a

a

a

for the right vests not in the lord as heir or devisee ; nor is it intrusion, for it vests not in him who hath the remainder or reversion ; nor is it disseisin, for the lord was never seised ; nor does it at all bear the nature of any species of discontinuance; but, being neither of these four, it is therefore a deforcement (?). If a man marries a woman, and during the coverture is seised of lands, and alienes, and dies ; is disseised, and dies ; or dies in possession ; and the alienee, disseisor, or heir, enters on the tenements and doth not assign the widow her dower; this is also a deforcement to the widow, by withholding lands to which she hath a right (m). In like manner, if a man lease lands to another for term of years, or for the life of a third person, and the term expires by surrender, efflux of time, or death of the cestuy que vie; and the lessee or any stranger, who was at the expiration of the term in possession, holds over, and refuses to deliver the possession to him in remainder or reversion, this is likewise a deforcement (n). Deforcements may also arise upon the breach of a condition in law : as if a woman gives lands to a man by deed, to the intent that he marry her, and he will not when thereunto required, but continues to hold the lands : this is such a fraud on the man's part, that the law will not allow it to devest the woman's right of possession ; though, his entry being lawful, it does devest the actual possession, and thereby becomes a deforcement (o). Deforcements may also be grounded on the disability of the party deforced : as if an infant do make an alienation of his lands, and the alienee enters and keeps possession : now, as the alienation is voidable, this possession as against the infant (or, in case of his decease, as against his heir) is after

avoidance wrongful, and therefore a deforcement (p). The same [*174] happens, *when one of nonsane memory alienes his lands or tene

ments, and the alienee enters and holds possession; this may also be a deforcement (9). Another species of deforcement is, where two persons have the same title to land, and one of them enters and keeps possession against the other: as where the ancestor dies seised of an estate in feesimple, which descends to two sisters as coparceners, and one of them enters before the other, and will not suffer her sister to enter and enjoy her moie. ty; this is also a deforcement (r). Deforcement may also be grounded on the non-performance of a covenant real: as if a man, seised of lands, covenants to convey them to another, and neglects or refuses so to do, but continues possession against him ; this possession, being wrongful, is a deforcement (s): whence, in levying a fine of lands, the persons against whom the fictitious action25is brought upon a supposed breach of covenant, is called the deforciant. And, lastly, by way of analogy, keeping a man by any means out of a freehold office is construed to be a deforcement; though, being an incorporeal hereditament, the deforciant has no corporeal possession. So that whatever injury (withholding the possession of a freehold) is not included under one of the four former heads, is comprised under this of deforcement.

The several species and degrees of injury by ouster being thus ascertained and defined, the next consideration is the remedy ; which is, universally, the restitution or delivery of possession to the right owner : and, in some cases, damages also for the unjust amotion. The methods, whereby these remedies, or either of them, may be obtained, are various. (1) F. N. B. 143.

a

1. The first is that extrajudicial and summary one, which we slightly touched in the first chapter of the present book (t), of entry by the legal owner, when another person, who hath no right, hath previously taken possession of lands or tenements. In this case the party entitled may make a formal, but peaceable, entry thereon, declaring that thereby he takes possession : which notorious act of ownership is equivalent to a feodal investiture by the lord (u): or he may enter on any *part [*175] of it in the same county,. declaring it to be in the name of the whole (v): but if it lies in different counties he must make different entries ; for the notoriety of such entry or claim to the pares or freeholders of Westmoreland, is not any notoriety to the pares or freeholders of Sussex. Also if there be two disseisors, the party disseised must make his entry on both ; or if one disseisor has conveyed the lands with livery to two distinct feoffees, entry must be made on both (w): for as their seisin is distinct, so also must be the act which devests that seisin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim (7), as near to the estate as he can, with the like forms and solemnities : which claim is in force for only a year and a day (x). And this claim, if it be repeated once in the space of every year and a day (which is called continual claim), has the same effect with, and in all respects amounts to, a legal entry (y). Such an entry gives a man seisin (2), or puts into immediate possession him that hath right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himself by either descent or purchase.

This remedy by entry takes place in three only of the five species of ouster, viz. abatement, intrusion, and disseisin (a); for, as in these the original entry of the wrongdoer was unlawful, they may therefore be remedied by the mere entry of him who hath right. But, upon a discontinuance or deforcement, the owner of the estate cannot enter, but is driven to his action : for herein the original entry being lawful, and thereby an apparent right of possession being gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant. Yet a man may enter (6) on his tenant by sufferance : for such tenant hath no freehold, but only a bare possession ; which may be defeated, like a tenancy at will, by the mere entry of the owner. But if the owner thinks it more expedient to suppose or admit (c) such tenant to have *gained a tortious freehold, he is then remediable by writ of en- [*176] try, ad lerminum qui praeteriit.26

On the other hand, in case of abatement, intrusion, or disseisin, where entries are generally lawful, this right of entry may be tolled, that is, taken away by descent (8). Descents, which take away entries (a) (9), are

a

(t) See page 5.
(u) See book II. ch. 14, page 209.
(v) Litt. 6 417.
(20) Co. Litt. 252.
(2) Litt. 6422.
(y) Ibid. $ 419. 423.

(z) Co. Litt. 15.
(a) Ibid. 237, 238.
(6) See book II. page 150.
(c) Co. Litt. 57.
(d) Litt. 9 385-413.

(7) See further as to continual claim and (8) In New York a right of entry is not entry, Adams on Ejectment, 92, 3. The sta- tolled by a descent cast. (2 R. S. 295.0 15.) tute 4 Ann. c. 16. s. 16. renders it necessary (9) See the doctrine as to_descents cast to commence an effectual action of ejectment clearly explained in Adams on Ejectment, 4) within a year.

to 45 ; and see H. Chitty on Descents, 25. See, as to New-York, 2 R. S. 293, 97, 43. 56; Taylor v. Horde, 1 Burr. 60; 12 East, though it seems doubtful whether a continual 141; and Watkins on Descents; Com. Dig. claim without entry would be of any avail. Descents; Bac. Ab. Descents. It is scarce. Vol. II. (26) See Hov. n. (26) at the end of the Vol. B. III.

the entry

when any one, seised by any means whatsoever of the inheritance of a
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. Secondly,
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
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 (8): 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

(g) Mirror, c. 2, 0 27. (f) See book II. ch. 13.

(h) I. 3, c. 15, 05. 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 bis 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 par 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 dea 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 seme, for she might have en the entry of the disseisee ; for though the fee tered before the second marriage, and preand franktenement descend to the heir of the vented the descent. 1 Salk. 241. See also disseisor, yet the 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 (l): 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 shalį 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 Little- (k) Co. Litt. 246. ton, b. 3, ch. 6, the principles of which are well ex- (1) Ibid. 256. plained in Gribert's law of lenures.

(m) Ibid. 325. :

(10) But by the second section, the same 85. And in 4 T.R. 300. it was agreed by the exceptions as are enumerated above, of infan- court, that in every statute of limitations, if a cy, coverture, imprisonment, insanity, and ab. disability be once removed, the time must sence beyond seas, are made, t in which case, continue to run, notwithstanding any subsethe party entitled may enter within ten years quent disability, either voluntary or involunafter the disability ceases, notwithstanding tary. And in 5 B. & A. Abbott, C. J. said, the twenty years should have elapsed after his the several statutes of limitation being all in title first acerued, and to his heir the statute pari materia, ought to receive a uniform congives ten years after the death of such party, struction, notwithstanding any slight variadying under the disability. It gives the heir tions of phrase, the object and intention being ten years, and no more, whatever disability he the same. may labour under during all that time. 6 East,

+ In New York, absence from the state or except on a criminal charge, or on a convicbeing beyond seas, does not constitute an ex. tion for a criminal offence, for a period less ception to the statute: nor does imprisonment, than for life. (2 R. S. 295, 9 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 law.

ful 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. II. 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

a 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 forti, 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 unjystly 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

.(?!) As there are in New-York no estates to real estate, and not specially retained by tail, there is no such discontinuance as men- the chapter on suits relating to real property. tioned in the text. (1 R. S. 722, $ 3.) The action of ejectment is substituted for

(12) Seo 2 R. S. 338, § 4 : 507, 9, 1, &c. writs of entry and of right. (Id. 303, § 1, 2.)

(13) In New-York, by 2 R. S. 343, & 24, all the rest of this chapter is therefore generally writs of right, dower, entry, and assize, and inapplicable to New-York: it however illus all fines and common recoveries, are abolished, trates the law of title to real estate. as well as all other common law writs relating