for damages (which are usually remitted), but also to recover his court, and jurisdiction over the lands, and to annul the former proceedings (n). Thus much for the non-performance of contracts express or implied'; which includes every possible injury to what is by far the most considerable species of personal property; viz. that which consists in action merely, and not in possession. Which finishes our inquiries into such wrongs as may be offered to personal property, with their several remedies by suit or action. CHAPTER X. OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD (1). I COME now to consider such injuries as affect that species of property which the laws of England have denominated real; as being of a more : (n) Rast. Entr. 100. b. 3 Lev. 415. Lutw. 711. 749. (1) "The different degrees of title which a person dispossessing another of his lands acquires in them, in the eye of the law (independently of any anterior right), according to the length of time, and other circumstances which intervene from the time such dispossession is made, form different degrees of presumption, in favour of the title of the dispossessor; and in proportion as that presumption increases, his title is strengthened; the modes by which the possession may be recovered vary; and more, or rather different proof is required from the person dispossessed, to establish his title to recover. Thus, if A. is disseised by B.; while the possession continues in B. it is a mere naked possession, unsupported by any right and A. may restore his own possession, and put a total end to the possession of B. by an entry on the lands, without any previous action. But if B. dies, the possession descends on the heir by act of law. In this case the heir comes to the land by a law. ful title, and acquires in the eye of the law an apparent right of possession, which is so far good against the person disseised, that he has lost his right to recover the possession by entry, and can only recover it by an action at law. The actions used in these cases are called possessory actions, and the original writs by which the proceedings upon them are instituted, are called writs of entry. But if A. permits the possession to be withheld from him beyond a certain period of time without claiming it, or suffers judgment in a possessory action to be given against him, by default or upon the merits; in all these cases B.'s title in the eye of the law is strengthened, and A. can no longer recover by a possessory action, and his only remedy then is by an action on the right. These last actions are called droiturel actions, in contradistinction to possessory actions. They are the ultimate resort of the person dis seised, so that if he fails to bring his writ of right within the time limited for the bringing of such writ, he is remediless, and the title of the dispossessor is complete. The original writs by which droiturel actions are instituted, are called writs of right. The dilatoriness and niceties in these processes introduced the writ of assize. The invention of this proceeding is attributed to Glanville, chief justice to Henry II. (See Mr. Reeves's History of the English law, part I. ch. 3.) It was found so convenient a remedy, that persons to avail themselves of it, frequently supposed or admitted themselves to be disseised by acts which did not, in strictness, amount to a disseisin. This disseisin, being such only by the will of the party, is called a disseisin by election, in opposition to an actual disseisin; it is only a disseisin as between the disseisor and disseisee, the disseisee still continuing the freeholder, as to all persons but the disseisor. The old books, particularly the reports of assize, when they mention disseisins, generally relate to those cases where the owner admits himself disseised. (See 1 Burr. 111. and see Bract. 1. b. 4. cap. 3.) As the processes upon writs of entry were superseded by the assize, so the assize and all other real actions have been since superseded by the modern process of ejectment. This was introduced as a mode of trying titles to lands in the reign of Henry VII. From the ease and expedition with which the proceedings in it are conducted, it is now become the general remedy in these cases. Booth, who wrote about the end of the last century, mentions real actions as then worn out of use. It is rather singular that this should be the fact, as many cases must frequently have occurred in which a writ of ejectment was not a sufficient remedy. Within these few years past, some attempts have been made to revive real actions, and the most substantial and permanent nature, than those transitory rights of which personal chattels are the object. Real injuries then, or injuries affecting real rights, are principally six : 1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Disturbance. Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession for thereby the wrongdoer gets into the actual occupation of the land or hereditament, and obliges him that hath a right to seek his legal remedy, in order to gain possession, and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods: 1. Abatement; 2. Intrusion; 3. Disseisin; 4. Discontinuance; 5. Deforcement. All of which in their order, and afterwards their respective remedies,23 will be considered in the present chapter. 1. And first, an abatement is where a person dies seised of an [*168] inheritance, and before the heir or devisee enters, a stranger *who has no right makes entry, and gets possession of the freehold: this entry of him is called an abatement, and he himself is denominated an abator (a). It is to be observed that this expression, of abating, which is derived from the French, and signifies to quash, beat down, or destroy, is used by our law in three senses. The first, which seems to be the primitive sense, is that of abating or beating down a nuisance, of which we spoke in the beginning of this book (b); and in a like sense it is used in statute Westm. 1. 3 Edw I. c. 17. where mention is made of abating a castle or fortress; in which case it clearly signifies to pull it down, and level it with the ground. The second signification of abatement is that of abating a writ or action, of which we shall say more hereafter: here it is taken figuratively, and signifies the overthrow or defeating of such writ, by some fatal exception to it. The last species of abatement is that we have now before us; which is also a figurative expression to denote that the rightful possession or freehold of the heir or devisee is overthrown by the rude intervention of a stranger (2). This abatement of a freehold is somewhat similar to an immediate occupancy in a state of nature, which is effected by taking possession of the land the same instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice, considering man merely as an individual, is diametrically opposite to the law of society, and particularly the law of England: which, for the preservation of public peace, hath prohibited as far as possible all acquisitions by mere occupancy: and hath directed that lands, on the death of the present possessor, should immediately vest either in some person, expressly named and appointed by (a) Finch. L. 195. remarkable of these are the case of Tissen v. Clarke, reported in 3 Wils. 419. 541. and that of Carlos and Shuttleworth v. Lord Dormer. The writ of summons in this last case is dited the 1st day of December, 1775. The summons to the four knights to proceed to the election of the grand assize, is dated the 22d day of May, 1780. To this summons the sheriff made his return, and there the matter rested. The last instance in which a real action was used, is the case of Sidney v. Perry. All shese were actions on the right. The part of (b) Page 5. sir William Blackstone's commentary, which treats upon real actions, is not the least valuable part of that most excellent work." See Co. Lit. 239. a. note 1. In M. T. 1825, a writ of right stood for trial in the court of common pleas, but the four knights summoned for the purpose not appearing, the case was adjourned to the next term. (2) As to abatement in general, see Com. Dig. Abatement, A. Vin. Ab. Disseisin, A. 4. Cru. Dig. 1 vol. 4. 2 id. 593. (23) See Hov. n. (23) at the end of the Vol. B. III. the deceased, as his devisee; or, on default of such appointment, in such of his next relations as the law hath selected and pointed out as his natural representative or heir. Every entry therefore of a mere stranger by way of intervention between the ancestor and heir or person next entitled, which keeps the heir or devisee out of possession, is one of the highest injuries to the right of real property. 2. The second species of injury by ouster, or amotion of posses- [*169] sion from the freehold, is by intrusion (3): which is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seised of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion (c). This entry and interposition of the stranger differ from an abatement in this; that an abatement is always to the prejudice of the heir, or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. For example; if A dies seised of lands in feesimple, and before the entry of B his heir, C enters thereon, this is an abatement; but if A be tenant for life, with remainder to B in fee-simple, and after the death of A, C enters, this is an intrusion. Also if A be tenant for life on lease from B, or his ancestors, or be tenant by the curtesy, or in dower, the reversion being vested in B; and after the death of A, C enters and keeps B out of possession, this is likewise an intrusion. So that an intrusion is always immediately consequent upon the determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee-simple. And in either case the injury is equally great to him whose possession is defeated by this unlawful occupancy. 3. The third species of injury by ouster, or privation of the freehold, is by disseisin (4). Disseisin is a wrongful putting out of him that is seised of the freehold (d). The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack upon him who is in actual possession, and turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in deed. Disseisin may be effected either in corporeal inheritances, "or incorporeal. [170] Disseisin of things corporeal, as of houses, lands, &c. must be by entry and actual dispossession of the freehold (e); as if a man enters either by force or fraud into the house of another, and turns, or a least keeps, him or his servants out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession: for the subject itself is neither capable of actual bodily possession, or dispossession; but it depends on their respective natures, and various kinds; being in general nothing more than a disturbance of the owner in the means of coming at, or enjoying them. With regard to freehold rent in particular, our ancient law-books (f) mentioned five methods of working a disseisin thereof: 1. By enclosure; where the tenant so encloseth the house or land, that the lord cannot come to distrain thereon, or demand it: 2. By forestaller, or lying in wait; when the tenant besetteth the way with force and arms, or by menaces of bodily hurt affrights the (c) Co. Litt. 277. F. N. B. 203, 204. (d) Co. Litt. 277. (e) Co. Litt. 181. (f) Finch. L. 165. 166. Litt. ◊ 237, 4c. (3) See 1 Cru. Dig. 161-316. Co. Litt. 35. dem. Atkins v. Horde, 1 Burr. 60. 5 Cru. Dig. a. 58. b. 357. b. 4 Co. 24. a. 2 Saund. 32. 321. See also 6 Brown Parl. Ca. 633. 2 (4) See in general, Vin. Ab. Disseisin; Saund. index, Disseisin; Adams on EjectCru. Dig. index, Diaseisin. And the judgment, 41. c. H. Chitty on Descents, index. ment delivered by lord Mansfield, in Taylor ex- Disseisin and Ouster. lessor from coming: 3. By rescous; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the distress at such time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All, or any of these circumstances amount to a disseisin of rent; that is, they wrongfully put the owner out of the only possession, of which the subject-matter is capable, namely, the receipt of it. But all these disseisins, of hereditaments, incorporeal, are only so at the election and choice of the party injured; if, for the sake of more easily trying the right, he is pleased to suppose himself disseised (g). Otherwise, as there can be no actual dispossession, he cannot be compulsively disseised of any incorporeal hereditament. And so too, even in corporeal hereditaments, a man may frequently suppose himself to be disseised, when he is not so in fact, for the sake of entitling himself to the more easy and commodious remedy of an assize of novel disseisin (which will be explained in the sequel of this chapter), [171] instead of being driven to the more tedious process of a writ of entry (h). The true injury of compulsive disseisin seems to be that of dispossessing the tenant, and substituting oneself to be the tenant of the lord in his stead; in order to which in the times of pure feodal tenure the consent or connivance of the lord, who upon every descent or alienation personally gave, and who therefore alone could change, the seisin or investiture, seems to have been considered as necessary. But when in process of time the feodal form of alienations wore off, and the lord was no longer the instrument of giving actual seisin, it is probable that the lord's acceptance of rent or service, from him who had dispossessed another, might constitute a complete disseisin. Afterwards, no regard was had to the lord's concurrence, but the dispossessor himself was considered as the sole disseisor and this wrong was then allowed to be remedied by entry only, without any form of law, as against the disseisor himself; but required a legal process against his heir or alienee. And when the remedy by assise was introduced under Henry II. to redress such disseisins as had been committed within a few years next preceding, the facility of that remedy induced others, who were wrongfully kept out of the freehold, to feign or allow themselves to be disseised, merely for the sake of the remedy. These three species of injury, abatement, intrusion, and disseisin, are such wherein the entry of the tenant ab initio, as well as the continuance of his possession afterwards, is unlawful. But the two remaining species are where the entry of the tenant was at first lawful, but the wrong consists in the detaining of possession afterwards. 4. Such is, fourthly, the injury of discontinuance (5); which happens when (g) Litt. 588, 58. (5) See in general, Adams on Ejectment, 35 to 41; Com. Dig. Discontinuance; Bac. Ab. Discontinuance; Vin. Ab. Discontinuance; Cru. Dig. index, Discontinuance; Co. Litt. 325; 2 Saund. index, tit. Discontinuance. The term discontinuance is used to distinguish those cases where the party, whose freehold is ousted, can restore it by action only, from those in which he may restore it by entry. Now things which lie in grant cannot either be devested or restored by entry The owner therefore of any thing which (h) Hengh. parv. c. 7. 4 Burr. 110. lies in grant, has in no stage, and under no circumstances, any other remedy but by action. The books often mention both disseisins and discontinuances of incorporeal hereditaments, but these disseisins and discontinuances are only at the election of the party, for the purpose of availing himself of the remedy by action. Co. Litt. 330. b. n. But a disseisin or discontinuance of corporeal heredi. taments necessarily operates as a disseisin or discontinuance of all the incorporeal rights or incidents which the disseisee or discon he who hath an estate-tail, maketh a larger estate of the land than by law he is entitled to do (i): in which case the estate is good, so far as his power extends who made it, but no farther. As if tenant in tail makes a feoffment in fee-simple, or for the life of the feoffee, or in tail; all *which are beyond his power to make, for that by the common [*172] law extends no farther than to make a lease for his own life; in such case the entry of the feoffee is lawful during the life of the feoffor; but if he retains the possession after the death of the feoffor, it is an injury, which is termed a discontinuance: the ancient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discontinued. For, in this case, on the death of the alienors, neither the heir in tail, nor they in remainder or reversion expectant on the determination of the estate-tail, can enter on and possess the lands so alienated. Also, by the common law, the alienation of a husband who was seised in the right of his wife, worked a discontinuance of the wife's estate : till the statute 32 Hen. VIII. c. 28. provided, that no act by the husband alone shall work a discontinuance of, or prejudice, the inheritance or freehold of the wife; but that, after his death, she or her heirs may enter on the lands in question (6). Formerly, also, if an alienation was made by a sole corporation, as a bishop or dean, without consent of the chapter, this was a discontinuance (j). But this is now quite antiquated by the disabling statutes of 1 Eliz. c. 19. and 13 Eliz. c. 10. which declare all such alienations absolutely void ab initio, and therefore at present no discontinuance can be thereby occasioned. 5. The fifth and last species of injuries by ouster or privation of the freehold, where the entry of the present tenant or possessor was originally lawful, but his detainer is now become unlawful, is that by deforcement. This, in its most extensive sense, is nomen generalissimum; a much larger and more comprehensive expression than any of the former: it then signifying the holding of any lands or tenements to which another person hath a right (k). So that this includes as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possession. But, as contradistinguished from the former, it is only such a detainer of the "freehold, from him that hath the right of property, but [173] never had any possession under that right, as falls within none of the injuries which we have before explained. As in case where a lord has a seignory, and lands escheat to him propter defectum sanguinis, but the seisin of the lands is withheld from him; here the injury is not abatement, (i) Finch. L. 190. (j) F. N. B. 194. tinuee has himself in, upon, or out of the land (k) Co. Litt. 277. tinuance. See 2 D. & R. 373; 1 B. & C. 238. (6) In New-York no future estate can be defeated by any alienation or other act of the owner of the precedent estate, nor by the destruction of such precedent estate by disseisin, forfeiture, surrender, merger, or otherwise. (R. S. 725, ◊ 32.) And no greater estate can pass by a conveyance than the grantor had at the delivery of the deed, (id. 739, 143) nor will a conveyance attempting to convey more, cause a forfeiture. (Id. § 145.) See also id. 749, § 7. (24) See Hov. n. (24) at the end of the Vol. B. III. |