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OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOS SESSION, 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.
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. And first, an abatement is where a person dies siezed of an inheritance, and before the heir or devisee enters, a stranger *who has no right makes [*168] 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.
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 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 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 rever sion. 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; it A dies seised of lands in fee-simple, 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 R 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. Disseisin is a wrongful putting out of him that is scised 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
[*170] corporeal inheritances, or incorporeal. 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 five methods of working a disseisin thereof: 1. By enclos ure; 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 disseisın (which will be explained in the sequel of this chapter), instead of being *driven to the more tedious process of a writ of entry. (h) The true [*171] 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 necesBut 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
(c) Co. Litt. 277. F. N. B. 203, 204.
(d) Co. Litt. 277.
(e) Co. Litt. 181.
the lord's acceptance of rent or service, from him who had dispossessed another, might constitute a complete disseisir. 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. Such is, fourthly, the injury of discontinuance; (1) which happens when 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 feesimple, 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 [*172] o 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, (2) 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. 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, there fore, at present no discontinuance can be thereby occasioned. (3)
(1) [The term "discontinuance" is used to distinguish those cases where the party, whose free hold 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 anything which 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 hereditaments necessarily operates as a disseisin or discontinuance of all the incorporeal rights or incidents which the disseisee or discontinuee has himself in, upon, or out of the land affected by the disseisin or discontinuance. Ib. 332, a. n. 1. Conveyances by feoffment and livery, or by fine or recovery by tenant in tail in possession, work a discontinuance; but if by covenant to stand seised to uses, under the statute, lease and release, bargain and sale, they do not: Co. Litt. 330, a. n. 1; unless accompanied with a fine, as one and the same assurance in the two latter instances: 10 Co. 95; but if the fine be a distinct assurance, it is otherwise. 2 Burr. 704. See ante, book 2, 301. See further, Adams on Ejectment, 35, &c.; 2 Saund. index, Discontinuance; 2 D. and R. 373; 1 B. and C. 238.[
(2) This is no longer the law. See statute 3 and 4 Wm. IV, c. 27, § 39; also 8 and 9 Vic. c. 106, § 4.
(3) And a discontinuance in any case would now appear to be impossible, 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.
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 has 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 [ *173] 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 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. 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. (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 wrongful, and, therefore, a deforcement. (p) The same happens, *when one of non-sane [*174] memory alienes his lands or tenements, and the alienee enters and holds possession; this may also be a deforcement. (7) 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, covenauts 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.(4) 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 heredita
(k) Co. Litt. 277.
(0) F. N. B. 205.
(4) This proceeding was abolished by statute 3 and 4 Wm. IV, c. 74.
ment, 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. 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 feudal investiture by the lord: (u) or he may enter on any part of it in the same county, declaring it to be in the name of the whole: (2) but if it lies in different counties he must make dif. [*175] ferent 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 derests that seisin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim, as near to the estate as he can, with the like forms and solemnites: which claim is in force for only a year and a day. (a) And this claim, if it be repeated once in the space of every year and 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, (z) 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. (5)
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 (b) 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 or entry, ad [*176] terminum qui præteriit. (6)
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. Descents, which take away entries, (d) (7) are when any one, seised by
(t) See page 5. (x) Litt. 422.
(b) See book II, p. 150,
(u) See book II. ch. 14, p. 209.
(c) Co. Litt. 57.
(v) Litt. § 417. (w) Co. Litt. 252. (z) Co. Litt. 15. (a) Ibid. 237, 258. (d) Litt. §§ 385-413.
(5) [But now by statute 3 and 4 Wm. IV, c. 27 s. 10, no person shall be deemed to have been in possession of any land within the meaning of that act, merely by reason of having made an entry thereon; and by section 11 no continual or other claim upon or near any land sha!! preserve any right of making an entry. The distinction between the law as laid down by Blackstone and the present law as to an entry is, that by the former a bare entry on land was attended with a certain effect in keeping a right alive, whereas by the latter it has no effect whatever unless there be a change of possession. When this takes place, the remedy by entry is still in operation; when not, an entry is of no avail, and this remedy no longer exists.] (6) The statute mentioned in the last note abolishes this proceeding.
(7) [The right of entry is no longer taken away by descent. Statute 3 and 4 Wm. IV, c. 27. 39. This and the two following paragraphs are not applicable to the present state of the law.]