In the progress of this action, (i) 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 person so seised to himself; [*196] 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 re cover the land against the tenant and his heirs forever. But even this writ of right, however superior to any other, cannot be sued out at any distance of time. For by the ancient law no seisin could be alleged by the demandant, but from the time of Henry the First; (k) by the statute of Merton, 20 Hen. III, c. 8, from the time of Henry the Second; by the statute of Westm. 1, 3 Edward I, c. 39, from the time of Richard the First; and now, by 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 suf ficient title against all the world; and cannot be impeached by any dormant claim whatsoever. (16)

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 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 connection 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 *abso[*197] lutely antiquated as to be out of force, though the whole is certainly out of use: there being but very few instances for more than a century past of prosecuting any real action for land by writ of entry, assize, 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. (17)

(16) [This is far from being universally true; for an uninterrupted possession for sixty years will not create a title where the claimant or demandant had no right to enter within that time; as where an estate in tail, for life, or for years, continues above sixty years, still the reversioner may enter and recover the estate; the possession must be adverse, and Lord Coke says, "it has been resolved, that although a man has been out of possession of land for sixty years, yet if his entry is not tolled he may enter and bring any action of his own posession; and if his entry be congeable, and he enter, he may have an action of his own possession." 4 Co. 11, b.]

(17) [The real actions mentioned in this chapter are now abolished, and the title to lands is now always tried, as it was usually in the time of Blackstone, by an action of ejectment or of trespass.]

Real and mixed actions, except ejectment, are now almost universally abolished or become obsolete in the United States, and ejectment is the usual remedy to try title to lands. The proceedings in that action have also, by statute been divested of all useless forms, and made perfectly simple.

126

CHAPTER XI.

OF DISPOSSESSION, OR OUSTER OF CHATTELS REAL.

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, 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, statute-staple, 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 is only liable to happen by a species of disseisin, or 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 assize of novel disseisin. (a) (1) But this depends upon the several statutes, which *create these respective interests, (b) and which [*199] 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 assize, as tenants of the freehold shall have; and in that respect they have the similitude of a freehold. (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 remedies, according to the circumstances and situation of the wrongdoer: the writ of ejectione firma; 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; which 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 firma, or action of trespass in ejectment, (2) lieth 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. () And by this writ the plaintiff shall recover back his term, or the remainder of it, with damages.

[*300]

*Since the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. It may not therefore be improper to delineate, with some degree of minuteness, its history, the manner of its process, and the principles whereon it is grounded.

13 Edw. I, c. 18. Stat. de mercatoribus. 27 Edw. III. c. 9. Stat. 23 Hen. VIII, c. 6, § 9. (d) See book II, ch. 10. (e) F. N. B. 220. (f) See Appendix, No. II, § 1.

(1) The assize of novel disseisin is now abolished, and ejectment is the present remedy. (2) [In general ejectment will lie to recover possession of any thing whereon an entry can be made, and whereof the sheriff can deliver possession. But an ejectment cannot be maintained for things that lie merely in grant, not capable of being delivered in execution, as an advowson, common in gross: Cro. Jac. 146; a piscary: Id., Cro. Car. 492; 8 Mod. 277; 1 Brownl. 142 contra, per Ashurst, J. 1 T. R. 361.1

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 (h) 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 firma, 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 specific 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, and are silent as [*201] to any restitution), viz.: a judgment to recover the term, and a writ of possession thereupon. (1) 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 to the land. (3)

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 was 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. (0) 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 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 agreement beforehand) comes upon the land, and turns him out or ejects him. For this injury the lessee is entitled to [*202] 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 (g) See page 157. (k) P. 6. Ric. II. Ejectione firmæ n'est que un action de trespass en son nature, et le plaintiff ne recovera terme que est a venir, nient plus que en trespass home recoverà damages pur trespass nient fuit mes a feser} mes il convient a suer par action de covenant al comen ley a recoverer son terme: quod tota curia concessit, Et per Belknap, la comen ley est, lou home est ouste de son terme par estranger, il avera ejectione firmæ versus cesty que luy ouste; et sil soit ouste par son lessor. briefe de covenant; et si par lessee ou grantee de reversion briefe de covenant versus son lessor, et countera especial count, &c. (Fitz. Ábr. t. eject. firm. 2.) See Bract

4. 4, tr. 1, c. 36.

(h) F. N. B. 145.

(1) see Append. No. II, § 4, prope fin.

(i) See book II. ch. 9.

(m) 7 Edw. IV. 6. Per Fairfax; si home port ejectione firma. le plaintiff recovera son terme qui est arere, si bien come in quare ejecit infra terminum; et, si nul soit arrere, donques tout in damages. ↑ (Bro. Abr. &quare ejecit infra terminum, 6.)

(n) F. N. B. 220.

(0) I Ch. Rep. Append. 39.

(3) See on this subject the note to Doe d. Poole v. Errington, 1 A. and E. 756.

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 show a good title in his lessor, which brings the matter of right entirely before the court, then, that the lessor, being seized or possessed 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 show 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. 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 called during the exile of King Charles the *Second. This new method entirely depends upon a string of legal [*203]

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. To this end, in the proceedings (q) a lease for a term of years is stated to have been made, by him who claims the 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) 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 defence; 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 maintenance of the plaintiff's action; viz.: the lease of Rogers, the lessor, the entry of Smith, *the plaintiff, and his ouster by Saunders himself, now made the defendant instead of Stiles: which requisites being wholly fictitious, should [204] 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. This done, the declaration is altered by inserting the name of George Saunders instead of William Stiles, and the cause goes down to trial under the name of Smith (the plaintiff), on the demise of Rogers (the lessor), against Saunders, the new defendant. And therein the lessor of the plaintiff is bound to make out a clear title, otherwise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted. But, if the lessor makes out his title in a satisfactory manner, then judgment and a writ of possession shall go for Richard Smith, the nominal plaintiff, who by this trial has proved the right of John Rogers, his supposed lessor. Yet, to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land, all tenants are obliged by statute 11 Geo. II, c. 19, on pain of forfeiting three years' rent, to give notice to their landlords, when served with any declaration in ejectment: and any landlord may by leave of the court be made a co-defendant to the action, in case the tenant himself appears to it; or, if he makes default, though judgment must be then signed against the casual ejector, yet execution shall be stayed, in case the landlord applies to be made a defendant, and enters into the common rule; a right, which indeed the landlord had long before the provision of this statute; (v) in like manner as (previous to the statute of Westm. 2, c. 3) if in a real action the tenant of the freehold made default, the remainder-man or reversioner had a right to come in and defend the possession; lest, if judgment were had against the tenant, the estate of those behind should be turned to a naked right. (w) (4) But, if the new defendants, whether landlord, or tenant, or both, after entering into the common rule, fail to appear at the trial, and to confess lease, entry, and ouster, the plaintiff, Smith, must indeed be there nonsuited, for want of proving those requisites; but judgment will in the end be entered against the casual ejector Stiles; for the condition on which Saunders, or his landlord, was admitted a defendant is broken, and, therefore, the plaintiff is put again in the *same situation as if he never had appeared [*205] at all; the consequence of which (we have seen) would have been, that judgment would have been entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered possession to Smith. The same process, therefore, as would have been had, provided no conditional rule had been ever made, must now be pursued as soon as the condition is broken. (5)

(v) Styl. Prac. Reg. 108, 111, 235. 7 Mod. 70. Salk. 257. Burr. 1301.

(w) Bracton, l. 5, c. 10, § 14.

(4) As to who may defend as landlord under this statute, see 4 T. R. 122; 8 id. 645; 6 Bing. 613; Bull. N. P. 95; Selw. N. P. 10th ed. 722.

(5) [New proceedings for the recovery of land have been created by the common law proce. dure act, 1852, and the former action of ejectment has given way altogether to the new proce. dure. The form of action which has been abolished was valuable in this respect: that it allowed no questions to be raised except that of title. If the person who brought the action had a right to possession, he was entitled to recover without regard to whether the person in possession, or who took defence to the action, had ousted him or not. The new action is also an action for the recovery of the land, without regard to any other claim which may exist be tween the parties.

An action of ejectment is now commenced by the issue of a writ directed to the person in possession by name, and to all persons entitled to defend the possession of the property claimed. which property must be described in the writ with reasonable certainty. The writ must state the names of all the persons in whom the title is alleged to be, and it commands the persons to whom it is directed, to appear, within sixteen days after service, in the court from which it issued, to defend the possession of the property sued for, or such part thereof as they may think fit. It must also contain a notice that in default of appearance they will be turned out of possession.]

In the United States ejectment is now generally commenced by filing declaration or complaint against the party in possession, setting forth, in general terms, that the plaintiff is entitled to the possession of the premises, describing the same, and that he claims the same in feesimple (or otherwise, as the case may be), and that the defendant unlawfully withholds the same. A copy of this declaration or complaint is served on the defendant, and unless ho pleads or answers to it within the time prescribed by statute or rule of court, judgment may pass against him by default. In some states parties not in possession, but who claim rights in