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shewing that defect in a writ of entry;33and 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 actions. 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 separate; a good right, but a bad possession: now, by the remitter, he hath the most perfect of all titles, juris et seisinae conjunctionem.

III. 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, as *one man may have the possession, and [*191] another the right of possession, which is recovered by these pos

sessory 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.34

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 i 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. 4. 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 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 na


1. And first, upon an alienation by tenant in tail, whereby the estatetail 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), 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 *Westm. 2. 13 [*192] Edw. I. c. 1, which is therefore emphatically called his writ of right (g). This writ is distinguished into three species: a fermcdon 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 (e) Finch, L. 267

(f) Co. Litt. 316

(g) F. N. B. 255.

(34) Ib. (34) B. III.

(33) See Hov. n. (33) at the end of the Vol. B. III.

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 (i). 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 his 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 (k). 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 (1). The time of limitation in a formedon by sta[*193] tute 21 Jac. I. c. 16. is twenty years (14); within *which space of time after his title accrues, the demandant must bring his action, or else he is for ever barred.

2. In the second case; if the owners of a particular estate, as for life, in dower,35by the courtesy, or in fee-tail, are barred of the right of possession by a recovery36had against them, through their default 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 Ed. 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;37 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 limita

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tions, a claimant in fee-simple may have a mere writ of right; which is in its nature the highest writ in the law (o), and lieth only of an estate in feesimple, 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 [194] be brought, where the demandant is entitled to the possession, yet it rarely is adviseable 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 (15); so that a recovery had in this action may be pleaded in bar of any other claim or demand (9).

The pure, proper, or mere writ of right lies only, we have said, to recover lands in fee-simple, unjustly withheld from the true proprietor. But 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. 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).38 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, derationabili parte (t), which may be grounded on the *seisin of the [*195] ancestor at any time during his life; whereas in a nuper obiit (which is a possessory remedy) (u) he must be seised at the time of his death. But, waving these and other minute distinctions, let us now return to the general writ of right.

This writ ought to be first brought in the court-baron (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

(0) F. N. B. 1.

(p) Ibid. 1.5.

(q) Ibid. 6. Co. Litt. 158.

(r) F. N. B. 143.

(15) In New-York, as before mentioned, writs of right are superseded by the action of ejectment; and by the 2 R. S. 309, § 36, &c. the judgment in ejectment rendered on a verdict or on default, is conclusive as to the title upon the party against whom it is rendered, and those claiming under him after suit brought. But if rendered on a verdict, a new trial must be allowed once if applied for in

(s) Booth, 135.

(t) F. N. B. 9.

(u) See page 186.
(w) Append. No. I. ◊ 1.

three years, and may be allowed again if ap plied for in two years after the judgment in the second suit. If rendered on default, the judgment may be vacated in five years, and a new trial granted. Persons under disabilities have the usual exception in their favour. See notes 10 and (†) ante, p. 178: and 2 R. S. 309, § 39.

(38) See Hov. n. (38) at the end of the Vol. B. III.

in the king's courts by writ of praecipe 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 praecipe in capite (the improper use of which, as well as of the former praecipe quia dominus remisit curiam, 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, 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 (g) or recordari facias, at the suggestion of either party that there is a delay or defect of justice (h).

In the progress of this action (i), the demandant must allege some seisin of the lands and tenements in himself (16), or else in some person [*196] under whom he claims, and then derive the right * from the 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 shewn, it then puts the demandant upon the proof of his title: in which, if he fails, or if the tenant hath shewn 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 for ever. 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

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(16) A writ of right cannot be maintained without shewing an actual seisin by taking the esplees, either in the demandant himself or the ancestor from whom he claims. 1 H. B. 1. And the demandant must allege in his count that his ancestor was seised of right, as well as that he was seised in his demesne, as of fee. 2 B. & P. 570. 5 East, 272. And if the count state that the lands descended to four women, as nieces and co-heirs of J. S., it must also shew how they were nieces. 3 B. & P. 453. 1 N. R. 66. Proof of possession of land and pernancy of the rents, is prima facie evidence of a seisin in fee of the pernor. But proof of forty years' subsequent possession by a daughter, while a son and heir lived near and knew the fact, is much stronger evidence that the first possessor had only a particular estate. 5 Taunt. 326. 1 Marsh. 68.

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The court requires a strict observance of the prescribed forms in this proceeding, and will not assist the demandant who applies to rectify omissions or irregularities. 2 N. R. 429. 1 Marsh. 602. 1 Taunt. 415. 1 Bing. 208. The court will not permit the mise joined in a writ of right to be tried by a jury instead of the grand assize, though both parties desire it. 1 B. & P. 192. As to summoning and swearing the four knights, see 3 Moore, 249. Taunt. & Brod. 17. They may be summoned from the grand jury when present at the assizes. Ib. As to the tender of the demymark, and what the demandant must prove previous to the tenant being put upon proof of his title, see Holt C. N. P. 657; and see the precedents and notes, 3 Chitty on Pl. 4th ed. 1355 to 1390. See also ante, p. 167. note.


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 sufficient title against all the world; and cannot be impeached by any dormant claim whatsoever (17).

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 it 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 connexion 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 *absolutely antiquated as to be out of [*197] force, though the whole is certainly out of use: there being but a very few instances for more than a century past of prosecuting any real action for land by writ of entry, assise, 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.



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,39 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, statutestaple, 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 (1), is only liable to happen by a species of disseisin, or land for sixty years, yet if his entry is not tolled he may enter and bring any action of his own possession; and if his entry be con geable, and he enter, he may have an action of his own possession." 4 Co. 11. b. See notes ante, 178. 139.

(17) 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

(1) There are no such estates in New-York. As to the law of New-York on ejectment, see note 17, p. 207.

(39) See Hov. n. (39) at the end of the Vol. B. III

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