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statute 32 Henry VIII. c. 2. seisin in a writ of right shall be within sixty years. So that the possession of lands in fee-simple uninterruptedly, for threescore years, is at present a sufficient title against all the world ; and cannot be impeached by any dormant claim whatsoever (17).

I have now gone through the several species of injury by ouster and dispossession of the freehold, with the remedies applicable to each. In considering which I have been unavoidably led to touch upon such obsolete and abstruse learning, as it lies intermixed with, and alone can explain the reason of, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is impossible to form any clear idea of the meaning and connexion of those disjointed parts which still form a considerable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any considerable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, so *absolutely antiquated as to be out of (*197] force, though the whole is certainly out of use : there being but a very few instances for more than a century past of prosecuting any real action for land by writ of entry, assise, formedon, writ of right, or otherwise. The forms are indeed preserved in the practice of common recoveries; but they are forms and nothing else ; for which the very clerks that pass them are seldom capable to assign the reason. But the title of lands is now usually tried in actions of ejectment or trespass; of which in the following chapters.



Having in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real,39 which are given to the subject by the common law, either to recover the possession only, or else to recover at once the possession, and also to establish the right of property ; the method which I there marked out leads me next to consider injuries by ouster of chattels real ; that is, by amoving the possession of the tenant from an estate by statute-merchant, statutestaple, recognizance in the nature of it, or elegit ; or from an estate for years.

I. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit (1), is only liable to happen by a species of disseisin, or

(17) This is far from being universally true; land for sixty years, yet if his entry is not for an uninterrupted possession for sixty years tolled he may enter and bring any action of will not create a title where the claimant or his own possession; and if his entry be condemandant had no right to enter within that geable, and he enter, he may have an action time ; as where an estate in tail, for life, or of his own possession.” 4 Co. 11. b. See for years, continues above sixty years, still notes ante, 178. 139. the reversioner may enter and recover the es- (1) There are no such estates in New York. tale; the possession must be adverse, and lord As to the law of New-York on ejectment, see Coke says,

it has been resolved, that al. note 17, p. 207. though a man has been out of possession of

(39) Soe Hov. n. (39) at the end of the Vol. B. III

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turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold ; viz. by assise of novel dis

seisin (a).40 But this depends upon the several statutes, which • [*199] *create these respective interests (b), and which expressly provide

and allow this remedy in case of dispossession. Upon which account it is that sir Edward Coke observes (c), that these tenants are said to hold their estates ut liberum tenementum, until their debts are paid : because by the statutes they shall have an assise, as tenants of the freehold shall have ; and in that respect they have the similitude of a f:eehold (d).

II. As for ouster, or amotion of possession, from an estate for years ; this happens only by a like kind of disseisin, 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 remediesa, ccording to the circumstances and situation of the wrongdoer: the writ of ejectione firmae ; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, who is himself the wrongdoer and has committed the injury complained of: and the writ of quare ejecit infra terminum ;41which lies not against the wrongdoer or ejector himself

, but his feoffee or other person claiming under him. These are mixed actions, somewhat between real and personal; for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong.

1. A writ then of ejectione firmae, or action of trespass in ejectment (2), rieth where lands or tenements are let for a term of years ; and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term (e). In this case he shall have his writ of ejection to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him (f). And by this writ the plaintiff shall recover back his term, or the remainder of it,

with damages. [*200] *Since the disuse of real actions, this mixed proceeding is be

come the common4?method of trying the title to lands or tenements. It may not therefore be improper to delineate, with some degree of minute(a) F. N. B. 178.

(c) 1 Inst. 43. (6) Stat. Westm. 2.13 Edw. I. c. 18. Stat. de (d) See book II. ch. 10. mercatoribus, 27 Ed. III. c. 9. Stat. 23 Hen. VIII. (e) F.N. B. 220. c. 6, 09.

(f) See Appendix, No. II. 01. (2) See in general, Adams on Ejectment; grant, not capable of being delivered in exeTidd Prac. 8 ed. 518, &c.; Runington on cution, as an advowson, common in gross, Ejectm. by Ballatine ; Com. Dig. Ejectment; Cro. Jac. 146; a piscary, ib. Cro. Car. 492. 1 Chitty on Pl. 4th ed. 172.

8 Mod. 277. 1 Brownl. 142. contra per AsIn general ejectment will lie to recover pos- hurst, J. 1 T. R. 361. And where the owner

1 session of any thing whereon an entry can be of the fee, by indenture, granted to A. free limade, and whereof the sheriff can deliver berty to dig for tin, and all other metals, possession. But an ejectment cannot be main- throughout certain lands therein described, tained for a close, 11 Rep. 55. Godb. 53; a and the use of all water, watercourses, and to manor, without describing the quantity of land make adits, &c. reserving to himself liberty therein, Latch. 61. Lut. Rep. 301. Hetl. to drive any new adit, and to carry any new 146; a messuage and tenement, 1 East, 441. watercourse over the premises granted, habenStra. 834; but after verdict (even pending a dum for twenty-one years, with right of rerule to arrest the judgment on this ground) entry for breach of covenants ; this deed, it the court will give ieave to enter the verdict was held, did not amount to a lease, but conaccording to the judge's notes for the mes. tained a mere licence to dig, &c. and the suage only, 8 East, 357; nor a messuage or grantee could not maintain ejectment for tenement, 3 Wils. 23; nor a messuage situate mines lying within the limits of the set, but in the parishes of A. and B. or one of them, 7 not connected with the workings of the granMod. 457; nor for things that lie merely in tee. 2 B. & A. 724,

(40) See Hov, n. (40) at the end of Vol. B. III. (41) Ib. (41) B. III. (42) Ib. (42) B. III.

ness, its history, the manner of its process, and the principles whereon it is grounded.

We have before seen (g), that the writ of covenant, for breach of the contract contained in the lease for years, was anciently the only specific remedy for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior (1) to that of the lessor, or by a grantee of the reversion (who might at any time by a common recovery have destroyed the term) (i), though the lessee might still maintain an action of covenant against the lessor, for non-performance of his contract or lease, yet he could not by any means recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor might indeed by a real action recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejectione firmae, for the trespass committed in ejecting him from his farm (k). But afterwards, when the courts of equity began to oblige the ejector to make a epecific restitution of the land to the party immediately injured, the courts of law also adopted the same method of doing complete justice ; and, in the prosecution of a writ of ejectment, introduced a species of remedy not warranted by the original writ nor prayed by the declaration (which are *calculated for damages merely, [*201] and are silent as to any restitution), viz. a judgment to recover the term, and a writ of possession thereupon (?). This method seems to have been settled as early as the reign of Edward IV.(m); though it hath been said (n) to have first begun under Henry VII. because it probably was then first applied to its present principal use, that of trying the title lo the land.

The better to apprehend the contrivance, whereby this end is effected, we must recollect that the remedy by ejectment is in its original an action brought by one who hath a lease for years, to repair the injury done him by dispossession. In order therefore to convert it into a method of trying titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years, that

may be capable of receiving this injury of dispossession. For it would be an offence, called in our law maintenance (of which in the next book), to convey a title to another, when the grantor is not in possession of the land ; and indeed it was doubted at first, whether this occasional possession, taken merely for the purpose of conveying the title, excused the lessor from the legal guilt of maintenance (o). When therefore a person, who hath right of entry into lands, determines to acquire that possession, which is wrongfully withheld by the present tenant, he makes (as by law he may) a formal entry on the premises; and being so in the possession of the soil, he there, upon the land, seals and delivers a lease for years to some third



(g) See page 157.

covenant ; et si par lessée ou grantee de reversion () P. N B. 145.

briefe de covenant versus son lessor, et countera (i) See book II. ch.9.

especial count, &c. (Fitz. abr. t. eject. firm. 2.) (k) P. 6. Ric. II. Ejectione firmae n'est que un See Bract. l. 4, tr. 1, c. 36. action de trespass en son nature, et le plaintiff ne (1) See Append. No. II. $ 4. prope fin. recosera son terme que est a venir, nient plus que (m) 7 Edw. IV. 6. Per Fairfax ; si home port en trespass home recovere damages pur trespass ejectione firmae, le plaintiff recovera son terme qui nient fait, mes a feser; mes il convient a suer par est arere, si bien come in quare ejecit infra termiaction de covenant al comen laro a recoverer son num; et, si nul soit arrere, donques tout in damages. terme : quod tota curia concessit. Et per Belknap, (Bro. Abr. t. quare ejecit infra terminum, 6.) la comen ley est, lou home est ouste de son terme par (n) F, N. B. 220. estranger, il avere ejectione firmae versus' cesty que (0) 1 Ch. Rep. Append. 39. luy ouste; et sil soit ouste par son lessor, briefe de VOL. II.


person or lessee : and, having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land, till the prior tenant, or he who had the previous possession, enters thereon afresh and

ousts him; or till some other person (either by accident or by agree[*202] ment before-hand) comes upon the land, and turns him out or

ejects him. For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession without any opportunity to defend it. Wherefore it is a standing rule, that no plaintiff shall proceed in ejectment to recover lands against a casual ejector, without notice given to the tenant in possession (if any there be), and making him a defendant if he pleases. And, in order to maintain the action, the plaintiff must, in case of any defence, make out four points before the court ; viz.title, lease, entry, and ouster. First, he must shew a good title in his lessor, which brings the matter of right entirely before the court; then, that the lessor, being seized or pos; sessed by virtue of such title, did make him the lease for the present term ; thirdly, that he, the lessee or plaintiff, did enter or take possession in consequence of such lease ; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judgment to recover his term and damages; and shall, in consequence, have a writ of possession, which the sheriff is to execute by delivering him the undisturbed and peaceable possession of his term.

This is the regular method of bringing an action of ejectment, in which the title of the lessor comes collaterally and incidentally before the court, in order to shew the injury done to the lessee by this ouster. This method must be still continued in due form and strictness, save only as to the notice to the tenant, whenever the possession is vacant, or there is no actual occupant of the premises; and also in some other cases (3). But, as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in dispute, was invented somewhat more than a century ago, by the lord chief

justice Rolle (p), who then sat in the court of upper bench; so (*203] called during the exile of king Charles the *Second. This new

method entirely depends upon a string of legal fictions; no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title (4).

(p) Styl. Pract. Reg. 108. (edit. 1657.)

(3) When the remedy by ejectment is pur. cases, provided for by the 4 Geo. II. c. 28, 11 sued in an inferior court, the fictions of the Geo. Il. c. 19, and 57 Gev. III. c. 52. modern system are not applicable, for inferior (4) An actual entry is necessary to avoid a courts have not the power of fra ming rules for fine levied with proclamations, according to confessing lease, entry, and ouster, nor the the statute 4 Hen. VII. c. 24. see book 2. p. means, if such rules were entered into, of en- 352 ; and the demise laid in the ejectment forcing obedience to them. 1 Keb. 690. 795. must be subsequent to the entry; but that is Gilb. Eject. 38. Adams on Eject. 173. If the only case in which an actual entry is rethe rule requiring service of notice upon the quired, 2 Stra. 1086. Doug. 468. I T. R. tenant in possession cannot be observed, on 741. 4 Bro. P. C. 353. 3 Burr. 1895. 7 T. account of his having quitted, and his place R. 433. 1 Prest. Conv, 207. 9 East, 17; of residence is unknown, 2 Stra. 1064. 4 T. unless it is an ejectment brought to recover R. 464. the claimant must resort to the ancient on a vacant possession, and not by a landlord practice, Ad. Eject. 181. except in particular upon a right of re-entry under the 4 Geo. II.


To this end, in the proceedings (7) a lease for a term of years is stated to have been made, by him who claims title, to the plaintiff who brings the action, as by John Rogers to Richard Smith, which plaintiff ought to be some real person, and not merely an ideal fictitious one who hath no existence, as is frequently though unwarrantably practised (r) (5); it is also stated that Smith the lessee entered ; and that the defendant William Stiles, who is called the casual ejector, ousted him ; for which ouster he brings this action. As soon as this action is brought, and the complaint fully stated in the declaration (s), Stiles, the casual ejector, or defendant, sends a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by Richard Smith, and transmitting him a copy of the declaration ; withal assuring him that he, Stiles the defendant, has no title at all to the premises, and shall make no desence; and therefore advising the tenant to appear in court and defend his own title : otherwise he, the casual ejector, will suffer judgment to be had against him ; and thereby the actual tenant Saunders will inevitably, be turned out of possession (t). On receipt of this friendly caution, if the tenant in possession does not within a limited time apply to the court to be admitted a defendant in the stead of Stiles, he is supposed to have no right at all ; and, upon judgment being had against Stiles the casual ejector, Saunders the real tenant will be turned out of possession by the sheriff.

But, if the tenant in possession applies to be made a defendant, it is allowed him upon this condition ; that he enter into a rule of court (u) to confess, at the trial of the cause, three of the four requisites for the main. tenance of the plaintiff's action ; viz. the lease of Rogers the lessor, the entry of Smith *the plaintiff, and his ouster by Saunders [*204) himself, now made the defendant instead of Stiles : which requisites being wholly fictitious, should the defendant put the plaintiff to prove them, he must of course be nonsuited for want of evidence ; but by such stipulated confession of lease, entry, and ouster, the trial will now stand upon the merits of the title only (6). This done, the declaration is altered by (@) See Append. No. II. 0 1, 2.

(t) Ibid. (F) 6 Mod. 309.

(u) Ibid. 3. (3) Append. No. II. 6 2. c. 28; in which case the lessor or his attorney may be presumed to be surrendered. 2 T. R. must actually seal a lease upon the premises 695. 1 T. R. 758. In Doe on the demise of to the plaintiff, who must be ejected by a real Bowerman v. Sybourn, 7 T. R. 2. lord Kenperson. See the mode of proceeding, Adams yon declared, that in all cases where trustees on Eject. 173.

ought to convey to the beneficial owner, he (5) The practice was reprobated, because would leave it to the jury to presume, where it was considered that it provided no respon- such a presumption might reasonably be made, sibility for costs in case the defendant suc- that they had conveyed accordingly, in order to ceeded. But this objection is now obviated, prevent a just title from being defeated by a by its being always part of the consent rule, matter of form. But if such a presumption can. that in such case the lessor of the plaintiff not be made, he who has only the equitable will pay the costs, and an attachment will lie estate, cannot recover in ejectment. ` Jones against him for disobedience of this, as of v. Jones, 7 T. R. 46. The doctrine respectevery other rule of court. Adams on Eject. ing the presumption of a surrender of a term, 235. 298.

though assigned to attend the inheritance, (6) It has been determined, that no eject. still prevails, 2 B. & A. 710. 782. 3 Bar. & ment can be maintained where the lessor of Cres. 616 ; but see Mr. Sugden's able essay the plaintiff has not a legal right of entry ; on the subject of presuming the surrender of and the heir at law was barred from recover- a term. A person, who claims under an elegit ing in ejectment, where there was an unsatis. sued out against the landlord, cannot recover fied term raised for the purpose of securing an in ejectment against the tenant, whose lease annuity, though the heir claimed the estate was granted prior to the plaintiff's judgment subject to that charge. But a satisfied term 8 T. R. 2.

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