of years, as damages for the oufter or wrong.

1. A WRIT then of ejectione firmae, or action of trespass in ejectment, lieth where lands or tenements are left for a term of years and afterwards the leffor, reverfioner, remainder-man, or any ftranger, doth eject or ouft the leffee of his term. In this cafe he shall have his writ of ejection to call the defendant to answer for entering on the lands fo demifed to the plaintiff for a term that is not yet expired, and ejecting him. And by this writ the plaintiff fhall reeover back his term, or the remainder of it, with damages.

SINCE the difufe of real actions, this mixed proceeding is [200] become the common method of trying the title to lands or

b Stat. Weftm. 2. 13 Edw. I. c. 18. Stat. de mercatoribus, 27 Edw. III. c. 9. Stat. 23 Hen. VIII. ¿. 6. § y.

¿

I Inft. 43.

d See book II. ch. 10.

e F. N. B. 220.

f See appendix. No II. § 1.

tenements.

tenements. It may not therefore be improper to delineate, with fome degree of minuteness, it's hiftory, the manner of it's procefs, and the principles whereon it is grounded.

WE have before feens, that the writ of covenant, for breach of the contract contained in the leafe for years, was antiently the only specific remedy for recovering against the leffor a term from which he had ejected his leffee, together with damages for the oufter. But if the leffee was ejected by a stranger, claiming under a title fuperior to that of the leffor, or by a grantee of the reverfion, (who might at any time by a common recovery have deftroyed the term ') though the leffee might still maintain an action of covenant against the leffor, for non-performance of his contract or leafe, yet he could not by any means recover the term itself. If the outer was committed by a mere ftranger, without any title to the land, the leffor might indeed by a real action recover poffeffion of the freehold, but the leffee had no other remedy against the ejector but in damages, by a writ of ejectione firmae, pass committed in ejecting him from his farm *. But afterwards, when the courts of equity began to oblige the ejector to make a specific reftitution of the land to the party immediately injured, the courts of law also adopted the fame method of doing complete juftice; and, in the profecution of a writ of ejectment, introduced a fpecies of remedy not warranted by the original writ nor prayed by the declaration, (which are calculated for damages merely, and are filent as to any reftitution,) viz. a judgment to recover the term, and a writ of poffeffion thereupon'. This method feems to have been fet

g See pag. 157.

h F. N. B. 145.

i See book II. ch. 9.

k P. 6. Ric. II. Ejectione firmae n'eft que un action de trefpafs en fon nature, et le plaintiff ne recovera fun terme que eft a venir, nient plus que en trefpafs home reCovera damages pur trefpafs nient fait, mes a fefer; mes il convient a fuer par action de covenant al comen law a recoverer fon terme; quod tota curia conceffit. Et per

for the tref

Belknap, la comen ley eft, lou bome eft oufte de fon terme par eftranger, il avera ejectione firmae verfus cefty que luy oufte; et fil foit oufle parfon leffor, briefe de covenant; et fi par lefjee ou grantee de reverfion briefe de covenant verfus fon leffor, et countera efpecial count, &c. (Fitz. abr. t. eject. firm. 2.) See Bract. 1.4. tr. 1. c. 36.

1 See append. No II. § 4. prope fin.

tled

« PreviousContinue »