when any une, seised by any means whatsoever of the inheritance of corporeal hereditament, dies; whereby the same descends to his heir: in this case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the freehold is taken away; and he cannot recover possession against the heir by this summary method, but is driven to his action to gain a legal seisin of the estate. And this, first, because the heir comes to the estate by act of law, and not by his own act; the law therefore protects his title, and will not suffer his possession to be devested, till the claimant hath proved a better right. Secor dly, because the heir may not suddenly know the true state of his title; and therefore the law, which is ever indulgent to heirs, takes away the entry of such claimant as neglected to enter on the ancestor, who was well able to defend his title; and leaves the claimant only the remedy of an action against the heir (e). Thirdly, this was admirably adapted to the military spirit of the feodal tenures, and tended to make the feudatory bold in war; since his children could not, by any mere entry of another, be dispossessed of the lands whereof he died seised. And, lastly, it is agree able to the dictates of reason and the general principles of law. For, in every complete title (f) to lands, there are two things necessary the possession or seisin, and the right or property therein (g): or, as it is expressed in Fleta, juris et seisinae conjunctio (h). Now if the possession be severed from the property, if A has the jus proprietatis, and B by some unlawful means has gained possession of the lands, this is an in[*177] jury to A; for which the law gives a remedy, by putting *him in possession, but does it by different means according to the circumstances of the case. Thus, as B, who was himself the wrongdoer, and hath obtained the possession by either fraud or force, hath only a bare or naked possession, without any shadow of right; A therefore, who hath both the right of property and the right of possession, may put an end to his title at once, by the summary method of entry. But, if B the wrongdoer dies seised of the lands, then B's heir advances one step farther towards a good title: he hath not only a bare possession, but also an apparent jus possessionis, or right of possession. For the law presumes, that the possession which is transmitted from the ancestor to the heir, is a rightful possession, until the contrary be shewn and therefore the mere entry of A is not allowed to evict the heir of B; but A is driven to action at law to remove the possession of the heir, though his entry alone would have dispossessed the ancestors. : So that in general it appears, that no man can recover possession by mere entry on lands, which another hath by descent. Yet this rule hath (e) Co. Litt. 237 (f) See book II. ch. 13. (g) Mirror, c. 2, ◊ 27. ly possible to suggest a case in which the doc- of the fee and franktenement; and Littleton trine of descent cast can be now so applied, saith, unless he hath the fee and franktene as to prevent a claimant from maintaining ment at the time of his decease, such deejectment. Adams, 41. note e. We have be- scent shall not take away the entire." Co fore seen, that where the entry of the party Litt. 239. b, c. It was laid down in Carter or his ancestor was originally lawful, and the v. Tash, by Holt, C. J. that if a feme-covert continuance in possession only unlawful, the is disseisee, and after her husband dies she entry is not tolled. See Dowl. & R. 41. "If takes a second husband, and then the de a disseisor make a lease for term of his own scent happens, this descent shall take away life, and dieth, this descent shall not take away the entry of the feme, for she might have en the entry of the disseisee; for though the fee tered before the second marriage, and pre and franktenement descend to the heir of the vented the descent 1 Salk. 241 See al disseisor vet th disseisor died not seised 4 T. R. 300. some exceptions (i) wherein those reasons cease, upon which the general doctrine is grounded; especially if the claimant were under any legal disabilities, during the life of the ancestor, either of infancy, coverture, imprisonment, insanity, or being out of the realm: in all which cases there is no neglect or laches in the claimant, and therefore no descent shall bar, or take away his entry (k). And this title of taking away entries by descent, is still farther narrowed by the statute 32 Hen. VIII. c. 33. which enacts, that if any person disseises or turns another out of possession, no descent to the heir of the disseisor shall take away the entry of him that has a right to the land, unless the disseisor had peaceable possession five years next after the disseisin. But the statute extendeth not to any feoffee or donee of the disseisor, mediate or immediate (1): because such a one by the genuine feodal constitutions always came into the tenure solemnly *and with the lord's concurrence, by actual de- [*178] livery of seisin, that is, open and public investiture. On the other hand, it is enacted by the statute of limitations, 21. Jac. I. c. 16. that no entry shall be made by any man upon lands, unless within twenty years after his right shall accrue (10). And by statute 4 & 5 Ann. c. 16. no entry shall be of force to satisfy the said statute of limitations, or to avoid a fine levied of lands, unless an action be thereupon commenced within one year after, and prosecuted with effect. Upon an ouster, by the discontinuance of tenant in tail, we have said that no remedy by mere entry is allowed; but that, when tenant in tail alienes the lands entailed, this takes away the entry of the issue in tail, and drives him to his action at law to recover the possession (m). For, as in the former cases, the law will not suppose, without proof, that the ancestor of him in possession acquired the estate by wrong; and therefore, after five years' peaceable possession, and a descent cast, will not suffer the possession of the heir to be disturbed by mere entry without action; so here the law will not suppose the discontinuor to have aliened the estate without power so to do, and therefore leaves the heir in tail to his action at law, and permits not his entry to be lawful. Besides, the alienee, who came into possession by a lawful conveyance, which was at least good for the life of the alienor, hath not only a bare possession, but also an apparent right of possession; which is not allowed to be devested by the mere entry of the claimant, but continues in force till a better right be (i) See the particular cases mentioned by Littleton, b. 3, ch. 6, the principles of which are well explained in Gilbert's law of tenures. (10) But by the second section, the same exceptions as are enumerated above, of infanry overture, imprisonment, insanity, and absence beyond seas, are made,† in which case, the party entitled may enter within ten years after the disability ceases, notwithstanding the twenty years should have elapsed after his title first accrued, and to his heir the statute gives ten years after the death of such party, aying under the disability. It gives the heir ten years, and no more, whatever disability he may labour under during all that time. 6 East, in New-York, absence from the state or ing beyond seas, does not constitute an exoption to the statute nor does imprisonment, (k) Ca Litt. 246 85. And in 4 T. R. 300. it was agreed by the court, that in every statute of limitations, if a disability be once removed, the time must continue to run, notwithstanding any subsequent disability, either voluntary or involuntary. And in 5 B. & A. Abbott, C. J. said, the several statutes of limitation being all in pari materia, ought to receive a uniform construction, notwithstanding any slight variations of phrase, the object and intention being the same. except on a criminal charge, or on a convie tion for a criminal offence, for a period ies than for life. (2 R. S. 295, ◊ 16.) shewn, and recognized by a legal determination. And something also perhaps, in framing this rule of law, may he allowed to the inclination of the courts of justice, to go as far as they could in making estates-tail alienable, by declaring such alienations to be voidable only, and not absolutely void (11). In case of deforcement also, where the deforciant had originally a lawful possession of the land, but now detains it wrongfully, he still [*179] continues to have the presumptive prima facie evidence of right; that is, possession lawfully gained. Which possession shall not be overturned by the mere entry of another; but only by the demandant's shewing a better right in a course of law. This remedy by entry must be pursued, according to statute 5 Ric. Il st. 1. c. 8. in a peaceable and easy manner; and not with force or strong hand. For, if one turns or keeps another out of possession forcibly, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate restitution; which puts the ancient possessor in statu quo: the criminal injury, or public wrong, by breach of the king's peace, is punished by fine to the king. For by the statute 8 Hen. VI. c. 9. upon complaint made to any justice of the peace, of a forcible entry, with strong hand, on lands or tenements; or a forcible detainer after a peaceable entry; he shall try the truth of the complaint by jury, and, upon force found, shall restore the possession to the party so put out and in such case, or if any alienation be made to defraud the possessor of his right (which is likewise declared to be absolutely void) the offender shall forfeit, for the force found, treble damages to the party grieved, and make fine and ransom to the king (12). But this does not extend to such as endeavour to keep possession manu for ti, after three years' peaceable enjoyment of either themselves, their ancestors, or those under whom they claim; by a subsequent clause of the same statute, enforced by statute 31 Eliz. c. 11. II. Thus far of remedies, when tenant or occupier of the land hath gained only a mere possession, and no apparent shadow of right. Next follow another class, which are in use where the title of the tenant or occupier is advanced one step nearer to perfection; so that he hath in him not only a bare possession, which may be destroyed by a bare entry, but also an apparent right of possession, which cannot be removed but by orderly course of law; in the process of which it must be shewn, that though [*180] he hath at present possession and therefore hath *the presumptive right, yet there is a right of possession, superior to his, residing in him who brings the action. These remedies are either by a writ of entry (13), or an assise; which are actions merely possessory; serving only to regain that possession, whereof the demandant (that is, he who sues for the land) or his ancestors have been unjustly deprived by the tenant or possessor of the freehold, or those under whom he claims. They decide nothing with respect to the right of property; only restoring the demandant to that state or situation, in which he was (or by law ought to have been) before the dispossession (11) As there are in New-York no estates ail, there is no such discontinuance as mentioned in the text. (1 R. S. 722, § 3.) (12) See 2 R. S. 338, § 4: 507, §, 1, &c. 713) In New-York, by 2 R. S. 343, § 24, all writs of right, dower, entry, and assize, and all fines and common recoveries, are abolished, 18 well as all other common law writs relating to real estate, and not specially retained by the chapter on suits relating to real property. The action of ejectment is substituted for writs of entry and of right. (Id. 303, § 1, 2.) The rest of this chapter is therefore generally inapplicable to New-York: it however illus trates the law of title to real estate committed. But this without any prejudice to the right of ownership. for, if the dispossessor has any legal claim, he may afterwards exert it. notwithstanding a recovery against him in these possessory actions. Only the law will not suffer him to be his own judge, and either take or maintain possession of the lands, until he hath recovered them by legal means (n): rather presuming the right to have accompanied the ancient seisin, than to reside in one who had no such evidence in his favour. 1. The first of these possessory remedies is by writ of entry; which is that which disproves the title of the tenant or possessor, by shewing the unlawful means by which he entered or continues possession (o). The writ is directed to the sheriff, requiring him to "command the tenant of the land that he render (in Latin, praecipe quod reddat) to the demandant the land in question, which he claims to be his right and inheritance; and into which, as he saith, the said tenant had not entry but by (or after) a disseisin, intrusion, or the like, made to the said demandant, within the time limited by law for such actions; or that upon refusal he do appear in court on such a day, to shew wherefore he hath not done it (p)." This is the original process, the praecipe upon which all the rest of the suits is grounded wherein it appears, that the tenant is required, either : to deliver *seisin of the lands, or to shew cause why he will not. [*181] This cause may be either a denial of the fact, of having entered by or under such means as are suggested, or a justification of his entry by reason of title in himself or in those under whom he makes claim: whereupon the possession of the land is awarded to him who produces the clearest right to possess it. In our ancient books we find frequent mention of the degrees within which writs of entry are brought If they be brought against the party himself that did the wrong, then they only charge the tenant himself with the injury; "non habuit ingressum nisi per intrusionem quam ipse fecit." But if the intruder, disseisor, or the like, has made any alienation of the land to a third person, or it has descended to his heir, that circumstance must be alleged in the writ, for the action must always be brought against the tenant of the land; and the defect of his possessory title, whether arising from his own wrong or that of those under whom he claims, must be set forth. One such alicnation or descent makes the first (2) degree, which is called the per, because then the form of a writ of entry is this; that the tenant had not entry, but by the original wrongdoer, who alienated the land, or from whom it descended, to him: "non habuit ingressum, nist per Gulielmum, qui se in illud intrusit, et illud tenenti dimisit (r)." A second alienation or descent makes another degree, called the per and cui; because the form of a writ of entry, in that case, is, that the tenant had not entry, but by or under a prior alienee, to whom the intruder demised it; non habuit ingressum nisi per Ricardum, cui Gulielmus illud dimisit, qui se in illud intrusit (s)." These degrees thus state the original wrong, and the title of the tenant who claims under such wrong. If more than two degrees (that is, two alienations or descents) were past, there lay no writ of entry at the common law. For as it was provided, for the *quietness of men's inheritances, that no one, even though he had [*182] .he rue right of possession, should enter upon him who had the (n) Mir. c. 4, ◊ 24. (0) Finch L. 261. (See book II. Append. No. V. § 1. Finch, L. 262. Booth indeed (of real actions, 79) makes the first degree to consist in the origi nal wrong done, the second in the per, and the third in the per and cui. But the difference is im material. (r) Booth, 181. (s) Finch, L. 263. F. N B. 203, 204. apparen right by descent or otherwise, but he was driven to his writ of entry to gain possession; so, after more than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this possessory action; but was driven to his writ of right, a long and final remedy, to punish his neglect in not sooner putting in his claim, while the degree subsisted, and for the ending of suits, and quieting of all controversies (t). But by the statute of Marlbridge, 52 Hen. III. c. 30. it was provided, that when the number of alienations or descents exceeded the usual degrees, a new writ should be allowed without any mention of degrees at all. And accordingly a new writ has been framed, called a writ of entry in the post, which only alleges the injury of the wrongdoer, without deducing all the intermediate title from him to the tenant stating it in this manner; that the tenant had not entry unless after, or subsequent to, the ouster or injury done by the original dispossessor; non habuit ingressum nisi post intrusionem quam Gulielmus in illud fecit ;" and rightly concluding, that if the original title was wrongful, all claims derived from thence must participate of the same wrong. Upon the latter of these writs it is (the writ of entry sur disseisin in the post) that the form of our common recoveries of landed estates (u) is usually grounded; which, we may remember, were observed in the preceding volume (v) to be fictitious actions2/brought against the tenant of the freehold (usually called the tenant to the praecipe, or writ of entry), in which by collusion the demandant recovers the land. This remedial instrument, or writ of entry, is applicable to all the cases of ouster before-mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. Such is that of deforcement of dower.28 by not assigning any dower to the widow within the [*183] time limited by law; tor which she has her remedy by writ of dower, unde nihil habet (w). But if she be deforced of part only of her dower, she cannot then say that nihil habet; and therefore she may have recourse to another action, by writ of right of dower; which is a more general remedy, extending either to part or the whole; and is (with regard to her claim) of the same nature as the grand writ of right, whereof we shall presently speak, is with regard to claims in fee-simple (x). On the other hand, if the heir (being within age) or his guardian, assign her more than she ought to have, they may be remedied by a writ of admeasurement of dower (y). But in general the writ of entry is the universal remedy to recover possession, when wrongfully withheld from the owner. It were therefore endless to recount all the several divisions of writs of entry, which the different circumstances of the respective demandants may require, and which are furnished by the laws of England (2): being (t) 2 Inst. 153. (u) See Book II. Append. No. V () Book II. ch. 21. (w) F. N. B. 147. (z) Ibid. 16. (v) F. N. B. 148. Finch, L. 314 Stat. Westm. 2 13 Ed. I. c. 7 (2) See Bracton, l. 4, tr. 7, c. 6, 4. Britton. c. '14, fol. 264. The most usual were, 1. The writs of entry sur disseisin, and of intrusion: (F. N. B. 191. 203.) which are brought to remedy either of those species of ouster. 2. The writs of dum fuit infra aetatem, and dum fuit non compos mentis: (ĺbid. 192, 202.) which lie for a person of full age, or one who hath recovered his understanding; after having (when under age or insane) aliened his ands; or for the heirs of such alienor. 3. The writs of cui in vita, and cui ante divortium : (Ibid. 193. (87) See Hov. 197 at the end of the Vol. B. III. 6. |