OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD. 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 substantial and permanent nature than those transitory rights of which personal chattels are the object. Species of 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 wrong-doer 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 injuries 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, will be considered in the present chapter. 1. By abatement. And first, an abatement is where a person dies seized of an 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 abate- [168] ment, 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. The 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 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. By intrusion.-The second species of injury by ouster, [*169] or amotion of possession from the freehold, is by intrusion: 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 seized 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 seized of lands in fee-simple, and before the entry of B his heir Centers 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. By disseisin.- The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrongful putting out of him that is seized 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 at 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 (c) Co. Litt. 277. F. N. B. 203, 204. (d) Co. Litt. 277. (e) Co. Litt. 181. 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 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), instead of being *driven to the [*171] 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 feudal 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 feudal 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 assize 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. By discontinuance.- Such is, fourthly, the injury of discontinuance; which happens when he who hath an estate-tail, maketh a larger estate of the land than by law he is entitled to do: (2) 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 [*172] simple, or for the life of the feoffee, or in tail; all *which are beyond his power to make, for that by the common 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 seized 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. 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. (1) 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.2 5. By deforcement. 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 [*173] right of property, but 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 seigniory, and lands escheat to him propter defectum sanguinis (through failure of issue), but the seisin of the lands is withheld from him; here the injury is not abatement, for the right vests not in the lord as heir or devisee; nor (i) Finch, L. 190. (j) F. N. B. 194. 1 This is no longer the law. See statute 3 and 4 Wm. IV. c. 27, § 39; also, 8 and 9 Vic., c. 106, § 4. 2 And a discontinuance in any case would now appear to be impossible, (k) Co. Litt. 277. since the statutes mentioned in the last note, the second of which declares that a feoffment made after October 1, 1845, shall not have a tortious operation, so as to create an estate by wrong. 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. (1) 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. (0) 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 wrong ful, and, therefore, a deforcement. (p) The same happens, [*174] *when one of non-sane memory alienes his lands or tenements, 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 fee-simple, 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 moiety; 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 person against whom the fictitious action is 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. (1) F. N. B. 143. (m) Ibid. 8, 147. (n) Finch, L. 263. F. N. B. 201, 205, 6, 7. See book II, ch. 9, p. 151. (0) F. N. B. 205. 1 This proceeding was abolished by statute 3 and 4 Wm. IV, c. 74. |