punish his neglect (nam leges vigilantibus, non dormientibus, subveniunt: for the laws aid the vigilant, not the careless), and also because it is presumed that the supposed wrongdoer has in such a length of time procured a legal title, otherwise he would sooner have been sued. This time of limitation by the statute of Merton, 20 Hen. III, c. 8, and Westm. 1, 3 Edw. I, c. 39, was successively dated from particular æras, viz.: from the return of King John from Ireland, and from the coronation, &c., of King Henry *the [*189] Third. But this date of limitation continued so long unaltered, that it became indeed no limitation at all; it being above three hundred years from Henry the Third's coronation to the year 1540, when the present statute of limitations (y) was made. This, instead of limiting actions from the date of a particular event, as before, which in process of years grew absurd, took another and more direct course, which might endure forever: by limiting a certain period, as fifty years for lands, and the like period (2) for customary and prescriptive rents, suits and services (for there is no time of limitation upon rents created by deed, or reserved upon a particular estate), (a) and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seisin, or dispossession of his ancestors, beyond such certain period.1 But this does not extend to services, which by common possibility may not happen to become due more than once in the lord's or tenant's life; as fealty, and the like. (b) And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseisin complained of; for if it be of an older date, it can with no propriety be called a fresh, recent, or novel disseisin; which name Sir Edward Coke informs us was originally given to this proceeding, because the disseisin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone. (c) And we may observe, (d) that the limitation prescribed by Henry the Second at the first institution of the assize of novel disseisin was from his own return into England, after the peace made between him and the young king, his son; which was but the year before.2 Remitter.- What has been here observed may throw some light on the doctrine of remitter, which we spoke of in the second [*190] *chapter of this book; and which we may remember was where one who hath right to lands, but is out of possession, hath afterwards the freehold cast upon him by some subsequent defective title, and enters by virtue of that title. In this case the law remits him to his ancient and more certain right, and by an equi (y) 32 Hen. VIII, c. 2. (z) So Berthelet's original edition of the statute, A. D. 1540; and Cay's, Pickering's, and Ruffhead's editions, examined with the record. Rastell's and other intermediate editions, which Sir Edward Coke (2 Inst. 95) and other subsequent writers have followed, make it only forty years for rents, &c. table fiction supposes him to have gained possession in consequence, and by virtue thereof: and this, because he cannot possibly obtain judgment at law to be restored to his prior right, since he is himself the tenant of the land, and therefore hath nobody against whom to bring his action. This determination of the law might seem superfluous to a hasty observer; who perhaps would imagine, that since the tenant hath now both the right and also the possession, it little signifies by what means such possession shall be said to be gained. But the wisdom of our ancient law determined nothing in vain. As the tenant's possession was gained by a defective title, it was liable to be overturned by showing that defect, in a writ of entry; and then he must have been driven to his writ of right, to recover his just inheritance; which would have been doubly hard, because during the time he was himself tenant, he could not establish his prior title by any possessory action. The law therefore remits him to his prior title, or puts him in the same condition as if he had recovered the land by writ of entry. Without the remitter, he would have had jus, et seisinam (a right and seisin) separate; a good right, but a bad possession; now, by the remitter, he hath the most perfect of all titles, juris et seisina conjunctionem (the conjunction of right and seisin). III. Writ of right. By these several possessory remedies the right of possession may be restored to him that is unjustly deprived thereof. But the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right of property, which may still subsist in another man. For, [*191] as one man may have the possession, and another the right of possession, which is recovered by these possessory actions; so one man may have the right of possession, and so not be liable to eviction by any possessory action, and another may have the right of property, which cannot be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as are in the nature of a writ of right.1 When allowed.-This happens principally in four cases. 1. Upon discontinuance by the alienation of tenant in tail: whereby he who had the right of possession hath transferred it to the alienee; and therefore his issue, or those in remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant hath so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action; for such judgment, if obtained by him who hath not the true ownership, is held to be a species of deforcement; which, however, binds the right of possession, and suffers it not to be ever again disputed, unless the right of property be also proved. In case the demandant, who claims the right is barred from these possessory actions by length of time and the statute of limitations before-mentioned: for an undisturbed possession for fifty years ought not to be devested by any thing, but a 1 Now that the action of ejectment, which is founded upon a right of possession, is the only mode of recovering land, this distinction is in effect destroyed. [Newell on Eject., 56; Ex parte Bradstreet, 7 Pet. 634.] very clear proof of the absolute right of property. In these four cases the law applies the remedial instrument of either the writ of right itself, or such other writs as are said to be of the same nature. 1. And first, upon an alienation by tenant in tail, whereby the estate-tail is discontinued, and the remainder or reversion is by failure of the particular estate displaced, and turned into a mere right, the remedy is by action of formedon (secundum formam doni: according to the form of the gift), which is in the nature of a writ of right, (e) and is the highest action that tenant in tail can have. (ƒ) For he cannot have an absolute writ of right, which is confined only to such as claim in fee-simple: and for that reason this writ of formedon was granted him by the statute de donis or [*192] *Westm. 2, 13 Edw. I, c. 1, which is therefore emphatically called his writ of right. (g) This writ is distinguished into three species: a formedon in the descender, in the remainder, and in the reverter. A writ of formedon in the descender lieth, where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is disseised of them, and dies; in this case the heir in tail shall have this writ of formedon in the descender, to recover these lands so given in tail against him who is then the actual tenant of the freehold. (h) In which action the demandant is bound to state the manner and form of the gift in tail, and to prove himself heir secundum formam doni. A formedon in the remainder lieth, where a man giveth lands to another for life or in tail, with remainder to a third person in tail or in fee, and he who hath the particular estate dieth without issue inheritable, and a stranger intrudes upon him in remainder and keeps him out of possession. (2) In this case the remainder-man shall have his writ of formedon in the remainder, wherein the whole form of the gift is stated, and the happening of the event upon which the remainder depended. This writ is not given in express words by the statute de donis; but is founded upon the equity of the statute, and upon this maxim in law, that, if any one hath a right to the land, he ought also to have an action to recover it. A formedon in the reverter lieth, where there is a gift in tail, and afterwards by the death of the donee or his heirs without issue of his body the reversion falls in upon the donor, his heirs or assigns: in such case the reversioner shall have this writ to recover the lands, wherein he shall suggest the gift, his own title to the reversion minutely derived from the donor, and the failure of issue upon. which his reversion takes place. () This lay at common law, before the statute de donis, if the donee aliened before he had performed the condition of the gift, by having issue, and afterwards died without any. (7) The time of limitation in a formedon by statute 21 Jac. I, c. 16, is twenty years; within *which space [*193] of time after his title accrues, the demandant must bring his action, or else he is forever barred." 2. In the second case; if the owners of a particular estate, as for life, in dower, by the curtesy, or in fee-tail, are barred of the right of possession by a recovery had against them through their default (e) Finch. L. 267. (i) Ibid. 217. (f) Co. Litt. 326. (g) F. N. B. 255. (h) Ibid. 211, 212. or non-appearance in a possessory action, they were absolutely without any remedy at the common law: as a writ of right does not lie for any but such as claim to be tenants of the fee-simple. Therefore the statute Westm. 2, 13 Edw. I, c. 4, gives a new writ for such persons, after their lands have been so recovered against them by default, called a quod ei deforceat (that he deforced him); which, though not strictly a writ of right, so far partakes of the nature of one, as that it will restore the right to him who has been thus unwarily deforced by his own default. (m) But, in case the recovery were not had by his own default, but upon defence in the inferior possessory action, this still remains final with regard to these particular estates, as at the common law: and hence it is, that a common recovery (on a writ of entry in the post), had, not by default of the tenant himself, but (after his defence made and voucher of a third person to warranty) by default of such vouchee, is now the usual bar to cut off an estate-tail. (n) 3, 4. Thirdly, in case the right of possession be barred by a recovery upon the merits in a possessory action, or lastly by the statute of limitations, a claimant in fee-simple may have mere writ of right; which is in its nature the highest writ in the law, (o) and lieth only of an estate in fee-simple, and not for him who hath a less estate. This writ lies concurrently with all other real actions, in which an estate of fee-simple may be recovered: and it also lies after them, being as it were an appeal to the mere right, when judgment hath been had as to the possession in an inferior possessory action. (p) But though a writ of right may be brought, where the demandant is entitled to the possession, yet it [*194] rarely is advisable to be brought in such cases; as a more expeditious and easy remedy is had, without meddling with the property, by proving the demandant's own, or his ancestor's, possession, and their illegal ouster, in one of the possessory actions. But, in case the right of possession be lost by length of time, or by judgment against the true owner in one of these inferior suits, there is no other choice: this is then the only remedy that can be had; and it is of so forcible a nature, that it overcomes all obstacles, and clears all objections that may have arisen to cloud and obscure the title. And, after issue once joined in a writ of right, the judgment is absolutely final; so that a recovery had in this action may be pleaded in bar of any other claim or demand. (7) tor. The pure, proper, or mere writ of right lies only, we have said, to recover lands in fee-simple, unjustly withheld from the true proprieBut there are also some other writs which are said to be in the nature of a writ of right, because their process and proceedings do mostly (though not entirely) agree with the writ of right: but in some of them the fee-simple is not demanded; and in others not land, but some incorporeal hereditament. Some of these have been already mentioned, as the writ of right of dower, of formedon, &c., and the others will hereafter be taken notice of under their proper divisions. (m) F. N. B. 155. (n) See book II, ch. 21. (0) F. N. B. 1. (p) Ibid. 1, 5. Writ of escheat.-Nor is the mere writ of right alone, or always, applicable to every case of a claim of lands in fee-simple: for if the lord's tenant in fee-simple dies without heir whereby an escheat accrues, the lord shall have a writ of escheat, (r) which is in the nature of a writ of right. (s) And if one of two or more coparceners deforces the other, by usurping the sole possession, the party aggrieved shall have a writ of right, de rationabili parte (for the reasonable part), (t) which may be grounded on the [*195] *seisin of the ancestor at any time during his life; whereas, in a nuper obiit (which is a possessory remedy) (u) he must be seized at the time of his death. But, waiving these and other minute distinctions, let us now return to the general writ of right. Where brought. This writ ought to be first brought in the courtbaron (w) of the lord, of whom the lands are holden; and then it is open or patent: but if he holds no court, or hath waived his right, remisit curiam suam, it may be brought in the king's courts by writ of præcipe originally; (x) and then it is a writ of right close; (y) being directed to the sheriff and not the lord. (2) Also when one of the king's immediate tenants in capite is deforced, his writ of right is called a writ of præcipe in capite (command for the tenant in capite) (the improper use of which, as well as of the former præcipe quia dominus remisit curiam (because the lord has waived his court), so as to oust the lord of his jurisdiction, is restrained by magna carta), (a) and being directed to the sheriff, and originally returnable in the king's courts, is also a writ of right close. (b) There is likewise a little writ of right close, secundum consuetudinem manerii (according to the custom of the manor), which lies for the king's tenants in ancient demesne, (c) and others of a similar nature, (d) to try the right of their lands and tenements in the court of the lord exclusively. (e) But the writ of right patent itself may also at any time be removed into the county court, by writ of tolt, (f) and from thence into the king's courts by writ of pone (put) (g) or recordari facias (that you cause to be recorded) at the suggestion of either party that there is a delay or defect of justice. (h) In the progress of this action, (2) the demandant must allege some seisin of the lands and tenements in himself, or else in some person under whom he claims, and then derive the right from the [*196] person so seised to himself; to which the tenant may answer by denying the demandant's right, and averring that he has more right to hold the lands than the demandant has to demand. them: and this right of the tenant being shown, it then puts the demandant upon the proof of his title: in which, if he fails, or if the tenant hath shown a better, the demandant and his heirs are perpetually barred of their claim; but if he can make it appear that his right is superior to the tenant's, he shall recover the land against the tenant and his heirs forever. But even this writ of right, how (d) Kitchen, tit. copyhold. (t) F N. B. 9. 1, c. 9, and tr. 3, c. 13, § 9. Old Tenur. t. garde, and t. brief de recto claus. F. N. B. 11. (f) Append. No. Í, § 2. (u) See page 186. (y) Booth, 91. (c) See book II, c. 6. t. tenier en socage. Old N. B. (g) Ibid. § 3. (h) F. N. B. 3, 4 (i) Append. No. I, § 5. |