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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 the entry 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 feudal tenures, and tended to make the fendatory 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 agreeable to the dictates of reason and the general principles of
For, in every complete title (f) to lands, there are two things necessary; the possession or seisin, and the right or property therein: (g) or, as it is expressed in Fleta, juris et seisino 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 injury to A; for which the law gives a [*177] remedy, by putting him in possession, but does it by different means according to the circumstances of the case. Thus, as B, who was him
self the wrongdoer, and hath obtained the possession by either fraud or force, nath 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 shown: and therefore the mere entry of A is not allowed to evict the heir of B; but A is driven to his action at law to remove the possession of the heir, though his entry alone would have dispossessed the ancestor.
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 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: (1) because such a one by the genuine feudal constitutions always came into the tenure solemnly *and with [*178] the lord's concurrence, by actual delivery 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 shall accrue. And by statute 4 and 5 Ann. c. 16, no entry shall be of force to satisfy the said statute of limitations, or to
(g) Mirror, c 2. § 27.
(h) L. 3, c. 15, 5.
(e) Co. Litt. 237. See the particular cases mentioned by Littleton. b. 3, ch. 6, the principles of which are well explained 'n Gilbert's law of tenures. (k) Co. Litt. 246.
(f) See book II, ch. 13.
(1) Ibid. 256.
avoid a fine levied of lands, unless an action be thereupon commenced within one year after, prosecuted with effect. (8)
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 aliens 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 alience, 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 shown, and recognized by a legal determination. And something, also, perhaps, in framing this rule of law, may be 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.
In case of deforcement, also, where the deforciant had originally a lawful possession of the land, but now detains it wrongfully, he still continues to have the presumptive prima facie evidence of right; that is, possession lawfully gained. Which possession shall not be overturned by the mere [*179 ] entry of another; but only by the demandant's showing 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 statuite 8 Hen. VI, c. 9, upon complaint made to any justice of the peace, of a forcible entry, with strong hand, on 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. 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, where the 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
(m) Ibid. 325.
(8) [However, by statute 3 and 4 Wm. IV, c. 27, one period of limitation is established for all lands and rents; and it is enacted by section 2. that after the 31st of December, 1833, no person shall make an entry or bring an action to recover any land but within twenty years next after the time at which the right to make such entry or bring such action shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or bring such action shall first have accrued to the person making or bringing the same.]
it must be shown, that though he hath at present possession, and, therefore, hatlı [*180] *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, or an assize; (9) 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 unjustly 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 committed. But this without any prejudice to the right of ownership: for, if the dispossessor has any legal claim, he may afterwards exert it, notwithstanding a recovery against him in these possessory actions. Only the law will not suffer him to be his own judge, and either take or maintain possession of the lands, until he hath recovered them by legal means: (n) rather presuming the right to have accompanied the ancient seisin, than to reside in one who had no such evidence in his favour.
1. The first of these possessory remedies is by writ of entry; which is that which disproves the title of the tenant or possessor, by showing the unlawful means by which he entered or continues possession. (o) The writ is directed to the sheriff, requiring him to "command the tenant of the land that he render (in Latin, præcipe quod reddat) to the demandant the land in question, which he claims to be his right and inheritance; and into which, as he saith, the said tenant had not entry but by (or after) a disseisin, intrusion, or the like, made to the said demandant, within the time limited by law for such actions; or that upon refusal he do appear in court on such a day, to show wherefore he hath not done it." (p) This is the original process, the præcipe upon which all the rest of the suit is grounded: wherein it appears that the tenant is required, either to deliver *seisin of the lands, or to show cause why he will not. This [*181] cause may be either a denial of the fact of having entered by or under such means as are suggested, or a justification of his entry by reason of title in himself or in those under whom he makes claim: whereupon the possession of the land is awarded to him who produces the clearest right to possess it.
In our ancient books we find frequent mention of the degrees within which writs of entry are brought. If they be brought against the party himself that did the wrong, then they only charge the tenant himself with the injury; "non habuit ingressum nisi per intrusionem quam ipse fecit." But if the intruder, disseisor, or the like, has made any alienation of the land to a third person, or it has descended to his heir, that circumstance must be alleged in the writ, for the action must always be brought against the tenant of the land; and the defect of his possessory title, whether arising from his own wrong or that of those under whom he claims, must be set forth. One such alienation or descent makes the first (7) degree, which is called the per, because then the form of a writ of entry is this. that the tenant had not entry, but by the original wrongdoer, who alienated the land, or from whom it descended to him: “non habuit ingressum, nisi per Gulielmum, qui se in illud intrusit, et illud tenenti dimisit." (r) A second alienation or descent makes another degree, called the per and cui; because the form of a writ of entry, in that case, is, that the tenant had not entry, but by or under a prior alienee, to whom the intruder demised it: "non habuit ingressum nisi per Ricardum, cui Gulielmus illud dimisit, qui se in illud intrusit." (s) These degrees thus state the original wrong, and the title of the tenant who claims under such wrong. If more than two degrees (that is, two alienations or descents) were past, there lay no writ of entry at the com(n) Mir. c. 4, 24. (p) See book II, Append. No. V, § 1. (q) Finch, L. 262. Booth, indeed (of real actions, 172). makes the first degree to consist of the original wrong done, the second in the per, and the third in the per and cui. But the difference is immaterial. (r) Booth, 181. (8) Finch, L. 263. F. N. B. 203, 204.
(0) Finch, L. 261.
(9) These writs were abolished by statute 3 and 4 Wm. IV, c. 27, § 36.
mon law. For, as it was provided, for the *quietness of men's inheritances, that no one, even though he had the true right of possession, [ *182] should enter upon him who had the apparent right by descent or otherwise, but he was driven to his writ of entry to gain possession; so, after more than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this possessory action; but was driven to his writ of right, a long and final remedy, to punish his neglect in not sooner putting in his claim, while the degree subsisted, and for the ending of suits, and quieting of all controversies. (t) But by the statute of Marlbridge, 52 Hen. III, c. 30, it was provided, that when the number of alienations or descents exceeded the usual degrees, a new writ should be allowed without any mention of degrees at all. And, accordingly, a new writ has been framed, called a writ of entry in the post, which only alleges the injury of the wrongdoer, without deducing all the intermediate title from him to the tenant; stating it in this manner: that the tenant had not entry unless after, or subsequent to, the ouster or injury done by the original dispossessor; "non habuit ingressum nisi post intrusionem quam Gulielmus in illud fecit," and rightly concluding, that, if the original title was wrongful, all claims derived from thence must participate of the same wrong. Upon the latter of these writs it is (the writ of entry sur disseisin in the post) that the form of our common recoveries of landed estates (u) is usually grounded; which, we may remember, were observed in the preceding volume (v) to be fictitious actions brought against the tenant of the freehold (usually called the tenant to the præcipe, or writ of entry), in which, by collusion, the demandant recovers the land.
This remedial instrument, or writ of entry, is applicable to all the cases of ouster before-mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. Such is that of deforcement of dower, by not assigning any dower to the widow within the time limited by law;
for which she has her remedy by writ of dower, unde nihil habet. (w) [*183] But if she be deforced of part only of her dower, she cannot then say that nihil habet; and, therefore, she may have recourse to another action, by writ of right of dower; which is a more general remedy, extending either to part or the whole; and is (with regard to her claim) of the same nature as the grand writ of right, whereof we shall presently speak, is with regard to claims in fee-simple. (x) (10) On the other hand, if the heir (being within age), or his guardian, assign her more than she ought to have, they may be remedied by a writ of admeasurement of dower. (y) But, in general, the writ of entry is the universal remedy to recover possession, when wrongfully withheld from the owner. It were, therefore, endless to recount all the several divisions of writs of entry, which the different circumstances of the respective demandants may require, and which are furnished by the laws of England: (z) being plainly and clearly chalked out in that most ancient and highly venerable collection of legal forms, the registrum omnium brevium, or register of such writs as are suable out of the king's courts, upon which Fitzherbert's natura brevium is a comment; and
(t) 2 Inst. 153. (x) Ibid. 16.
(u) See book II. Append. No. V.
(v) Book II, ch. 21. (w) F. N. B. 117. Stat. Westm. 2. 13 Ed. I, c. 7.
(z) See Bracton, 1. 4, tr. 7. c. 6, § 4. Britton, c. 114. fol. 264. The most usual were, 1. The writs of entry sur disseisin. and of intrusion, (F. N. B. 191, 203) which are brought to remedy either of those species of ouster. 2. The writs of dum fuit infra ætatem, and dum fuit non compos mentis, (1bid. 192, 202) which lie for a person of full age, or one who hath recovered his understanding, after having (when under age or insane) aliened his lands; or for the heirs of such alienor. 3. The writs of cui in vita, and cui ante divortium, (Ibid. 193, 204) for a woman, when a widow or divorced, whose husband during the coverture (cui in vita sua, vel cui ante divortium, ipsa contradicere non potuit) hath aliened her estate. 4. The writ ad communem legem, (Ibid. 207) for the reversioner after the alienation and death of the particular tenant for life. 5. The writs in casu proviso and in consimili casu, (Ibid. 205, 206) which lay not ad communem legem, but are given by stat. Gloc. 6 Edw. I, c. 7. and Westm. 2. 13 Edw. I, c. 24, for the reversioner after the alienation, but during the life, of the tenant in dower or other tenant for life. 6. The writ ad terminum qui præteriit, (Ibid 201) for the reversioner, when the possession is withheld by the lessee or a stranger after the determination of a lease for years. 7. The writ causa matrimonii prælocuti, (Ibid. 205) for a woman who giveth land to a man in fee or for life, to the intent that he may marry her, and ae doth not. And the like in case of other deforcements.
(10) Both these writs were abolished by the common law procedure act, 1860, and a writ. c summons from the common pleas substituted.
in which every man who *is injured will be sure to find a method of [*181] relief exactly adapted to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance. So that the wise and equitable provision of the statute Westm. 2, 13 Edw. I, c. 24, for framing new writs when wanted, is almost rendered useless by the very great perfection of the ancient forms. And, indeed, I know not whether it is a greater credit to our laws to have such a provision contained in them, or not to have occasion, or at least very rarely, to use it.
In the time of our Saxon ancestors, the right of possession seems only to have been recoverable by writ of entry, (a) which was then usually brought in the county court. And it is to be observed, that the proceedings in these actions were not then so tedious when the courts were held, and process issued from and was returnable therein at the end of every three weeks, as they became after the conquest, when all causes were drawn into the king's courts, and process issued only from term to term: which was found exceedingly dilatory, being at least four times as slow as the other. And hence, a new remedy was invented in many cases to do justice to the people, and to determine the possession in the proper counties, and yet by the king's judges. This was the remedy by assise, which is called by statute Westm. 2, 13 Edw. 1, c. 24, festinum remedium, in comparison with that by a writ of entry; it not admitting of many dilatory pleas and proceedings, to which other real actions are subject. (b)
2. The writ of assize is said to have been invented by Glanvil, chief justice to Henry the Second; (c) and, if so, it seems to owe its introduction to the parliament held at Northampton, in the twenty-second year of that prince's reign; when justices in eyre were appointed to go round the kingdom in order to take these assizes: and the assizes themselves (particularly those of mort d'ancestor and novel disseisin) were clearly pointed out and described. (d) As a writ of entry is a real action (11) which disproves the title of the tenant by [*185] showing the unlawful commencement of his possession; so an assize is
a real action, which proves the title of the demandant merely by showing his, or his ancestor's, possession; (e) and these two remedies are in all other respects so totally alike, that a judgment or recovery in one is a bar against the other; so that, when a man's possession is once established by either of these possessory actions, it can never be disturbed by the same antagonist in any other of them. The word assize is derived by Sir Edward Coke (f) from the Latin assideo, to sit together: and it signifies, originally, the jury who try the cause, and sit together for that purpose. By a figure it is now made to signify the court or jurisdiction, which summons this jury together by a commission of assize, or ad assisas capiendas; and hence the judicial assemblies held by the king's commission in every county, as well to take these writs of assize, as to try canses at nisi prius, are termed in common speech the assizes. By another somewhat similar figure, the name of assize is also applied to this action, for recovering possession of lands; for the reason, saith Littleton, (g) why such writs at the beginning were called assizes, was, for that in these writs the sheriff is ordered to summon a jury, or assize; which is not expressed in any other original writ. ()
This remedy, by writ of assize, is only applicable to two species of injury by ouster, viz.: abatement, and a recent or novel disseisin. If the abatement happened upon the death of the demandant's father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy is by an assize of mort d'ancestor, or the death of one's ancestor. This writ directs the sheriff to summon a jury
(a) Gilb. Ten. 42.
(b) Booth, 262.
(c) Mirror, c. 2, § 25.
(d) 9. Si dominus feodi negat hæredibus defuncti saisiņam ejusdem feodi justitiarii domisi regis faciant inde fieri, recognitionem per xii legales homines, qualem saisinam defunctus inde habuir, die qua fuit vivus et mortuus; et, sicut recognitum fuerit. ita hæredibus ejus restituant. § 10. Justitiari təmiri regis faciant Hieri recognitionem de dissaisinis factis super assisam, a tempore quo dominus rex vit in Angiiam proxime post parem factam inter ipsum et regem filium suum. (Spelm. Cod. 330.) (e) Finch. L. 28t (f) 1 Inst. 153.
(g) § 231.
(h) Co. Litt. 160.
(11) [The writs of assize and entry are now abolished. See statute 3 and 4 Win. 17, c. 27 1