As a writ of entry is a real action which disproves the title of the tenant by showing the unlawful commencement of his possession, so an assize is a real action which proves the title of the demandant merely by showing his or his ancestor's possession :(e) and these two remedies are in all other respects so totally alike that a judgment or recovery in one is a bar against the other; so that when a man's possession is once established by either of these possessory actions it can never be disturbed by the same antagonist in any other of them. The word assize is derived by Sir Edward Coke(ƒ) from the Latin assideo, to sit together; and it signifies, originally, the jury who try the cause and sit together for that purpose. By a figure it is now made to signify the court or jurisdiction which summons this jury together by a commission of assize, or ad assisas capiendas; and hence the judicial assemblies held by the king's commis sion in every county, as well to take these writs of assize, as to try causes at nisi prius, are termed in common speech the assizes. By another somewhat similar figure the name of assize is also applied to this action, for recovering possession of lands; for the reason, saith Littleton, (g) why such writs at the beginning were called assize, was, for that in these writs the sheriff is ordered to summon a jury or assize; which is not expressed in any other original writ.(h) This remedy, by writ of assize, is only applicable to two species of injury by ouster, viz., abatement, and a recent or novel disseisin. If the abatement happened upon the death of the demandant's father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy is by an assize of mort d'an cestor, or death of one's ancestor. This writ directs the sheriff to [*186 summon a jury or assize, who shall view the land in question, and recognise whether such ancestor was seised thereof on the day of his death, and whether the demandant be the next heir:(i) soon after which the judges come down by the king's commission to take the recognition of assize: when, if these points are found in the affirmative, the law immediately transfers the possession from the tenant to the demandant. If the abatement happened on the death of one's grandfather or grandmother, then an assise of mort d'ancestor no longer lies, but a writ of ayle or de avo: if on the death of the great-grandfather or great-grandmother, then a writ of besayle or de proavo: but if it mounts one degree higher, to the tresayle, or grandfather's grandfather, or if the abatement happened upon the death of any collateral relation other than those before mentioned, the writ is called a writ of cosinage or de consanguineo.(k) And the same points shall be inquired of in all these actions ancestrel as in an assize of mort d'ancestor; they being of the very same nature :(1) though they differ in this point of form, that these ancestrel writs (like all other writs of præcipe) expressly assert a title in the demandant, (viz., the seisin of the ancestor at his death, and his own right of inheritance,) the assize asserts nothing directly, but only prays an inquiry whether those points be so.(m) There is also another ancestrel writ, denominated a nuper obiit, to establish an equal division of the land in question, where, on the death of an ancestor who has several heirs, one enters and holds the others out of possession.(n) But a man is not allowed to have any of these actions ancestrel for an abatement consequent on the death of any collateral relation beyond the fourth degree;(0) though in the lineal ascent he may proceed ad infinitum.(p) For there must be some boundary, else the privilege would be universal; which is absurd and therefore the law pays no regard to the possession of a collateral ancestor who was no nearer than the fifth degree. *It was always held to be a law(q) that where lands were devisable in a man's last will by the custom of the place, there an assize of [*187 mort d'ancestor did not lie. For where lands were so devisable, the right of possession could never be determined by a process which inquired only of these two points, the seisin of the ancestor and the heirship of the demandant And hence it may be reasonable to conclude, that when the statute of wills, 32 Hen. VIII. c. 1, made all socage-lands devisable, an assize of mort d'ancestor no longer could be brought of lands held in socage; (r) and that now, since the statute 12 Car. II. c. 24, (which converts all tenures, a few only excepted, into free and common socage,) no assize of mort d'ancestor can be brought of any lands in the kingdom, but that, in case of abatements, recourse must be pro perly had to the writs of entry." An assize of novel (or recent) disseisin is an action of the same nature with the assize of mort d'ancestor before mentioned, in that herein the demandant's possession must be shown. But it differs considerably in other points; particularly in that it recites a complaint by the demandant of the disseisin com mitted, in terms of direct averment; whereupon the sheriff is commanded to reseize the land and all the chattels thereon, and keep the same in his custody till the arrival of the justices of assize, (which in fact hath been usually omitted;)(s) and in the mean time to summon a jury to view the premises, and make recognition of the assize before the justices.(t) At which time the tenant may plead either the general issues nul tort, nul disseisin, or any special plea. And if, upon the general issue, the recognitors find an actual seisin in the demandant, and his subsequent disseisin by the present tenant, he shall have judgment to recover his seisin, and damages for the injury sustained: being the only case in which damages were recoverable in any possessory actions at the common law ;(u) the tenant being in all other cases allowed to retain the inter*188] mediate profits of the *land, to enable him to perform the feodal service. But costs and damages were annexed to many other possessory actions by the statutes of Marlberge, 52 Hen. III. c. 16, and Glocester, 6 Edw. I. c. 1. And to prevent frequent and vexatious disseisins, it is enacted by the statute of Merton, 20 Hen. III. c. 3, that if a person disseised recover seisin of the land again by assize of novel disseisin, and be again disseised of the same tenements by the same disseisor, he shall have a writ of re-disseisin; and if he recover therein, the re-disseisor shall be imprisoned; and by the statute of Marlberge, 52 Hen. III. c. 8, shall also pay a fine to the king: to which the statute Westm. 2, 13 Edw. I. c. 26 hath superadded double damages to the party aggrieved. In like manner, by the same statute of Merton, when any lands or tenements are recovered by assize of mort d'ancestor, or other injury, or any judgment of the court, if the party be afterwards disseised by the same person against whom judgment was obtained, he shall have a writ of post-disseisin against him; which subjects the post-disseisor to the same penalties as a re-disseisor. The reason of all which, as given by Sir Edward Coke,(w) is because such proceeding is a contempt of the king's courts, and in despite of the law; or, as Bracton more fully expresses it,(x) "talis qui ita convictus fuerit, dupliciter delinquit contra regem: quia facit disseisinam et roberiam contra pacem suam; et etiam ausu temerario irrita facit ea, quæ in curia domini regis rite acta sunt: et propter duplex delictum merito sustinere debet pœnam duplicatam." In all these possessory actions there is a time of limitation settled, beyond which no man shall avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary. For, if he be negligent for a long and unreasonable time, the law refuses afterwards to lend him any assistance, to recover the possession merely; both to punish his neglect, (nam leges vigilantibus, non dormientibus, subveniunt,) and also because it is pre (*) See 1 Leon. 267. Booth, 211. Bract. 4, 1, 19, 27. () F. N. B. 177. (*) Bract. 187. Stat. Marlbr. c. 16. "In Launder vs. Brooks and others, Cro. Car. 562, the court of King's Bench "resolved that an assize of mort d'ancestor lies of lands devisable; but if the defendant plead that the land is by custom devisable, and was devised to him, it is a good bar to the action." This seems more sensible than to deny generally a form of action to the heir because in a particular case there may be a good bar to his right.-COLERIDGE. sumed that the supposed wrong-doer has in such a length of time procured legal title, otherwise *he would sooner have been sued. This time of [*189 limitation by the statute of Merton, 20 Hen. III. c. 8, and Westm. 1, 3 Edw. I. c. 39, was successively dated from particular eras, viz., from the return of king John from Ireland, and from the coronation, &c. of king Henry the Third. But this date of limitation continued so long unaltered that it became indeed no limitation at all; it being above three hundred years from Henry the Third's coronation to the year 1540, when the present statute of limitations(y) was made. This, instead of limiting actions from the date of a particular event, as before, which in process of years grew absurd, took another and more direct course, which might endure forever: by limiting a certain period, as fifty years for lands, and the like period(2) for customary and prescriptive rents, suits, and services, (for there is no time of limitation upon rents created by deed, or reserved on a particular estate,)(a) and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seisin, or dispossession of his ancestors, beyond such certain period. But this does not extend to services which by common possibility may not happen to become due more than once in the lord's or tenant's life; as fealty, and the like.(b) And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseisin complained of; for if it be an older date, it can with no propriety be called a fresh, recent, or novel disseisin; which name Sir Edward Coke informs us was originally given to this proceeding, because the disseisin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone. (c) And we may observe, (d) that the limitation, prescribed by Henry the Second at the first institution of the assize of novel disseisin, was from his own return into England, after the peace made between him and the young king his son; which was but the year before. 15 *What has been here observed may throw some light on the doctrine [*190 of remitter, which we spoke of in the second chapter of this book; and which we may remember was where one who hath right to lands, but is out of possession, hath afterwards the freehold cast upon him by some subsequent defective title, and enters by virtue of that title. In this case the law remits him to his antient and more certain right, and by an equitable fiction supposes him to have gained possession in consequence and by virtue thereof: and this, because he cannot possibly obtain judgment at law to be restored to his prior right, since he is himself the tenant of the land, and therefore hath nobody against whom to bring his action. This determination of the law might seem superfluous to a hasty observer; who perhaps would imagine, that since the tenant hath now both the right and also the possession, it little signifies by what means such possession shall be said to be gained. But the wisdom of our antient law determined nothing in vain. As the tenant's possession was gained by a defective title, it was liable to be overturned by showing that defect in a writ of entry; and then he must have been driven to his writ of right, to recover his just inheritance: which would have been doubly hard, because during the time he was himself tenant he could not establish his prior title by any pos sessory actions. The law therefore remits him to his prior title, or puts him in the same condition as if he had recovered the land by writ of entry. Without the remitter, he would have had jus, et seisinam separate; a good right, but a bad possession: now, by the remitter, he hath the most perfect of all tit.es, juris et seisinæ conjunctionem. III. By these several possessory remedies the right of possession may be re () 32 Hen. VIII. c. 2. (*) So Berthelet's original edition of the statute, A.D. 1540, and Cay's, Pickering's, and Ruffhead's editions, examined with the record. Rastell's and other intermediate editions, which Sir Edward Coke (2 Inst. 95) and other subsequent writers have followed, make it only forty years for rents, &c. (a) 8 Rep. 65. (0) Co. Litt. 115. 1 Inst. 153. Booth, 210. (d) See page 184. But all these distinctions are now chiefly of interest as matters of antiquity; for all writs of assize are abolished. 3 & 4 W. IV. c. 27, s. 36.-STEWART. stored to him that is unjustly deprived thereof. But the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right of property, which may still subsist in another man. For, as *one man may have the possession, and another the right of possession, *191] which is recovered by these possessory actions; so one man may have the right of possession, and so not be liable to eviction by any possessory action, and another may have the right of property, which cannot be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as are in the nature of a writ of right. This happens principally in four cases: 1. Upon discontinuance by the alienation of tenant in tail: whereby he who had the right of possession hath trans ferred it to the alienee; and therefore his issue, or those in remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant hath so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action: for such judgment, if obtained by him who hath not the true ownership, is held to be a species of deforcement; which, however, binds the right of possession, and suffers it not to be ever again disputed, unless the right of property be also proved. 4. In case the demandant, who claims the right, is barred from these possessory actions by length of time and the statute of limitations before mentioned: for an undisturbed possession for fifty years ought not to be devested by any thing but a very clear proof of the absolute right of property. In these four cases the law applies the remedial instrument of either the writ of right itself, or such other writs as are said to be of the same nature 1. And first, upon an alienation by tenant in tail, whereby the estate-tail is discontinued, and the remainder or reversion is by failure of the particular estate displaced, and turned into a mere right, the remedy is by action of formedon, (secundum formam doni,) which is in the nature of a writ of right,(e) and is the highest action that tenant in tail can have.(ƒ) For he cannot have an absolute writ of right, which is confined only to such as claim in fee-simple: and for that reason this writ of formedon was granted him by the statute de donis or *Westm. 2, 13 Edw. I. c. 1, which is therefore emphatically called his *192] writ of right.(g) This writ is distinguished into three species: a formedon in the descender, in the remainder, and in the reverter. A writ of formedon in the descender lieth, where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is disseised of them, and dies; in this case the heir in tail shall have this writ of formedon in the descender, to recover these lands so given in tail against him who is then the actual tenant of the freehold. (h) In which action the demandant is bound to state the manner and form of the gift in tail, and to prove himself heir secundum formam doni. A formedon in the remainder lieth, where a man giveth lands to another for life or in tail, with remainder to a third person in tail or in fee, and he who hath the particular estate dieth without issue inheritable, and a stranger intrudes upon him in remainder and keeps him out of possession.(i) In this case the remainder-man shall have his writ of formedon in the remainder, wherein the whole form of the gift is stated, and the happening of the event upon which the remainder depended. This writ is not given in express words by the statute de donis; but is founded upon the equity of the statute, and upon this maxim in law, that if any one hath a right to the land, he ought also to have an action to recover it. A formedon in the reverter lieth, where there is a gift in tail, and afterwards by the death of the donee or his heirs without issue of his body the reversion falls in upon the donor, his heirs, or assigns: in such case the reversioner shall have his writ to recover the lands, wherein he shall suggest the gift, his own title to the reversion minutely derived from the donor, and the failure of issue upon which his reversion takes place.(k) This lay at common law, before the statute de donis, if the donee aliened before he had performed the condition of the gift, by having Finch, L. 267. (Co. Litt. 316. F. N. B. 211, 212. Ibid. 217. Ibid. 219. 8 Rep. 88. [*193 issue, and afterwards died without any.(1) The time of limitation in a formedon, by statute 21 Jac. I. c. 16, is twenty years;16 within *which space of time after his title accrues, the demandant must bring his action, or else he is forever barred." 2. In the second case; if the owners of a particular estate, as for life, in dower, by the curtesy, or in fee-tail, are barred of the right of possession by a recovery had against them, through their default or non-appearance in a possessory action, they were absolutely without any remedy at the common law: as a writ of right does not lie for any but such as claim to be tenants of the fee-simple. Therefore the statute Westm. 2, 13 Edw. I. c. 4 gives a new writ for such persons, after their lands have been so recovered against them by default, called a quod ei deforceat; which, though not strictly a writ of right, so far partakes of the nature of one, as that it will restore the right to him who has been thus unwarily deforced by his own default. (m) But in case the recovery were not had by his own default, but upon defence in the inferior possessory action, this still remains final with regard to these particular estates, as at the common law and henco it is, that a common recovery (on a writ of entry in the post) had, not by default of the tenant himself, but (after his defence made and voucher of a third person to warranty) by default of such vouchee, is now the usual bar to cut off an estatetail.(n) 3, 4. Thirdly, in case the right of possession be barred by a recovery upon the merits in a possessory action, or lastly by the statute of limitations, a claimant in fee-simple may have a mere writ of right; which is in its nature the highest writ in the law,(0) and lieth only of an estate in fee-simple, and not for him who hath a less estate. This writ lies concurrently with all other real actions, in which an estate of fee-simple may be recovered: and it also lies after them, being as it were an appeal to the mere right, when judgment hath been had as to the possession in an inferior possessory *action.(p) But though a writ [*194 of right may be brought, where the demandant is entitled to the possession, yet it rarely is advisable to be brought in such cases; as a more expeditious and easy remedy is had, without meddling with the property, by proving the demandant's own, or his ancestor's, possession, and their illegal ouster, in one of the possessory actions. But in case the right of possession be lost by length. of time, or by judgment against the true owner in one of these inferior suits, there is no other choice: this is then the only remedy that can be had; and it is of so forcible a nature, that it overcomes all obstacles, and clears all objections that may have arisen to cloud and obscure the title. And, after issue once joined in a writ of right, the judgment is absolutely final; so that a recovery had in this action may be pleaded in bar of any other claim or demand.(g) The pure, proper, or mere writ of right lies only, we have said, to recover lands in fee-simple, unjustly withheld from the true proprietor. But there are 16 The twenty years within which a formedon in the descender ought to be commenced under the 21 Jac. I. c. 16, begin to run when the title descends to the first heir in tail, unless he lie under a disability; and the heirs of such person who suffers the twenty years to elapse without commencing the formedon are utterly excluded, and the right of entry is forever lost. 3 Brod. & Bing. 217. 6 East, 83; and see note 10, ante, 178.CHITTY. "It might seem, and has been contended, that a fresh title accrues to the issue in tail of a person who has been barred by the lapse of time, and therefore that such issue would have another twenty years in which to bring his formedon. But if this construction prevailed at all, it is obvious that it would equally prevail through any number of descents, and would virtually repeal the statute in the most pernicious manner. In the case of Tolson vs. Kaye, 3 Brod. & Ping. 217, the court of Common Pleas, therefore, determined that the first descent of the title, within twenty years after which the statute requires the formedon to be sued out, is the descent upon that claimant who, being free from any disability, suffers twenty years to elapse without asserting his right; and, consequently, that the bar which operates upon him equally concludes al claiming as his heirs.-COLEridge. |