Front Page Titles (by Subject) PART VIII: PROPERTY (IN GENERAL) - Select Essays in Anglo-American Legal History, vol. 3
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PART VIII: PROPERTY (IN GENERAL) - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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PROPERTY (IN GENERAL)
[Other References on the Subject of this Part are as follows:
Folcland, by Paul Vinogradoff (English Historical Review, 1893, VIII, 1).
The Transfer of Land in Old English Law, by Paul Vinogradoff (Harvard Law Review, 1907, XX, 532-548).
Changes in the American Law of Real Property. Anon. (American Jurist, 1829, pp. 28-97).
Les fondations [charitable gifts] en Angleterre; étude de droit comparée, by Jean Escarra (Paris, 1907).
History of Land Tenure in Scotland and England, by R. Campbell (Law Quarterly Review, 1885-86, I, 175-183, 400-411, II, 166-176).
History of the Irish Land System, by W. O. Morris (Law Quarterly Review, 1887, III, 133-157).
Alienation of Estates Tail, by H. W. Elphinstone (Law Quarterly Review, 1890, VI, 280-288).
Short Studies in the Early Common Law; II, Rents-Charge, by W. G. Hammond (Green Bag, 1892, IV, 283-292).
Early English Land Tenures, by M. Kovalevsky (Law Quarterly Review, 1880, IV, 266-285).
The Seisin of Chattels, by F. W. Maitland (Law Quarterly Review, 1885, I, 324-341).
The Beatitude of Seisin, by F. W. Maitland (Law Quarterly Review, 1888, IV, 24-39, 286-299).
Possession for a Year and a Day, by F. W. Maitland (Law Quarterly Review, 1889, V, 253-264).
Feoffment and Livery of Incorporeal Hereditaments, by L. O. Pike (Law Quarterly Review, 1889, V, 29-43).
Origin of Rights of Common, by T. E. Scrutton (Law Quarterly Review, 1887, III, 373-398).
History of Legislation concerning Property in England, by J. E. R. de Villiers (London, 1901).
Changes of Real Property Law in the United States, by G. E. Beers (in Two Centuries of Growth of American Law, Yale Bi-Centenary Studies, New York, 1901).
Origin of the System of Recording Deeds in America, by J. H. Beale, Jr. (Green Bag, 1907, XIX, 335).]
THE DISSEISIN OF CHATTELS1
THE readers of “The Seisin of Chattels,” by Professor Maitland, in the “Law Quarterly Review” for July, 1885, were doubtless startled at the outset by the title of that admirable article. But all must have admitted at the end that the title was aptly chosen. The abundant illustrations of the learned author show conclusively that from the days of Glanvil almost to the time of Littleton, “seisin” and “possession” were synonymous terms, and were applied alike to chattels and land. In a word, seisin was not a purely feudal notion.
Is it possible, however, to justify the title of the present article? Is it also a mistake to regard disseisin as a peculiarity of feudalism? History seems to answer these questions in the affirmative. The word “disseisin,” it is true, was rarely used with reference to personalty. Only three illustrations of such use have been found,3 as against the multitude of allusions to seisin of chattels noted by Professor Maitland. In substance, however, the law of disseisin was common to both realty and personalty.
A disseisor of land, it is well known, gains by his tort an estate in fee simple. “If a squatter wrongfully incloses a bit of waste land and builds a hut on it, and lives there, he acquires an estate in fee simple in the land which he has inclosed. He is seised, and the owner of the waste is disseised. . . . He is not a mere tenant at will, nor for years, nor for life, nor in tail; but he has an estate in fee simple. He has seisin of the freehold to him and his heirs.”1 Compare with this the following, from Fitzherbert: “Note if one takes my goods, he is seised now of them as of his own goods, adjudged by the whole court;”2 or Finch’s definition: “Trespass in goods is the wrongful taking of them with pretence of title, and therefore altereth the propertie of those goods.”3 This altering of the property by a trespass is pointedly illustrated by a case from the “Book of Assizes.”4 The plaintiff brought a bill of trespass for carrying off his horse and killing it. “The defendant prayed judgment of the bill, since you have confessed the property to be in us at the time of the killing, and so your bill is repugnant; for by the tortious taking, the property was devested out of you and vested in us, and therefore we could not kill our own horse contra pacem.” The bill was adjudged bad. Furthermore, incredible as it may appear, a disseisin by theft vested the property in the stolen chattel in the thief. John v. Adam5 was a case of replevin in the detinet for sheep. Avowry that the sheep were stolen from the plaintiff by M., who was driving them through the defendant’s hundred; that M., to avoid arrest, fled to the church and abjured the realm, and so the defendant was seised by virtue of his franchise to have the goods of felons. Certain formal objections were taken to the avowry, to which Herle, C. J., answered: “Whatever his avowry be, you shall take nothing; for he has acknowledged that the property was once in you, and afterward in him who stole them; and now he affirms the property in himself, and therefore, although he cannot maintain the property in himself for the reason alleged, still you shall not have the sheep again, for he gives a mesne; namely, the felon in whom the property was.”1 The opinion of this distinguished judge is confirmed by numerous cases in which stolen goods were forfeited by the thief, under the rule of law that gave to the Crown the chattels of felons. The goods, having become by the theft the property of the felon, were forfeited as a matter of course with the rest of his chattels.
These examples are sufficient to bring out the analogy between the tortious taking of chattels and the wrongful ouster from land.2 But in order to appreciate fully the parallel between disseisin of chattels and dissesin of land, we must consider in some detail the position of the disseisor and disseisee in each case.3
The disseised owner of land loses, of course, with the res the power of present enjoyment. But this is not all. He retains, it is true, the right in rem; or, to use the common phrase, he has still a right of entry and a right of action. But by an inveterate rule of our law, a right of entry and a chose in action were strictly personal rights. Neither was assignable. It follows, then, that the disseisee cannot transfer the land. In other words, as long as the disseisin continues, the disseised owner is deprived of the two characteristic features of property,—he has neither the present enjoyment nor the power of alienation.
These conclusions are fully borne out by the authorities. “The common law was,” as we read in Plowden, “that he who was out of possession might not bargain, grant, or let his right or title; and if he had done it, it should have been void.”1 It was not until 1845 that by statute2 the interest of the disseisee of land became transferable. Similar statutes have been enacted in many of our States.3 In a few jurisdictions the same results have been obtained by judicial legislation.4 But in Alabama, Connecticut, Dakota, Florida, Georgia, Kentucky, Massachusetts, New York, North Carolina, Oklahoma, Rhode Island, and Tennessee, and presumably in Maryland and New Jersey, it is still the law that the grantee of a disseisee cannot maintain an action in his own name for the recovery of the land.5
A right of entry and action is now everywhere devisable. But until 1838 in England and 1836 in Massachusetts, a disseisee had nothing that he could dispose of by will.6 . . .
If we turn now from transfers by act of the party to transfers by operation of law, we find that in the one case of bankruptcy there was a true succession to the disseisee’s right to enter or sue. But this was, of course, a statutory transfer.7
There was also a succession sub modo in the case of death. The heir of the disseisee, so long as he continued the persona of the ancestor, stood in his place. But the succession to the right in rem was radically different from the inheritance of the res itself. If the heir inherited the land, he became the feudal owner of it, and therefore at his death it descended to his heir, unless otherwise disposed of by deed or will. On the other hand, if a right of entry or action came to the heir, he did not become the absolute owner of the right. He could not hold a chose in action as tenant in fee simple. The right was his only in his representative capacity. He might, of course, reduce the right in action to possession, and so become feudal owner of the land. But if he died without gaining possession, nothing passed to his heir as such. The latter must be also the heir of the disseisee, and so the new representative of his persona, in order to succeed to the right in rem.1
These two cases of death and bankruptcy were the only ones in which the disseisee’s right was assignable by involuntary transfer. There was, for example, no escheat to the lord, if the disseised tenant died without heirs, or was convicted of felony. This doctrine would seem to have been strictly feudal. Only that could escheat which was capable of being held by a feudal tenure. A chose in action could not be held by such a tenure. Only the land itself could be so held. But the land, after the disseisin, was held by the disseisor. So long as his line survived, there was no “defectus tenentis.” The death of the disseisee without heirs was, therefore, of no more interest to the lord than the death of any stranger.2
The lord was entitled to seize the land of his villein. But if the villein had been disseised before such seizure, the lord could not enter upon the land in the possession of the disseisor, except in the name of the villein, and, after a descent cast, could not enter at all.1 Nor had he any right to bring an action in the name of his villein.2
It is still the law in most of our States, as it was in England before 1833,3 that “if a man seised of land in fee be disseised of the same, and then take a wife and die without re-entering, she shall not have dower.”4
The husband of a woman who was disseised before the marriage may, of course, enter upon the disseisor in his wife’s name, or he may bring an action to recover the land in their joint names; but if the land is not recovered in the one way or the other before his wife’s death, he must suffer for his laches. For the old rule, which denied to the husband curtesy in his wife’s right of entry or action, has not lost its force on either side of the ocean.5 It was applied in New York, to the husband’s detriment, as recently as 1888.6
One more phase of the non-assignability of the disseisee’s right of action is shown by another recent case. It was decided in Rhode Island, in 1879, in accordance with a decision by the King’s Bench, in the time of James I.,7 that a disseised owner of land had nothing that could be taken on execution.8
The position of the disseisor of land is, in most respects, the direct opposite of that of the disseisee. The strength of each is the weakness of the other. The right of the disseisee to recover implies the liability of the disseisor, or his transferee, to lose the land. But so long as the disseisin continues, the disseisor, or his transferee, possesses all the rights incident to the ownership of an estate in fee simple. He has the jus habendi and the jus disponendi. If he is dispossessed by a stranger, he can recover possession by entry or action.1 If he wishes to transfer his estate in whole or in part, he may freely do so. He may sell the land,2 or devise it,3 or lease it.4 His interest is subject also to the rules of involuntary transfer. Accordingly, it may descend to his heir,5 escheat to his lord,6 or be taken on execution,7 and would doubtless pass to his assignee in bankruptcy. The husband of the disseisor has curtesy,8 and the wife dower;9 and a disseisin by a villein must have enured to the benefit of his lord at the latter’s election. [The disseisor may insure the land.10 He may grant a rent charge out of it.11 He has the right of common which his disseisee had.12 He may convey the land upon trust.13 He may transfer it to A for life with remainder to B, and the estate of A and B will be the same, as if the grantor had the absolute fee simple, as to every one except the disseisee, and as to him also after the Statute of Limitations has run.14 If the disseisor creates chattels by severance from his fee simple, the title to these chattels is in him so fully that, so long as the disseisin continues, the disseisee cannot maintain trover, detinue or replevin against him.1 Nor an action for money had and received for the proceeds of the sale of the chattels.2 But these actions are given to the disseisor against the disseisee, if the latter carries off the severed chattels before regaining the seisin.]3
The legal effects of the disseisin of chattels are most vividly seen by looking at the remedies for a wrongful taking. The right of recaption was allowed only flagrante delicto. This meant in Britton’s time the day of the taking. If the owner retook his goods afterwards, he forfeited them for his “usurpation.”4 If the taking was felonious,5 the despoiled owner might bring an appeal of larceny, and, by complying with certain conditions,1 obtain restitution of the stolen chattel. But such was the rigor and hazard of these conditions, that from the middle of the thirteenth century the appeal was largely superseded by the new action of trespass.2 If the taking was not criminal, trespass was for generations the only remedy.3
Trespass, however, was a purely personal action; it sounded only in damages. The wrongful taking of chattels was, therefore, a more effectual disseisin than the ouster from land. The dispossessed owner of land, as we have seen, could always recover possession by an action. Though deprived of the res, he still had a right in rem. The disseisor acquired only a defeasible estate. One whose chattel had been taken from him, on the other hand, having no means of recovering it by action, not only lost the res, but had no right in rem. The disseisor gained by his tort both the possession and the right of possession; in a word, the absolute property in the chattel taken.
What became of the chattel afterwards, therefore, was no concern of the victim of the tort. Accordingly, one need not be surprised at the following charge given by Brian, C. J., and his companions to a jury in 1486: “If one takes my horse vi et armis and gives it to S, or S takes it with force and arms from him who took it from me, in this case S is not a trespasser to me, nor shall I have trespass against him for the horse, because the possession was out of me by the first taking; then he was not a trespasser to me, and if the truth be so, find the defendant not guilty.”1 Brooke adds this gloss, “For the first offender has gained the property by the tort.”2
The complete divestiture of the owner’s property in a chattel by a disseisin explains also a distinction taken in the Year Books, which has proved a stumbling-block to commentators to the present day: “Note by Fineux, C. J., and Tremayle, C. J. If I bail goods to a man and he gives them to a stranger or sells them, if the stranger takes them without livery he is a trespasser, and I shall have a writ of trespass against him; for by the gift or sale the property was not changed but by the taking. But if he delivered them to the vendee or donee, then I shall not have trespass.”3 At this time, although anciently the rule was otherwise, the possession of the bailee at will was treated as the possession of the bailor also. In the first case, therefore, where there was no delivery by the bailee, the stranger by taking the goods disseised the bailor and so was liable to the latter in trespass. But in the other case, where the bailee delivered the goods sold, he was the disseisor. By a single act he gained the absolute property in the goods and transferred it to the vendee, who was thus as fully beyond the reach of the disseisee as the vendee of the disseising trespasser in the earlier case before Brian, C. J. The peculiarity in the case of the bailment lies in the form of the disseisin. But the asportation of a chattel or the ouster from land, although the commonest, were not the only modes of disseisin. Any physical dealing with the chattel under an assumption of dominion, or, to borrow a modern word, any conversion, was a disseisin. The wrongful delivery of the goods by the bailee as vendor corresponds perfectly to a tortious feoffment by a termor. Such a feoffment was a disseisin of the landlord; and the feoffor, not the feoffee, was the disseisor.1 The act of feoffment was at once an acquisition of a tortious fee and a conveyance.2
To-day, as every one knows, neither a trespasser, nor one taking or buying from him, nor the vendee of a bailee, either with or without delivery by the latter, acquires the absolute property in the chattel taken or bailed. The disseisee of goods, as well as the disseisee of land, has a right in rem. The process by which the right in personam has been transformed into a real right may be traced in the expansion of the writs of replevin and detinue, and is sufficiently curious to warrant a slight digression.
Replevin was originally confined to cases of wrongful distress. It was also the only action in those cases, trespass not being admissible.3 A distrainor, unlike a disseisor, did not take the chattel under a claim of absolute dominion, but only as a security. He had not even so much possession as a bailee. If the distress was carried off by a stranger, the distrainor could not maintain trespass,4 in which action the goods were always laid as the goods of the plaintiff. That action belonged to the distrainee, as the one disseised. The distrainor must use either the writ of rescous or de parco fracto, in which the property in the distress was either laid in the distrainee, or not laid in any one. Trespass and replevin were thus fundamentally distinct and mutually exclusive actions. The one was brought against a disseisor; the other against a custodian. The former was a personal action, the latter a real action. Trespass presupposed the property in the defendant, whereas replevin assumed the property in the plaintiff, at the time of action brought.5 If, therefore, when the sheriff came to replevy goods, as if distrained, the taker claimed them as his own, the sheriff was powerless. The writ directed him to take the goods of the plaintiff, detained by the defendant. But the goods were no longer the plaintiff’s; the defendant by his claim had disseised the plaintiff and made them his own. The plaintiff must abandon his action of replevin as misconceived, and proceed against the defendant, as a disseisor, by appeal of felony, or trespass.1
Even if the defendant allowed the sheriff to replevy the goods, he might afterwards in court stop the action by a mere assertion, without proof, of ownership. The goods were returned to him as goods wrongfully replevied, and the plaintiff, as before, was driven to his appeal or trespass.2
The law was so far changed by the judges in 1331, that if the defendant allowed the sheriff to take the goods, he could not afterwards abate the action by a claim of title.3
But it was still possible for the defendant to claim property before the sheriff and so arrest further action by him. To meet this difficulty, the writ de proprietate probanda was devised, probably in the reign of Edward III. By this writ the sheriff was directed to replevy the goods, notwithstanding the defendant’s claim, if by an inquest of office the property was found in the plaintiff’s favor. This finding for the plaintiff had no further effect than to justify the sheriff in replevying the goods, and thus to permit the plaintiff to go on with the replevin action just as he would have done had the defendant allowed the sheriff to take the goods.1 Replevin thus became theoretically concurrent with trespass.2 A disseisor could not thereafter gain the absolute property by his tort. A writ in trespass for carrying off and killing the plaintiff’s horse was no longer assailable for repugnancy. In 1440, to a count in trespass for taking a horse, the defendant pleaded that he took it damage feasant to his grain, which the plaintiff had carried off. It was objected that the plea was bad, as showing on its face that the grain was the plaintiff’s by the taking. But the court allowed the plea on the ground that the defendant might have brought a replevin for the grain which proved the property in him at his election.3 It became a familiar notion that the dispossessed owner might affirm the property in himself by bringing replevin, or disaffirm it by suing in trespass. In other words, there was a disseisin by election in personalty as well as in realty.
4 The disseisee’s right in rem, however, was still a qualified right; for replevin was never allowed in England against a vendee or bailee of a trespasser, nor against a second trespasser.1 It was only by the later extension of the action of detinue that a disseisee finally acquired a perfect right in rem. Detinue, although its object was the recovery of a specific chattel, was originally an action ex contractu. It was allowed only against a bailee or against a vendor, who after the sale and before delivery was in much the same position as a bailee. So essential was the element of privity at first, that in England, as upon the Continent, during the life of a bailee, he only was liable in detinue even though the chattel, either with or without the bailee’s consent, were in the possession of a third person.2 In counting against a possessor after the bailee’s death, the bailor must connect the defendant’s possession with that of the bailee, as by showing that the possessor was the widow, heir, or executor of the bailee, or otherwise in a certain privity with him.3 Afterwards, a bailor was permitted to charge a sub-bailee in detinue in the lifetime of the bailee.4 This action seems to have been given to a loser as early as the reign of Edward III.5 But it was a long time before the averment of the plaintiff’s loss of his goods became a fiction. As late as 1495, the conservative Brian, C. J., said, “He from whom goods are taken cannot have detinue.”6 His companion, Vavasor, J., it is true, expressed a contrary opinion in the same case, as did Anderson, C. J., in Russell v. Pratt7 (1579), and the court in Day v. Bisbitch8 (1586). But it was not until 1600 that Brian’s opinion can be said to have been finally abandoned. In that year the comparatively modern action of trover, which had already nearly supplanted detinue sur trover, was allowed against a trespasser; although even then two judges dissented, because by the taking “the property and possession is divested out of the plaintiff.”1 As the averments of losing and finding were now fictions, trover was maintainable by the disseisee against any possessor.
The disseisee’s right to maintain replevin and detinue (or trover) being thus established, we have now to inquire how far the rules which were found to govern in the disseisin of land apply to the disseisin of goods.
So long as the adverse possession continues, the dispossessed owner of the chattel has, manifestly, no power of present enjoyment. Has he lost also the power of alienation? His right in rem, if analyzed, means a right to recover possession by recaption or action. But these rights are as personal in their nature as the corresponding rights of entry or action in the case of land. It follows, then, that they were not transferable. And such was the law.
In 1462, Danby, C. J., and Needham, J., agreed, it is true, that a bailor whose goods had been wrongfully taken from the bailee might give them to the trespasser.2 This was against the opinion of Littleton, counsel for the plaintiff, who said, “I think it is a void gift; for when S. took them from me [bailee] the property was in him and out of you [bailor]; how, then, could you give them to him?” “Et bene dixit,” is Brooke’s comment.3 The view of the two judges was taken by Vavasor, J., also, in a like case in 1495. But one of the greatest of English judges, Brian, C. J., expressed himself clearly to the contrary: “The gift is void. . . . In my opinion the property is devested by the taking, and then he had only a right of property; and so the property and right of property are not all one. Then, if he has only a right, this gift is void; for one cannot give his right.”4 Three years later he reaffirmed his opinion in the same case: “The gift is void to him who had the goods as much as it would be to a stranger, and I think a gift to a stranger is void in such a case.”5
In Russell v. Pratt1 (1579) there is this dictum by Manwood, C. B.: “If my goods be taken from me, I cannot give them to a stranger; but if my goods come to another by trover, I may give them over to another.” The law on this point is thus summarized in “Shepard’s Touchstone,” the first edition of which was published in 1648: “Things in action are not grantable over to strangers but in special cases. . . . And, therefore, if a man have disseised me of my land or taken away my goods, I may not grant over this land or these goods until I have seisin of them again. . . . And if a man take goods from me, or from another man in whose hands they are; or I buy goods of another man and suffer them in his possession, and a stranger takes them from him, it seems, in these cases, I may give the goods to the trespasser, because the property of them is still in me [i. e., his acceptance of them is an admission of property in the donor; but they cannot be given to a stranger, since without such an admission the party has merely a right of action or resumption by recaption].”2 The bracketed part of this extract was added in 1820 by Preston, the learned editor of the sixth edition. No later allusion to this subject has been found in the English books; but there are several American decisions which might have been given by Brian himself. In McGoon v. Ankeny3 (1850), for instance, the ratio decidendi was thus expressed by the court: “While the property was thus held adversely, the real owner had but a right of action against the person in possession, which was not the subject of legal transfer.” And the case was followed in Illinois in 1887.1 Again we read, in Overton v. Williston2 (1858): “If one wrongfully converts the property of another to his own use, and continues in adverse enjoyment of it, the owner cannot sell to a third person, so as to give his vendee a right of action in his own name.”
Not much is to be found in the books as to one’s power to dispose, by will, of chattels adversely held. It is plain, however, that before 1330 the disseisee had nothing that he could bequeath. At that time the only remedies for a wrongful taking were trespass and the appeal of felony, both of which actions died with the person wronged.3 A statute in that year gave to the executor an action to recover damages against a trespasser in like manner as the testator might have recovered if living.4 The executor of a distrainee or bailor could maintain replevin or detinue, as the testator had the property at his death. After these actions were allowed against a trespasser, since the right to maintain them proved property in the dispossessed owner at his election, his executor could use them as well as trespass against a trespasser.5 It was, however, only a right of action that the executor acquired in such a case. The chattels themselves passed to the executor only when the testator died in possession. An executor counting on his title regularly stated that the testator died seised.6 In abridging one case, Fitzherbert adds, “And so see that dying seised of goods is material.”7 Finch’s statement also is explicit: “All one’s own chattels, real . . . or personal, but not those he is only to recover damages for, as in goods taken from him, or to be accounted for, . . . may be given away or devised by his testament.”8
The analogy between chattels and lands in regard to the assignability of the disseisee’s interest holds good also, with one exception, in the case of involuntary transfers. Thus the bankrupt’s right to recover possession of goods wrongfully taken passes by a true succession to the statutory assignee.1 But it is only a chose in action that passes, not the goods themselves.2
In case of death, the administrator represents the persona of the intestate, as the heir stood in the place of the ancestor.
The one exception to the parallel between land and goods is the case where the dispossessed owner of a chattel died intestate, leaving no next of kin, or was convicted of felony or outlawed. His right of action vested in the Crown, in the first case as bonum vacans, in the others by forfeiture. The king, unlike a feudal lord claiming by escheat, was a true successor. He was also entitled to choses in action as well as to choses in possession; for the sovereign, whether as assignor or assignee, was an exception to the rule that choses in action are not assignable, unless the claim was for a battery or other personal injury. In 1335 an outlaw who had been pardoned brought an action of trespass for a battery committed before the outlawry. As a pardon did not carry with it a restoration of anything forfeited, it was objected that the claim was extinguished. But the court gave judgment for the plaintiff, Shard (Sharshull, C. J.?) saying, “If this were an action for goods and chattels carried off . . . peradventure it would not be entertained; because if goods had been in the outlaw’s possession, the king would have them, and for the like reason, the king should have his action against those who wrongfully took them. But here the wrong would go unpunished if the action were not allowed.”3
The lord of a villein was entitled to the latter’s chattels if he elected to claim them. But he must, at his peril, make his election before the villein was disseised. The villein’s chose in action against the disseisor was not assignable.1
There is nothing in the law of personalty corresponding to dower in land. But the husband’s right to his wife’s chattels may be compared to his right of curtesy in her land. As was seen, the husband of a woman who was not seised of the land during the marriage was not entitled to curtesy. So a man who married a disseisee of chattels acquired no interest therein, unless during the marriage he reduced her right in rem to possession by recaption or by action in their joint names. Her right of action, in other words, was no more assignable than that of the villein. Fitzherbert treated the two cases as illustrations of the same principle.2 The doctrine was clearly stated by the court in Wan v. Lake.3 “If the wife had been dispossessed [of the term] before marriage, and no recovery during the coverture, the representative of the wife should have the term and not the husband, because it is then a chose in action.” The rule has been applied, in a number of cases, to chattels personal.4
Finally, the disseisee of a chattel, like the disseisee of land, has at common law nothing that can be taken on execution. In a valuable book published in 1888 we read: “When personal property is held adversely to its owner, his interest therein is a mere chose in action and cannot be reached by execution, unless by the provisions of some statute.”1
The position of the disseisor of a chattel was the converse of that of the disseisee. The converter, like the disseisor of land, had the power of present enjoyment and the power of alienation. If dispossessed by a stranger he might proceed against him by trespass, replevin, detinue, or trover.2 He could sell the chattel3 or bail it.4 It would go by will to the executor or be cast by descent upon the administrator;5 was forfeited to the Crown for felony;6 and was subject to execution. A conversion by the wife, unless the property was destroyed, was necessarily to the use of the husband,7 as a disseisin by a villein must have profited his lord if the latter claimed it.
We have thus far considered only the resemblances between land and chattels in the matter of seisin and disseisin. But our comparison would be incomplete if attention were not called to one point of difference. One in possession of a horse or cow was seised of the chattel itself, without more. There could, therefore, be but a single seisin of it at any given moment. If, for instance, a chattel was loaned for a term, the bailee alone was seised of it. He, and he only, could be disseised of it. To this day the bailor for a term cannot maintain trespass or trover against a stranger for a disseisin of the bailee. But, on the other hand, there was no such thing as seisin of land simpliciter. The seisin was always qualified by the mode of possession. One was seised either ut de feodo vel libero tenemento, or else ut de termino. Accordingly, wherever there was a term there were necessarily two distinct seisins in one and the same land, at one and the same time. Both of these seisins were lost by the tortious entry of a stranger upon the land under a claim of right, and the disseisor was exposed to two actions,—the assize of novel disseisin by the freeholder, and the ejectio firmæ by the termor. This difference between land and chattels is obviously artificial and of feudal origin.
But if this historical sketch has been accurately drawn, the disseisin of land finds its almost perfect counterpart in the conversion of chattels, notwithstanding the difference here indicated. It is still true that the doctrine of disseisin belongs not to feudalism alone, but to the general law of property. In a subsequent paper, the writer will endeavor to show that this doctrine is not a mere episode in English legal history, but that it is a living principle, founded in the nature of things, and of great practical value in the solution of many important questions.
THE NATURE OF OWNERSHIP
In the foregoing pages the writer has endeavored to show, in the light of history, that disseisin was not a feudal doctrine, but a principle of property in general, personal as well as real. Conversion of chattels, we found, differed from disseisin of land in name, but not in substance. In each case the effect of the tort was to transfer the res to the wrongdoer, and to cut down the interest of the party wronged to a mere right to recover the res. Or, as the sagacious Brian, C. J., put it, the one had the property, the other only the right of property.
The disseisor, whether of land or chattels, was said to have the property, for these reasons. So long as the disseisin continued he had the power of present enjoyment of the res; his interest, although liable to be determined at any moment by the disseisee, was as fully protected against all other assailants as the interest of an absolute owner; and, finally, his interest was freely transferable, both by his own act and by operation of law, although, of course, by reason of its precarious nature, its exchangeable value was small. The disseisee, on the other hand, was said to have a mere right of property, because, although he was entitled to recover the res by self-redress, or by action at law, this was his only right. The disseisin deprived him of the two conspicuous marks of perfect ownership. He could neither enjoy the land or chattel in specie, nor bring either of them to market. The interest of the disseisor might have little exchangeable value; but that of the disseisee had none. For, as we have seen, this interest, being a chose in action, was not transferable at common law, either by conveyance inter vivos, or by will, nor even, as a rule, by operation of law.
Are these doctrines of the old common law accidents of English legal history, or are they founded in the nature of things? Do they chiefly concern the legal antiquarian, or have they also a practical bearing upon the litigation of to-day? To answer these questions, it will be necessary, in the first place, to analyze the idea of “ownership” or “property,” in the hope of working out a definition that will bear the test of application to concrete cases; and, secondly, an attempt must be made to explain the reason of the rule that choses in action are not assignable.
It is customary to speak of one as owner of a thing, although he has ceased to possess it for a time, either by his own act, as in the case of a lease or bailment, or without his consent, as in the case of a loss or disseisin. And yet every one would admit that the power of present enjoyment is one of the attributes of perfect ownership. It is evident, therefore, that it is only by an inaccurate, or, at least, elliptical use of language, that a landlord, bailor, loser, or disseisee can be called a true owner. The potential is treated as if actually existent. On the other hand, no one will affirm that the tenant, bailee, finder, or disseisor can be properly described as owner. For although they all have the power of present enjoyment, and, consequently, the power of transfer, their interest is either of limited duration, or altogether precarious. It would seem to follow, therefore, that wherever there is a lease, bailment, loss, or disseisin of a res, no one can be said to be the full owner of it. And this, it is submitted, is the fact. Only he in whom the power to enjoy and the unqualified right to enjoy concur can be called an owner in the full and strict sense of the term. The correctness of this conclusion is confirmed by the opinion of Blackstone, expressed with his wonted felicity. After speaking of the union in one person of the possession, the right of possession, and the right of property, he adds: “In which union consists a complete title to lands, tenements, and hereditaments. For it is an ancient maxim of the law, that no title is completely good, unless the right of possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit. And when to this double right the actual possession is also united, there is, according to the expression of Fleta, juris et seisinæ conjunctio, then, and then only, is the title completely legal.”1
A true property may, therefore, be shortly defined as possession coupled with the unlimited right of possession. If these two elements are vested in different persons there is a divided ownership. Let us test these results by considering some of the modes by which a perfect title may be acquired by one who has neither, or only one of these two elements of complete ownership.
The typical case of title by original acquisition is title by occupation. For the occupier of a res nullius does acquire a perfect title and not merely possession. The fisherman who catches a fish out of the sea, or the sportsman who bags a bird, is at once absolute owner. He has possession with the unqualified right of possession, since there is no one in rerum natura who can rightfully interfere with him. It is on the same principle that a stranger who occupies land on the death of a tenant pur auter vie is owner of the residue of the life estate. For no one during the life of cestui que vie can legally disturb him.
A derivative title is commonly acquired from an owner by purchase or descent. The title in such cases is said to pass by transfer. For all practical purposes this is a just expression. But if the transaction be closely scrutinized, the physical res is the only thing transferred. The seller’s right of possession, being a relation between himself and the res, is purely personal to him, and cannot, in the nature of things, be transferred to another. The purchaser may and does acquire a similar and coextensive right of possession, but not the same right that the seller had. What really takes place is this: the seller transfers the res and abandons or extinguishes his right of possession. The buyer’s possession is thus unqualified by the existence of any right of possession in another, and he, like the occupant, and for the same reason, becomes absolute owner.
There is one curious case of derivative title which may be thought to confirm in a somewhat striking manner the accuracy of the definition here suggested. If a chattel, real or personal, was granted or bequeathed to one for life, the grantee or legatee became not only tenant for life, but absolute owner of it. In other words, there could be no reversion or remainder after a life estate in a chattel. Possibly others may have been as much perplexed as the present writer in seeking for the reason of this rule. The explanation is, however, simple. The common-law procedure, established when such limitations of chattels were either unknown or extremely rare, gave the reversioner and remainderman no remedy against the life tenant. There was no action for chattels corresponding to the formedon in reverter and remainder for land. Detinue would, of course, lie in general on a contract of bailment; but the contract of bailment, like a contract for the payment of money, must be conceivably performable by the obligor himself, and therefore before his death; he could not create a duty binding only his executor.1 Consequently, there being no right of action against him, the life tenant’s power of enjoyment was unrestricted. His ownership was necessarily absolute.2
Another rule, now obsolete, admits of a similar explanation. In the fourteenth century, as we have seen, a trespasser acquired the absolute property in the chattel wrongfully taken. The common law gave the dispossessed owner no remedy for its recovery. There was no assise of novel disseisin for chattels. Replevin was restricted to cases of wrongful distress. Detinue, originally founded upon a bailment, and afterwards extended to cases of losing and finding, was not allowed against a trespasser until about 1600. Trespass was therefore the owner’s only action; but Trespass sounded in damages. The trespasser’s possession being inviolable, he was necessarily owner.
A derivative title may be acquired by an equitable estoppel. If the owner of land permits another to sell and convey it, as if it were the seller’s own, the purchaser gets at law only the seisin. The original owner’s title, that is, his right to recover the seisin, is not otherwise affected by the conveyance. But a court of equity will grant a permanent injunction against the owner’s assertion of his common-law right, and thereby practically nullify it, so that the purchaser’s title is substantially perfect.
Where the two elements of ownership are severed, as by a disseisin, and vested in two persons, either may conceivably make his defective title perfect; but the mode of accomplishing this is different in the two cases. The disseisee may regain his lost possession by entry or recaption, by action at law, or by a voluntary surrender on the part of the disseisor. In each of these ways his title becomes complete, and is the result of a transfer, voluntary or involuntary, of the physical res.
The perfection of the title of the disseisor, on the other hand, is not accomplished through a transfer to him of the disseisee’s right to recover possession. In the very nature of things, this right of the dispossessed owner cannot be conveyed to the wrongful possessor. It would be absurd to speak of such possessor acquiring a right to recover possession from himself, which would be the necessary consequence of the supposed transfer. But the disseisee’s right, although not transferable, may, nevertheless, be extinguished. And since, by its extinguishment, the possession of the disseisor becomes legally unassailable, the latter’s ownership is thereby complete.
The extinguishment may come about in divers ways:—
(1.) By a release. “Releases of this kind must be made either to the disseisor, his feoffee, or his heir. In all these cases the possession is in the releasee; the right in the releasor and the uniting the right to the possession completes the title of the releasee.”1 In feoffments and grants it was a rule that the word “heirs” was essential to the creation of an estate of inheritance. But, as Coke tells us, “When a bare right is released, as when the disseisee releases to the disseisor all his right, he need not speake of his heires.”2 This distinction would seem to be due to the fact that a release operates, not as a true conveyance, but by way of extinguishment.
(2.) By marriage. As we have seen in the preceding article,3 if a woman, who was dispossessed of her land or chattels, married, her right of action against the wrong-doer, not being assignable, did not pass to her husband. If, therefore, she died before possession was regained, the husband had no curtesy in the land, and the right to recover the chattel passed to her representative. But if the dispossessed woman can be imagined to marry the dispossessor, it seems clear, although no authority has been found,4 that in that highly improbable case the marriage, by suspending and consequently extinguishing her right of action, would give the husband a fee simple in the land and absolute ownership of the chattel.
(3). By death. If a man were disseised by his eldest son and died, the son and heir would be complete owner; for death would have removed the only person in the world who could legally assail his possession. The law of trusts furnishes another illustration. The right of a cestui que trust, it is true, is not a right in rem, but a right in personam. Nevertheless it relates to a specific res, and so long as it exists, practically deprives the trustee of the benefits of ownership. If this right of the cestui que trust could be annihilated, the trustee would be owner in substance as well as in name. This annihilation occurred in England, if the cestui que trust of land died intestate and without heirs, inasmuch as a trust of land did not escheat to the crown or other feudal lord.1 The trust was said to sink for the benefit of the trustee, and for the obvious reason that no one could call him to account.
(4.) By lapse of time. Title by prescription was an important chapter in the Roman law. Continuous possession, in good faith, although without right, gave the possessor, after a given time, a perfect title. The civilians, as is shown by the requisite of bona fides, looked at the matter chiefly from the side of the adverse possessor. In England the point of view is different. English lawyers regard not the merit of the possessor, but the demerit of the one out of possession. The statutes of limitation provide, in terms, not that the adverse possessor shall acquire title, but that one who neglects for a given time to assert his right shall not thereafter enforce it. Nevertheless, the question of bona fides apart, there is no essential difference between the two systems on the point under discussion. In the English law, no less than in the Roman law, title is gained by prescriptive acquisition.2 As a matter of legal reasoning this seems clear. For, as already pointed out, the only imperfection in the disseisor’s title is the disseisee’s right to recover possession. When the period of limitation has run, the statute, by forbidding the exercise of the right, virtually annihilates it, and the imperfect title must become perfect.
This conclusion is abundantly supported by authority from Bracton’s time down: “Longa enim possessio . . . parit jus possidendi et tollit actionem vero domino petenti, quandoque unam, quandoque aliam, quandoque omnem . . . Sic enim . . . acquiritur possessio et liberum tenementum sine titulo et traditione, per patientiam et negligentiam veri domini.”1
Blackstone is even more explicit: “Such actual possession is prima facie evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right by degrees, ripen into a perfect and indefeasible title.”2 Lord Mansfield may also be cited: “Twenty years’ adverse possession is a positive title to the defendant; it is not a bar to the action or remedy of the plaintiff only, but takes away his right of possession.”3
Sir Thomas Plummer, M. R., has expressed himself to the same effect as to equitable interests: “If the negligent owner has forever forfeited by his laches his right to any remedy to recover, he has in effect lost his title forever. The defendant keeps possession without the possibility of being ever disturbed by any one. The loss of the former owner is necessarily his gain; it is more, he gains a positive title under the statute at law, and by analogy in equity.”4
There are, to be sure, occasional dicta to the effect that the statute of James I. only barred the remedy without extinguishing the right, and that the right which would support a writ of right or other droitural action never died. An immortal right to bring an eternally prohibited action is a metaphysical subtlety that the present writer cannot pretend to understand.1 Fortunately these dicta have had no other effect than to bring some unnecessary confusion of ideas into this subject. The logic of facts has proved irresistible in the decision of concrete cases. The courts have uniformly held that a title gained by lapse of time is not to be distinguished from a title acquired by grant.2 Thus, if the prescriptive owner desires to transfer his title, he must observe the usual formalities of a conveyance; he cannot revest the title in the disseisee by disclaiming the benefit of the statute.3 His title is so perfect that a court of equity will compel its acceptance by a purchaser.1 A repeal of the statute will not affect his title.2 If dispossessed by the disseisee after the statute has run, he may enforce his right of entry or action against him as he might against any other intruder.3 He may even maintain a bill in equity to remove the cloud upon his title, created by the documentary title of the original owner.1 [If sued by the disseisee he may plead in denial of the plaintiff’s title.2 ] The English cases cited in support of these propositions, it may be urged, were decided under St. 3 and 4 Wm. IV. c. 27, the 34th section of which expressly extinguishes the title of the original owner at the end of the time limited. But inasmuch as the American cases cited were decided under statutes substantially like St. 21 James I. c. 16, which contains no allusion to any extinguishment of title, the 34th section referred to may fairly be regarded as pure surplusage.
The conclusions reached in regard to land apply with equal force to chattels. The vice in the converter’s title is the dispossessed owner’s right to recover the chattel by recaption or action. The bar of the statute operating as a perpetual injunction against the enforcement of the right of action virtually destroys that right; and the policy of the law will not permit the dispossessed owner’s right to recover by his own act to survive the extinguishment of his right to recover by legal process.3 The vice being thus removed, the converter’s title is unimpeachable; and it is as true of chattels as of land that a prescriptive title is as effective for all purposes as a title by grant. Accordingly, the adverse possessor cannot restore the title to the original owner by waiving the benefit of the statute.1 His title is not affected by a repeal of the statute.2 If dispossessed by the original owner, he may maintain Detinue or Replevin against the latter, as he might against any stranger.3 [He may have an injunction restraining the removal of the chattel by the original owner.4 ] A title gained by lapse of time in one State is good everywhere.5 If insolvent, he cannot surrender the chattel to the original owner.6 If sued by the original owner, he may plead in denial of the plaintiff’s title.1
In the cases thus far considered the land or chattel has been assumed to continue in the possession of the disseisor or converter until the bar of the statute was complete. But before that time the wrong-doer may have parted with the res by a sale or other transfer, or he may have been, in turn, deprived of it by a second wrong-doer.
If the thing has passed to the new possessor by a sale, the change of possession will produce, so far as the statute of limitations is concerned, only this difference: the title will vest at the end of the period of limitation in the new possessor, instead of the original disseisor or converter. Let us suppose, for example, that B. disseises A., occupies for ten years, and then conveys to C. If the statutory period be assumed to be twenty years, B.’s title at the time of the transfer is good against every one except A., but is limited by the latter’s right to recover possession at any time during the ensuing ten years. B.’s title, thus qualified, passes to C. At the end of the second ten years the qualification vanishes, and C. is complete owner. This, it is believed, is the rationale of the oft-repeated rule that the times of successive adverse holders, standing in privity with each other, may be tacked together to make up the period of limitation. In regard to land, this rule of tacking is all but universal.2
The decisions in the case of chattels are few. As a matter of principle, it is submitted this rule of tacking is as applicable to chattels as to land.1 A denial of the right to tack would, furthermore, lead to this result. If a converter were to sell the chattel, five years after its conversion, to one ignorant of the seller’s tort, the dispossessed owner’s right to recover the chattel from the purchaser would continue five years longer than his right to recover from the converter would have lasted, if there had been no sale. In other words, an innocent purchaser from a wrong-doer would be in a worse position than the wrong-doer himself,—a conclusion as shocking in point of justice as it would be anomalous in law.
It remains to consider the operation of the statute when the disseisor or converter has been, in turn, dispossessed by a wrong-doer. A change of possession accomplished in this mode has no more effect upon the right of the original owner than a change of possession by means of a transfer. But the rights and relations of the two successive adverse possessors are fundamentally different in the two cases. Let us suppose, as before, that B. disseises A., and occupies for ten years, and then, instead of selling to C., is disseised by C., who occupies for another ten years. At the moment of the second disseisin B.’s possession is qualified by A.’s right to recover the res at any time during the next ten years. After the disseisin C.’s possession would, of course, be subject to the same qualification. But B. had as against the rest of the world the two elements of perfect ownership,—possession and the unlimited right of possession. C. by disseising B. severs these two elements of B.’s title, good against every one but A., in the same way that B. by his tort had previously divided A.’s ownership, good against every one without exception. Just as by the original disseisin B. acquired the res subject to A.’s right of entry or action for twenty years, so by the second disseisin C. acquires the res subject to B.’s right of entry or action for an equal period. There would be, therefore, two defects in C.’s title; namely, A.’s right to recover the res for ten years, and B.’s right to recover it for twenty years from the time of the second disseisin. If A. fails to assert his claim during his ten years, his right is gone forever. One of the defects of C.’s title is blotted out. He becomes owner against every one but B. He may, accordingly, at any time thereafter defend successfully an action brought by A., or if forcibly dispossessed by A., he may recover the res from him by entry or action as he might against any other dispossessor, B. alone excepted. In other words, C., although a disseisor, and therefore not in privity with B., may tack the time of B.’s adverse possession to his own to make out the statutory period against A. This tacking is allowed in England, Canada, and in several of our States.1 There are, however, some decisions and a widespread opinion to the contrary in this country.2 But this opinion, with all deference, must be deemed erroneous. The laches of the original owner, who remains continuously dispossessed throughout the statutory period, is the same, and should be attended with the same consequences to him, whether the adverse possession be held continuously by one or several persons, and whether subsequent possessors do or do not stand in privity with their predecessors. If, indeed, the adverse possession is not continuous, if, for instance, B., after disseising A., abandons the land, leaving the possession vacant, and C. subsequently enters without right upon this vacant possession, he cannot, of course, tack his time to B.’s.1 Upon B.’s abandonment of the land the disseisin comes to an end. In legal contemplation, A.’s possession revives.2 Having the right to possess, and no one else having actual possession, he is in a position analogous to that of an heir, or conusee of a fine before entry, and like them has a seisin in law. C.’s disseisin has, therefore, the same effect as if A. had never been disseised by B., and A.’s right of entry or action must continue until C. himself, or C. and his successors, have held adversely for twenty years. If the distinction here suggested between successive disseisins with continuous adverse possession, and successive disseisins without continuous adverse possession, had been kept in mind, a different result, it is believed, would have been reached in the American cases.3
If the conclusions here advocated are true in regard to land, they would seem to be equally valid where there is a continuous adverse possession of chattels by successive holders, although there is no privity between them. But no decisions have been discovered upon this point.1
(5.) By judgment. One who has been wrongfully dispossessed of a chattel has the option of suing the wrong-doer in Replevin, Detinue, Trover, or Trespass. A judgment in Replevin enables him to keep the chattels already replevied and delivered to him by the sheriff, and a judgment in Detinue establishes his right to recover the chattel in specie,2 or, that being impracticable, its value. A judgment in Trespass or Trover, on the other hand, is for the recovery of the value only, as damages. Inasmuch as a defendant ought not to be twice vexed for a single wrong, a judgment in any one of these forms of action is not only a merger of the right to resort to that one, but is also a bar against the others.3 Accordingly, a judgment in Trespass or Trover against a sole wrong-doer who, at the time of judgment recovered, is still in possession of the chattel operates like the statute of limitations, and annihilates the dispossessed owner’s right to recover the chattel. The converter’s possession being thus set free from adverse claims, changes into ownership.4
If the change of possession is before judgment, there is a difference. Let us suppose, for instance, that B. converts the chattel of A., and, before judgment recovered against him in Trespass or Trover, sells it to C., or is in turn dispossessed by C. C., the new possessor, will hold the chattel, as B. held it, subject to A.’s right to recover it. The change of possession simply enlarges the scope of A.’s remedies; for his new rights against C. do not destroy his old right to sue B. in Trespass or Trover. Nor will an unsatisfied judgment against B. in either of these actions affect his right to recover the chattel from C.1 [Or the proceeds of its sale in an action of assumpsit.2 ] It is no longer a question of double vexation to one defendant for a single wrong. Not until the judgment against B. is satisfied can C. use it as a bar to an action against himself. A different principle then comes into play, namely, that no one should receive double compensation for a single injury.3
Another case can be put where the dispossessed owner has concurrent rights against two or more persons. B. and C. may have jointly dispossessed A., instead of being successive holders of the converted chattel. Under these circumstances A. may proceed against B. and C. jointly or severally. If he obtain a joint judgment in Trespass or Trover, all his rights against both are merged therein, and his title to the chattel is extinguished. But if he obtain a separate judgment against one, he may still bring Replevin or Detinue against the other to recover the chattel, or Trespass or Trover for its value; for the latter cannot invoke the maxim, nemo bis vexari debet pro eadem causa.1 Not until the judgment against the one is satisfied can it be used as a bar in an action against the other. The controversy whether the title to a converted chattel vests in a defendant by a simple judgment, or only after the satisfaction of the judgment, is, therefore, but another battle of the knights over the gold and silver shield. Under some circumstances the title changes by the judgment alone; in other cases satisfaction is necessary to produce that result.2
INALIENABILITY OF CHOSES IN ACTION
The rule that a chose in action is not assignable was a rule of the widest application. A creditor could not assign his debt. A reversioner could not convey his reversion, nor a remainder-man his remainder. A bailor was unable to transfer his interest in a chattel. And, as we have seen, the disseisee of land or chattels could not invest another with his right to recover the res or its value. In a word, no right of action, whether a right in rem or a right in personam, whether arising ex contractu or ex delicto, was assignable either by act of the party or by operation of law.
A right of action for the recovery of land or chattels, or of a debt which, like land or chattels, was regarded as a specific res, did, indeed, descend to one’s representative in the case of death. But this was hardly a departure from the rule, since the representative was looked upon as a continuation of the persona of the deceased.1
There were, however, a few exceptions to the rule. The king, as might be supposed, could grant or receive the benefit of a chose in action. So, too, a reversion or a remainder was transferable by fine in the king’s court,2 or by a customary devise, which, when recorded in the local court, operated like a fine.3 Again, certain obligations, by the tenor of which the obligor expressly bound himself to the obligee and his assigns, could be enforced by a transferee. If, for instance, one granted an annuity to A. and his assigns, or covenanted to enfeoff A. and his assigns, or made a charter of warranty to A. and his assigns, the assignee was allowed to bring an action in his own name against the grantor,1 covenantor,2 and warrantor,3 respectively.
The significance of this exception lies in the fact that it goes far to explain the reason of the rule which prohibits the assignment of rights of action in general. The traditional opinion that this rule had its origin in the aversion of the “sages and founders of our law” to the “multiplying of contentions and suits”4 shows the power of a great name for the perpetuation of error. The inadequacy of this explanation by Lord Coke was first pointed out by Mr. Spence.5 The rule is not only older than the doctrine of maintenance in English law, but is believed to be a principle of universal law.
A right of action in one person implies a corresponding duty in another to perform an agreement or to make reparation for a tort. That is to say, a chose in action always presupposes a personal relation between two individuals. But a personal relation in the very nature of things cannot be assigned. Even a relation between a person and a physical thing in his possession, as already stated,6 cannot be transferred. The thing itself may be transferred, and, by consent of the parties to such transfer, the relation between the transferror and the thing may be destroyed and replaced by a new but similar relation between the transferee and the res. But where one has a mere right against another, there is nothing that is capable of transfer. The duty of B. to A., whether arising ex contractu or ex delicto, may of course be extinguished and replaced by a new and coextensive duty of B. to C. But this substitution of duties can be accomplished only in two ways: either by the consent of B., or, without his consent, by an act of sovereignty. The exceptions already mentioned of assignments by or to the king, and conveyances of remainders and reversions in the King’s Court, are illustrations of the exercise of sovereign power. Further illustrations are found in the bankruptcy laws which enable the assignee to realize the bankrupt’s choses in action,1 and in the Statute 4 and 5 Anne, c. 16, which abolished the necessity of attornment.
When the substitution of duties is by consent, the consent may be given either after the duty arises or contemporaneously with its creation. In the former case the substitution is known as a novation, unless the duty relates to land in the possession of a tenant, in which case it is called an attornment. A consent contemporaneous with the creation of the duty is given whenever an obligation is by its terms made to run in favor of the obligee and his assigns, as in the case of annuities, covenants, and warranties before mentioned, or to order or bearer, as in the case of bills and notes and other negotiable securities. Here, too, on the occasion of each successive transfer, there is a novation by virtue of the obligor’s consent given in advance; the duty to the transferror is extinguished and a new duty is created in favor of the transferee.
The practice of attornment prevailed from time immemorial, but was confined to the transfer of reversions and remainders. Novation, although now a familiar doctrine, was, if we except the case of obligations running to the obligee and his assigns, altogether unknown before the days of assumpsit upon mutual promises.1 The field for the substitution of duties by consent was therefore extremely limited, and in the great majority of cases a creditor would have found it impossible to give another the benefit of his claim had not the ingenuity of our ancestors devised another expedient, namely, the letter of attorney. By such a letter, the owner of a claim appointed the intended transferee as his attorney, with power to enforce the claim in the appointor’s name, but to retain whatever he might recover for his own benefit. In this way the practical advantage of a transfer was secured without any sacrifice of the principle of the inalienability of choses in action.2
Indeed, so effectual was the power of attorney as a transfer, that, during a considerable interval, it was thought unduly to stimulate litigation, and therefore to fall within the statutory prohibition of maintenance, unless the power was executed for the benefit of a creditor of the transferror. Powers executed for the benefit of a purchaser or donee were treated as void from the beginning of the fifteenth century, if not earlier, till near the close of the seventeenth century.3
The objection of maintenance at length gave way before the modern commercial spirit, and for the last two centuries debts have been as freely transferable by power of attorney as any other property.1
By statute, in many jurisdictions, the assignee may even sue in his own name. But it is important to bear in mind that the assignee under the statute still proceeds in a certain sense as the representative of the assignor. The statute of itself works no novation. It introduces only a change of procedure.2 A release by the assignor to the debtor, ignorant of the assignment, extinguishes all liability of the debtor to any one.
So, if the assignor should wrongfully make a second assignment, and the second assignee should collect the debt, he would keep the money, and the first assignee would get nothing.3
We are now in a position to consider upon principle to what extent and in what mode a disseisee’s interest in land or chattels may be transferred. The disseisee, by reason of the disseisor’s tort, has a right to recover the res from the latter by self-redress or by action. This relation between the two, as we have seen, cannot be specifically transferred to another. There is, of course, no question of novation in such a case. But the mode of transfer which proved so effectual in the case of rights ex contractu, is equally applicable to claims arising ex delicto. The disseisee has only to constitute the intended grantee his attorney with power to recover the land or chattel, and to keep for his own benefit the res when recovered. There is an instance of such a grant as old as the time of Richard I.: “G. filius G. ponit loco suo J. versus Gil. . . . de placito XL. acrarum terræ in H. ad lucrandum vel perdendum etconcedit ei totum jus suumquod habet in predicta terra.”1
The doctrine of maintenance which so long hampered the assignment of contractual rights proved an even more persistent obstacle to the transfer of rights to recover land or chattels. Indeed, in the case of land it was an insuperable obstacle in England until 1845; for up to that time the Statute 32 Henry VIII. c. 16, expressly nullified all grants by one disseised. In this country, however, the right of the grantee of a disseisee to bring a real action in the name of his grantor has, during the present century, been generally recognized.1
It is believed that in England, at the present day, one who is dispossessed of his chattels may so far transfer his interest as to enable the assignee to bring an action to recover the chattel or its value in the name of the assignor. But no decision has been found upon the point. In the United States the right of the transferee to sue in the transferror’s name,2 or, in jurisdictions where the real party in interest must be plaintiff, in his own name,3 would be universally conceded.
We have thus far assumed that the dispossessed owner has nothing to transfer but a right of action or recaption; that when he is called owner, nothing more is meant than that he has the chief one of the two elements of perfect ownership, namely, the right of possession, and is, therefore, potentially owner. This assumption is conceived to be well founded, and is supported by abundant authority.1 There are, however, a few decisions and dicta to the contrary.2 These adverse opinions all go back to a dictum of Mr. Justice Story: “I know of no principle of law that establishes that a sale of personal goods is invalid because they are not in the possession of the rightful owner, but are withheld by a wrong-doer. The sale is not, under such circumstances, the sale of a right of action, but it is the sale of the thing itself, and good to pass the title to every person, not holding the same under a bona fide title for a valuable consideration without notice; and a fortiori against the wrong-doer.”3 Had this unfortunate dictum proceeded from a less distinguished source, it probably would not have had its present following. It may be said of it that it involves a petitio principi, assuming without proof, and in contradiction of all precedent, that the dispossessed owner really has something more than a right of action. What this something is has never been defined, and, it is submitted, for the reason that non-existent things are incapable of definition.
Let us test this dictum, however, by some of its practical consequences. We will suppose that after the sale the converter, in ignorance thereof, makes full compensation to the vendor for the conversion, and receives from him a release. Will it be maintained that the converter cannot hold the chattel against the vendee? And yet if the title passed to the vendee by the sale, that title cannot be affected by a subsequent release by one who has no title. Again, we may assume that the vendor wrongfully makes a second sale, and that the second vendee, being still in ignorance of the first sale, recovers the chattel or its value from the converter. Must the second vendee surrender what he recovers to the first vendee? Surely not. But he must if the dictum under discussion is sound. Thirdly, if the title passed to the vendee, what becomes of the vendor’s right of action? Surely he cannot recover the value of the chattel from the converter after he has sold it to another. But it may be urged he will be entitled to nominal damages only. Be it so. Suppose, then, that immediately after the sale the chattel is accidentally destroyed. The vendor will recover his nominal damages, the vendee will get nothing, and the converter will go practically scot free. It is possible to say, however, that the sale passes not only the title, but also the right to sue in the vendor’s name for the conversion. But this hypothesis may work an injustice to the converter. If not sued for six years his title will be perfect. Suppose the sale to occur near the end of the period of limitation, and that the vendee can prove a conversion subsequent to the sale, as by a demand and refusal, the statute would run for another six years, which could not have happened in favor of the vendor if there had been no sale. In other words, the rule, Nemo dare potest quod non habet, would be violated.1
All these unsatisfactory results are avoided by the adoption of the opposite view, supported alike by precedent and general reasoning, that a right of action is the sum and substance of the interest of a dispossessed owner of a chattel. On this theory the sale of the disseisee’s right of action has the same operation as the assignment of a debt. The vendee stands in the place of the grantor, but does not displace him. He cannot accordingly extend the statute of limitations to the detriment of the converter. A release by the vendor for value to the converter who is ignorant of the sale, although wrongful, extinguishes all right to recover possession from the latter, and so makes him complete owner of the chattel. And, finally, a second purchaser from the dispossessed owner, who in good faith gets the chattel from the converter, may keep it. If, furthermore, statutes existed in all jurisdictions enabling the purchaser from a dispossessed owner of a chattel to sue for its recovery in his own name, there would be a complete harmony between the requirements of legal principle and commercial convenience.
In conclusion, then, the ancient doctrine of disseisin of land and chattels was not an accident of English legal history, but a rule of universal law. Brian’s dictum, that the wrongful possessor had the property and the dispossessed owner only the right of property, rightly understood, is not a curiosity for the legal antiquarian, but a working principle for the determination of controversies for all time.
THE MYSTERY OF SEISIN1
ANY one who came to the study of Coke upon Littleton with some store of modern legal ideas but no knowledge of English Real Property Law would, it may be guessed, at some stage or another in his course find himself saying words such as these:—‘Evidently the main clue to this elaborate labyrinth is the notion of seisin. But what precisely this seisin is I cannot tell. Ownership I know and possession I know, but this tertium quid, this seisin, eludes me. On the one hand when Coke has to explain what is meant by the word he can only say3 that it signifies possession, with this qualification however that it is not to be used of movables and that one who claims no more than a chattel interest in land can not be seised though he may be possessed. But on the other hand if I turn from definitions to rules then certainly seisin does look very like ownership, insomuch that the ownership of land when not united with the seisin seems no true ownership.’
The perplexities of this imaginary student would at first be rather increased than diminished if he convinced himself, as I have convinced myself and tried to convince others, that the further back we trace our legal history the more perfectly equivalent do the two words seisin and possession become, that it is the fifteenth century before English lawyers have ceased to speak and to plead about the seisin (thereby being meant the possession) of chattels.4 Certainly as we make our way from the later to the older books we do not seem to be moving towards an age when there was some primeval confusion between possession and ownership. We find ourselves debarred from the hypothesis that within time of memory these two modern notions have been gradually extricated from a vague ambiguous seisin in which once they were blent. In Bracton’s book the two ideas are as distinct from each other as they can possibly be. He is never tired of contrasting them. In season, and (as the printed book stands) out of season also, he insists that seisina or possessio is quite one thing, dominium or proprietas quite another. He can say with Ulpian, Nihil commune habet possessio cum proprietate.1
There are some perhaps who would have for the student’s questionings a ready and brief answer, satisfactory to themselves if not to him. If, they would say, you are thinking of ownership and applying that notion to English land, you indeed disquiet yourself in vain; dismiss the idea; it is not known, never has been known, to our law; land in this country is not owned, it is holden, holden immediately or mediately of the king. The questioner might be silenced; I doubt he would be convinced. In the first place he might urge, and it seems to me with truth, that the theory of tenure, luminous as it may be in other directions, sheds no one ray of light on the strangest of the strange effects which seisin and want of seisin had in our old law. In the second place he might appeal to authority and remark that Coke, who presumably knew some little of tenures, speaks freely and without apology of the ownership and even the ‘absolute ownership’2 of land, while as to Bracton, who lived while feudalism was yet a great reality, for lands and for chattels he has the same words, to wit, dominium and proprietas.
But it may well be said, and this brings us to more profitable doctrine, that English law knew no true ownership of land because the rights of a landowner who was not seised fell far short of our modern conception of ownership. Deprive the tenant in fee simple of seisin, and he is left with a right of entry. Even now this would be the most technically correct description of his right. Until lately his right might undergo a still further degradation; from having been a right of entry it might be debased into a mere right of action.
Now it is to the nature of these rights, whether we call them ownership or no, or rather to one side of their nature, that I would here draw attention. To simplify matters as much as possible we may for the moment leave out of account all estates and interests less than fee simple. The question then becomes this, what is the nature of the rights given by our old law to a person who is lawfully entitled to be seised of land in fee simple when as a matter of fact some other person is seised? or (to use words which will not be misunderstood though they are not the proper words of art) what is the nature of the rights of an absolute owner when some stranger is in possession?
Such a student as I have imagined might well be prepared to find that possession by itself, or possession coupled with certain other elements such as good faith and colour of title, or possession continued for a certain period, would have certain legal effects, effects which would consist in protecting the possessor against mere trespassers, in entitling him to recover possession if ejected by a stranger, in depriving the true owner of any right to obtain possession save by recourse to the courts, in at last depriving that owner of all right whatever and conferring on the possessor a title good against all men. He might expect too that in a system rich in definite forms of action, some possessory some proprietary, the outcome of different ages, these effects would be very complicated; and certainly he would not be disappointed. He would, for example, find the ousted owner gradually losing his remedies one by one, first the remedy by self-help, then the possessory assizes, then the writs of entry, lastly the very writ of right itself. He would here find much to puzzle him, for the rules as to the conversion of a right of entry into a right of action seem to us quaint and arbitrary. Still all these manifold and complex effects of possession and dispossession, seisin and want of seisin, are of a kind known and intelligible, partly due to formalities of procedure and statutory caprices, but tending in the main to protect the possessor in his possession and uphold the public peace against violent assertions of proprietary right; analogies may be found in other systems of law modern as well as ancient.
But this is far from all. Seisin has effects of a quite other kind. The owner who is not seised not only loses remedies one by one, but he seems hardly to have ownership, and this, not because all lands are held of the king, but because as regards such matters as the alienation, transmission, devolution of his rights he seems to be in a quite different position from that in which we should expect to find a person who, though he has not possession, has yet ownership. Let a few rules be repeated that were law until but a short while since. They are well known, but it may be worth while to put them together, for they make an instructive whole.
(1) Until the 1st of October 1845, a right of entry could not be alienated among the living.1 In other words, the owner who is not seised has nothing to sell or to give away.
An explanation of this rule has been found in the law’s dislike of maintenance. It may be given in the words of Sir James Mansfield:—‘Our ancestors got into very odd notions on these subjects, and were induced by particular causes to make estates grow out of wrongful acts. The reason was the prodigious jealousy which the law always had of permitting rights to be transferred from one man to another, lest the poorer should be harassed by rights being transferred to more powerful persons.’2 This bit of rationalism is of respectable antiquity; it is certainly as old as Coke’s day;3 and true it is that at one time our laws did manifest a great, but seemingly most reasonable,1 jealousy of maintenance and champerty, of bracery and the buying of pretenced titles. But still the explanation seems insufficient. Its insufficiency will be best seen when we pass to some other rules. In passing, however, let us notice how deeply rooted in our old law this rule must be. We come upon it directly we ask the simplest question as to the means of transferring ownership. What is the one ‘assurance,’ the one means of passing ownership, known to the common law? Why, if we leave out of account litigious proceedings real or fictitious, it is the feoffment, and there must be livery of seisin, that is, delivery of possession. One cannot deliver possession to another when a third person is possessing; so a right of entry cannot but be inalienable. Or put it this way: our old law has an action which is thoroughly proprietary, which raises the question of most mere right, the writ of right, the only hope of one who cannot base his claim on a recent possession. Yet even in the writ of right the demandant must count upon his own seisin or on the seisin of some ancestor, and thence deduce a title by descent; he cannot count on the seisin of a donor or vendor, ‘for the seisin of him of whom the demandant himself purchased the land availeth not.’2 This is a rule which can be traced from Coke to Bracton,3 a rule of procedure, be it granted, but a rule which shows plainly that he who has no seisin has nothing that he can give to another. But to this matter of alienation inter vivos we will return.
(2) Before the 1st of January 18384 a right of entry could not be devised by will. About devises of course we cannot expect much ancient common law. The question depended on the meaning of the statutes of 15405 and 1542;6 but the manner in which these statutes were interpreted is worthy of note. Throughout the verb used of the person who is empowered to make a will is the verb to have. The person who has any manors, lands, tenements or hereditaments may dispose of them by will. But though some modern judges did not much like the interpretation, still the old interpretation was that the disseised owner has not any land, tenement, or hereditament, and therefore has nothing to leave by his will.1 A case from the year 1460 shows plainly that before the statutes a similar rule prevailed; to give validity to a devise under local custom it was essential that the testator should die seised, though it was doubted whether he need be seised when making the will.2
(3) Until the 1st of January 18343seisina fecit stipitem. Now this when duly considered seems a very remarkable rule, for it comes to this, that a landowner who has never been in possession has no right that he can transmit to his heir, or in other words, that ownership is not inheritable. Such a person may be (to use a venerable simile) the passive ‘conduit-pipe’ through which a right will pass, but no one shall ever get the land by reason that he was this man’s heir; a successful claimant must make himself heir to one who was seised. But what explanation have we for this? A fear of maintenance very obviously fails us, and as it seems to me feudalism must fail us also, unless we are to suppose a time when seisin meant not mere possession but possession given, or at least recognized, by the lord of the fee. But for imagining any such time we have no warrant. It seems law from the first that the rightful tenant can be disseised, though the lord be not privy to the disseisin, and that the disseisor will be seised whether the lord like it or no.
And to constitute a new stock of descent a very real possession was necessary. The requisite seisin was not a right which could descend from father to son; it was a pure matter of fact. Even though there was no adverse possessor, even though possession was vacant, the heir was not put into seisin by his ancestor’s death; an entry, a real physical entry, was necessary. We all know the old story of the man who was half inside half outside the window, and who was pulled out by the heels. It was certainly a nice problem whether he possessed corpore as well as animo; but at any rate on this depended the question whether he had been seised and could maintain the novel disseisin against those who extracted him.1
(4) The Dower Act of 18332 for the first time gave a widow dower of a right of entry; but for that statute the widow of one who has not been seised goes unendowed. It is true that in this case ‘a seisin in law or a civil seisin’ would answer the purpose of ‘a seisin in deed.’3 But this ‘seisin in law’ only existed when possession was in fact vacant. A man was seised neither in fact nor yet in law if some other person had obtained and was holding seisin. If such an one did not get seisin during the coverture his wife would get no dower.
Here it may be remarked that seisin did to some extent become a word with many meanings or rather shades of meaning. The seisin which is good enough for one purpose is insufficient for another. ‘What shall be said a sufficient seisin’ to give dower, to give curtesy, to constitute a stock of descent, to maintain a writ of right4 —each of these questions has its own answer. But I believe that the variations are due (1) to the treatment of cases in which no one has corporeal possession of the lands, and (2) to the application of the idea of possession to subjects other than lands, namely, the incorporeal hereditaments, an application which must necessarily be difficult and may easily be capricious. No fictitious seisin in law was, so far as I am aware,5 ever attributed to one who however good his title was clearly dispossessed, to one whose land was being withheld from him by a stranger to the title. And the ‘seisin in law’ may well set us thinking. When we hear that A is B in law we can generally draw an inference about past history:—it has been found convenient to extend to A a rule which was once applied only to things which were B in deed and in truth; in short, there was a time when A was not B even in law. For a few but by no means all purposes we may say with the old French lawyers, ‘le mort saisit le vif;’ the seisin in law would, e. g. give dower, but it would not make a stock of descent.
(5) To give a husband curtesy seisin during the coverture was necessary. This rule has never yet been abolished, though it has been somewhat concealed from view both by Equity and by statutes.
So far we have been concerned with rules which are still generally known, and one of them, the rule about curtesy, has not yet become a matter for the antiquary. It now becomes desirable to glance at some obscurer topics. Since we are sometimes assured that in one way or another the strange effects of seisin and want of seisin are due to feudalism, we ought to ask how the rights of a lord were affected by the fact that ‘the very tenant,’ the true owner, was out of seisin and some other person in seisin.
Suppose tenant in fee simple is disseised and then dies without an heir, what can be plainer on feudal principles (feudal principles as understood in these last times) than that the land will escheat to the lord, that the lord will be able to recover the land from the disseisor or from any person who has come to the land through or under the disseisor? But such was not the law even in the last, even in the present century, and if it be law now, a point about which I had rather say nothing, this must be the result either of the statutes which have deprived feoffments and descents of their ancient efficacy or else of a convenient forgetfulness. In Coke’s day it seems to have been settled that from the original disseisor the lord could obtain the land either by entry or by action (writ of escheat), provided that he had not accepted the disseisor as tenant. If however before the death of the disseisee the disseisor made a feoffment in fee, or died seised leaving an heir, there was no escheat at all, ‘because the lord had a tenant in by title;’ he had, that is, a tenant who could not personally be charged with any tort. Of a right of action, as distinguished from a right of entry, there was no escheat; ‘such right for which the party had no remedy but by action only to recover the land is a thing which consists only in privity, and which cannot escheat nor be forfeited by the common law.’1 What is more, it had been held that the most sweeping general words in acts of attainder would not transfer such rights to the crown; they were essentially inalienable, intransmissible rights.
But if we go behind Coke we find that so far from the law having been gradually altered to the detriment of the lords, if altered at all it had been altered to their profit. We come to a time when there seems the greatest uncertainty whether the lord can get the land from the very disseisor. The writ of escheat, his only writ, distinctly says that his tenant has died seised. I do not wish to dogmatize about a very obscure history, but it will be enough to say that under Henry VII Brian C. J. denied that the lord could enter or bring action against the disseisor.2
It was so with the other feudal casualties. Coke says3 that if the disseisee die having still a right of entry and leave an heir within age the lord shall have a wardship. Doubtless the law was so in his day, but the earliest authority that he cites is from the reign of Edward III and to this effect—‘In a writ of ward it is a good plea that the ancestor of the infant had nothing in the land at the time of his death; for if he was disseised the lord shall not have a wardship, neither by writ of ward nor by seizing him [the heir], until the tenancy is recontinued.’1 But at all events of a right of action there was no wardship. On the other hand, if the disseisor died without an heir the lord got an escheat, if the disseisor died leaving an infant heir the lord got a wardship, though in either case his rights were defeasible by the disseisee. In short, the lord must take his chance; it is no wrong to him if his tenant be disseised; he cannot prevent this person or that from acquiring seisin, yet thus he may be a great loser or a great gainer. The law about seisin pays no regard to his interests.
There is another side to the picture we have here drawn. He who is seised, though he has no title to the seisin, can alienate the land; he can make a feoffment and he can make a will (for he who has land is enabled to devise it by statute), and his heir shall inherit, shall inherit from him, for he is a stock of descent; and there shall be dower and there shall be curtesy, and the lord shall have an escheat and the king a forfeiture, for such a one has land ‘to give and to forfeit.’ This may make seisin look very much like ownership, and in truth our old law seems this (and has it ever been changed?2 ) that seisin does give ownership good against all save those who have better because older title. Nevertheless we err if we begin to think of seisin as ownership or any modification of ownership; after all it is but possession. A termor was not seised, but certainly he could make a feoffment in fee and his feoffee would be seised. This seems to have puzzled Lord Mansfield,3 and puzzling enough it is if we regard seisin itself as a proprietary right, for then the termor seems to convey to another a right that he never had. But when it is remembered that substantially seisin is possession, no more, no less, then the old law becomes explicable. My butler has not possession of my plate, he has but a charge or custody of it; fraudulently he sells it to a silversmith; the silversmith now has possession: so with the termor, who has no seisin, but who by a wrongful act enables another to acquire seisin.
But, it will be urged, the termor’s feoffee (here is the difficulty) acquires an estate in fee simple and no less estate or interest. Certainly, and what of the silversmith who buys of the fraudulent butler? He has possession, and in a certain sense he possesses as owner; he claims no limited interest, such as that of a bailee, in the goods. How his rights would best be described at the present day we need not discuss, but it seems plausible to say that at least if an innocent purchaser, he has ownership good against all save those who have better because older title.1 Regarded from this point of view the termor’s tortious feoffment is no anomaly. It is true that in our modern law there may be nothing very analogous to the process whereby an infirm title gained strength as it passed from man to man, the ousted owner losing the right to enter before he lost the right of action; still it is conceivable that in the interests of public peace law should, for example, permit me to take my goods by force from the thief himself, but not from one to whom the thief has given or sold them, nor from the thief’s executor. Thus would my entry be tolled and I should be put to my action.2
But this by the way, for the position of the non-possessed owner is more interesting and less explicable than that of the possessed non-owner. Now we seem brought to this, that ownership, mere ownership, is inalienable, intransmissible; neither by act of the party nor by act of the law will it pass from one man to another. The true explanation of the foregoing rules will I believe be found in no considerations of public policy, no wide views of social needs, but in what I shall venture to describe as a mental incapacity, an inability to conceive that mere rights can be transferred or can pass from person to person. Things can be transferred; that is obvious; the transfer is visible to the eye; but how rights? you have not your rights in your hand or your pocket, nor can you put them into the hand of another nor lead him into them and bid him walk about within their metes and bounds. ‘But,’ says the accomplished jurist, ‘this is plain nonsense; when a gift is made of a corporeal thing, of a sword or a hide of land, rights are transferred; if at the same time there is a change of possession, that is another matter; whether a gift can be made without such a change of possession, the law of the land will decide; but every gift is a transfer of ownership, and ownership is a right or bundle of rights; if gift be possible, transfer of rights is possible.’ That, I should reply, doubtless is so in these analytic times; but I may have here and there a reader who can remember to have experienced in his own person what I take to be the history of the race, who can remember how it flashed across him as a truth, new though obvious, that the essence of a gift is a transfer of rights. You cannot give what you have not got:—this seems clear; but put just the right accent on the words give and got, and we have reverted to an old way of thinking. You can’t give a thing if you haven’t got that thing, and you haven’t got that thing if some one else has got it. A very large part of the history of Real Property Law seems to me the history of the process whereby Englishmen have thought themselves free of that materialism which is natural to us all.
But it will be said to me that this would-be explanation is untrue, or at best must take us back to a merely hypothetical age of darkness, because from time immemorial there were rights which could be transferred from man to man without any physical transfer of things, namely, ‘the incorporeal hereditaments which lay in grant and not in livery.’ In truth however the treatment which these rights receive in our oldest books is the very stronghold of the doctrine that I am propounding. They are transferable just because they are regarded not as rights but as things, because one can become not merely entitled to, but also seised and possessed of them, corporeally seised and possessed. Seisin, it may be, cannot be delivered; I cannot put an advowson into your hand, nor can an advowson be ploughed and reaped; nevertheless the gift of the advowson will be far from perfect until you have presented a clerk who has been admitted to the church. In your writ of right of advowson you shall count that on the presentation of yourself or your ancestor a clerk was admitted, nay more, that your clerk exploited the church, took esplees thereof in tithes, oblations and obventions to the value of so many shillings.1 But we may look at a few of these things incorporeal a little more closely.
And first then of seignories, reversions, remainders. These, it is said, lie in grant. But for all that the tenant of the land must attorn to the grantee; the attornment is necessary to perfect the transfer of the right. Such was the law in 1705.2 Whence this necessity for an attornment?
It may be replied:—Here at all events is a feudal rule. Just as (before the beginning of clear history) the tenant could not alienate the land without the lord’s consent, so in the reign of Queen Anne the lord could not alienate the seignory without the tenant’s attornment. There was a personal bond between lord and vassal; the need of attornment is to start with the need of the tenant’s consent, though certainly in course of time he could be compelled to give that consent.
Now it may not be denied that in this region feudal influence was at work. To deny this one must contradict Bracton. But the sufficiency of the explanation should not be admitted until some text of English law is produced which says that the tenant can as a general rule refuse consent to an alienation. Bracton does say that except in exceptional cases there can be no transfer of homage unless the tenant consents; on the other hand he says that all other services can be transferred and the tenant shall be attorned velit nolit.1 It is of course possible to regard this state of things as transitional, to urge that in Bracton’s day the tenant had already lost a veto on alienation that he once had; but before we adopt this theory let us see how much less ground it covers than the rules which have to be explained.
(a) The doctrine of attornment holds good not only of a seignory and of a reversion but of a remainder also;2 but between the remainderman and the tenant of the particular estate there is no tenure, no feudal bond.
(b) Much the same doctrine holds good when what has to be conveyed is the land itself (immediate freehold) but that land is in lease for years. Here the transfer can be made in one of two ways. There may be a grant and then attornment will be necessary,3 or there may be a feoffment. But if there is to be a feoffment, either the termor must be a consenting party or he must be out of possession.4 If the termor chooses to sit upon the land and say ‘I will not go off and I will not attorn myself,’ there can be no effectual grant, no effectual feoffment; recourse must be had to a court of law. But surely it will not be said that in the days of true feudalism, when, as we are told, the termor was regarded much as his landlord’s servant, he had a legal right to prevent his landlord from selling the land?
(c) The doctrine of attornment holds good of rents not incident to tenure.5 The terre-tenant will not hold of the grantee of the rent, nevertheless he must attorn if the grant is to have full efficacy. Indeed the learning of rents as it is in Coke,6 and even as it is at the present day, seems to me very suggestive of an ancient mode of thought. The rent is regarded as a thing, and as a thing which has a certain corporeity (if I may so speak); you may be seised, physically possessed of it; you have no actual seisin until you have coins, tangible coins, in your hand. On getting this actual seisin much depended; in modern times a vote for Parliament.1 An attornment would give you a fictitious ‘seisin in law;’ nothing but hard palpable cash would give you seisin in fact. Such an incorporeal hereditament as a rent can be given by man to man just because it occasionally becomes corporeal under the accidents of gold or silver; this seems the old theory.
Now as to attornment, a valuable analogy lies very near to our hands. Suppose that we shut Coke upon Littleton and open Benjamin on Sales. Describing what will be deemed an ‘actual receipt’ of sold goods within the meaning of the Statute of Frauds, Mr. Benjamin writes thus:—‘When the goods, at the time of the sale, are in the possession of a third person, an actual receipt takes place when the vendor, the purchaser, and the third person agree together that the latter shall cease to hold the goods for the vendor and shall hold them for the purchaser. . . . All of the parties must join in the agreement, for the agent of the vendor cannot be converted into an agent for the vendee without his own knowledge and consent.’2 This is familiar law, and surely it explains much. Baron Parke used a very happy phrase when he said that there is no ‘actual receipt’ by the buyer ‘until the bailee has attorned, so to speak’ to the buyer, a happy phrase for it explained the obscure by the intelligible, the old by the modern.3
Without transfer of a thing there is no transfer of a right.
Starting with this in our minds, how, let us ask, can a reversioner alienate his rights when a tenant for life is seised, how can a tenant in fee simple alienate his rights when there is a termor on the land? There is but one answer. The person who has the thing in his power must acknowledge that he holds for or under the purchaser. If he does this, then we may say (as we do say when construing the Statute of Frauds) that the purchaser has ‘actually received’ the thing in question. It is I admit difficult to carry this or any other theory through all the intricacies of our old land law. The fact that in course of time there came to be two legally recognized possessions, first the old-fashioned possession or seisin which no termor can have (possessio ad assisas), and then the new fashioned possession which a termor can have (possessio ad breve de transgressione), complicates what, to start with, may have been a simple notion.1 But the clue is given us in some words of Britton:—tenant in fee wants to alienate his land, but there is a farmer in possession; until the farmer attorns there can be no conveyance, car la seisine del alienour sei continue touz juirs par le fermer, qui use sa seisine en le noun le lessour;2 the seisin is held for the alienor until the farmer consents to hold it for the alience. So when the person on the land is tenant in fee simple, here doubtless he is seised on his own behalf, seised in demesne, but the overlord also is seised, seised of a seignory, or, as the older books put it, he holds the land in service (non in dominico sed in servicio); he holds the land by the body of his tenant; he can only transfer his rights if he can transfer seisin of the seignory; he transfers seisin when the tenant admits that he is holding under a new lord.3 So with a rent which ‘issues out of the land;’ we cannot make a rent issue out of land, or turn the course of a rent already issuing, unless we can get at the land; if some one else has possession of the land, it is he that has the power to start or to divert the rent. This phrase ‘a rent issuing out of land’ would seem to us very wonderful and very instructive, had we not heard it so often. What a curious materialism it implies!
Bracton’s whole treatment of res incorporales shows the same materialism, which is all the more striking because it is expressed in Roman terms and the writer intends to be very analytic and reasonable. Jura are incorporeal, not to be seen or touched, therefore there can be no delivery (traditio) of them. A gift of them, if it is to be made at all, must be a gift without delivery. But this is possible only by fiction of law. The law will feign that the donee possesses so soon as the gift is made and although he has not yet made use of the transferred right. Only however when he has actually used the right does his possessio cease to be fictiva and become vera, and then and then only does the transferred right become once more alienable.1
Of all these incorporeal things by far the most important in Bracton’s day and long afterwards was the advowson in gross, and happily he twice over gives us his learning as to its alienability with abundant vouching of cases.2 To be brief:—If A seised of an advowson grants it to B, and then the church falls vacant, B is entitled to present. Thus far have advowsons become detached from land. But if before a vacancy B grants to C, and then the parson dies, who shall present? Not C, nor B, but A. Not C, for though B had a quasi-possession when he made the grant he had no real possession, for he had never used the transferred, or partially transferred, right; he had nothing to give; he had nothing. Not B, for whatever inchoate right he had he has given away. No, as before said, A shall present, for the only actual seisin is with him. One has not really got an advowson until one has presented a clerk and so exploited one’s right.
We may take up the learning of advowsons some centuries later. The following comes from a judgment not unknown to fame, the judgment of Holt in Ashby v. White.3 He is illustrating the doctrine that want of remedy and want of right are all one. ‘As if a purchaser of an advowson in fee simple, before any presentment, suffer an usurpation and six months to pass without bringing his quare impedit he has lost his right to the advowson, because he has lost his quare impedit which was his only remedy; for he could not maintain a writ of right of advowson; and although he afterwards usurp and die and the advowson descend to his heir, yet the heir cannot be remitted, but the advowson is lost for ever without recovery.’ So, as I understand, stood the law before the statute 7 Ann. c. 18. It comes to this, that if the grantee who has never presented suffers a usurpation, and does not at once use a special statutory remedy,1 his right, his feeble right, has perished for ever. Writ of right he can have none, for he cannot count on an actual seisin. Very precarious indeed at Common Law was the right of the grantee who had not yet acquired what could be regarded as a physical corporeal possession of a thing. Indeed when we say that these rights lay in grant we use a phrase technically correct, but very likely to mislead a modern reader.
Space is failing or I would speak of franchises, for even to negative franchises, such as the right to be quit of toll, does Bracton apply the notion of seisin or possession; and the more the history of the incorporeal hereditaments is explored, the plainer will it be that according to ancient ideas they cannot be effectually passed from person to person by written words: there is seisin of them, possession of them, no complete conveyance of them without a transfer of possession, which, when it is not real must be supplied by fiction. But now if we put together all the old rules to which reference has here been made (and I will ask my readers to fill with their learning the many gaps in this brief argument), does it not seem that these ‘very odd notions’ of our ancestors, which Sir James Mansfield ascribed to ‘particular causes,’ were in the main due to one general cause? They point to a time when things were transferable and rights were not. Obviously things are transferable, but how rights?
And here let us remember the memorable fact that the chose in action became assignable but the other day. The inalienability of the benefit of a contract, like the inalienability of the rights of the disseised owner, has been set down to that useful, hard-worked ‘particular cause,’ the prodigious jealousy of maintenance. The explanation has not stood examination in the one case,1 I doubt it will stand examination in the other. According to old classifications the benefit of a contract and the right to recover land by litigation, stand very near each other. The land-owner whose estate has been ‘turned to a right’ (a significant phrase) has a thing in action, a thing in action real. There is a contrast more ancient than that between jus in rem and jus in personam, namely, that between right and thing. Of maintenance there is, I believe, no word in Bracton’s book, but that there can be no donatio without traditio is for him a rule so obvious, so natural, that it needs no explanation, though it may be amply illustrated by cases on the rolls. What the thirteenth century learned of Roman law may have hardened and sharpened the rule, but it seems ingrained in the innermost structure of our law.
I am far from saying that within the few centuries covered by our English books it has ever been strictly inconceivable that a right should be transferred without some transfer of a thing, or without some physical fact which could be pictured as the use of a transferred incorporeal thing. Should it even be proved that the Anglo-Saxon charter or ‘book’ passed ownership without any transfer of possession, this will indeed be a remarkable fact, but far from decisive, particularly if the proof consist of royal grants. The king in council may have been able to do many marvellous feats not to be done by common men, and we know that ages before the year 1875 the king could assign his chose in action. But old impotencies of mind give rise to rules which perdure long after they have ceased to be the only conceivable rules, and then new justifications have to be found for the wisdom of the ancients, here feudalism, there a dread of maintenance, and there again a hatred of simony. So long as the rules are unrepealed this rationalizing process must continue; judges and text-writers find themselves compelled to work these archaisms into the system of practical intelligible law. Only when the rules are repealed, when we can put them all together and look at them from a little distance, do they begin to tell their true history. I have here set down what seems to me the main theme of that history. For this purpose it has been necessary to speak very briefly and superficially of many different topics, about every one of which we have a vast store of detailed and intricate information. Before any theory such as that here ventured can demand acceptance, it must be stringently tested at every point and other systems of law besides the English should be considered. But it seemed worth while to draw notice to many old rules of law which we do not usually connect together, and to suggest that they help to explain each other and are in the main the outcome of one general cause.1
THE HISTORY OF THE ACTION OF EJECTMENT IN ENGLAND AND THE UNITED STATES1
§ 1.— The action of ejectment, the legal proceeding by which the title to land in most of the United States is now usually tried, was originally an action of trespass brought by a lessee or tenant for years to redress the injury inflicted upon him by ouster or amotion of possession. The lessee merely recovered damages for the loss of the term and of the possession, the measure of these being usually the mesne profits of the land from which he had been evicted. It was a purely personal action, in which neither lands nor tenements were recoverable, as opposed to a real action, in which a freehold interest in land was recovered or possession awarded.
The remedy of ejectment, as subserving the uses of a real action, in which important character we are about to consider it, has been termed “a modified action of trespass,” but more accurately speaking, the change effected was an enlargement of the original remedy rather than a modification of it.
§ 2.— The common law furnished an endless number of real writs to determine the rights of property in, or possession of, a freehold estate.1 The highest technical skill and learning were requisite to comprehend and define the nature and purposes of these various writs, the distinctions between which were refined, abstruse, and often scarcely perceptible.2 In personal actions, however, there were never many writs at common law. This very scarcity made personal actions attractive in early times, the pleader being seldom at a loss to know which writ to choose; while in real actions the most experienced practitioner, exercising the utmost care, frequently sued out a real writ of the wrong degree, class, or nature, thereby rendering the proceeding of no avail, and frequently imperiling the demandant’s right to the proper writ or remedy. Not only were the distinctions between real writs very technical, and the selection of the proper writ a delicate task, but the proceedings under them were so inconveniently long, tedious, and costly, and the resources for delays so numerous, that the judgment when obtained was often a tardy and inadequate remedy.3
§ 3.— In real actions the practice required the demandant to set forth upon the record, with the utmost exactness and precision of statement, his legal title.4 Great technical skill and ingenuity were requisite to select, frame, and adapt the count to the nature and circumstances of each particular case. A variance of scarcely a hair-breadth between the writ and the count (or pleading), or between the count and the evidence, was frequently fatal to the demandant. Equal precision and nicety of statement were required to interpose a meritorious plea, or to defend or defeat the action; while the power of amendment as understood and permitted in modern times was wholly unknown, and even the limited power which the courts possessed was exercised with reluctance. “At common law,” says Baron Gilbert, “there was very little room for amendments.”1
§ 4.— The Statute of 8 Henry VI, ch. 9, rendering more effectual Stat. 15 Rich. II, ch. 2, furnished a writ of forcible entry to recover possession of land,2 which is one of the causes assigned by Sir Matthew Hale for the scarcity of real actions, or assizes, in the reports during the reigns of Edward IV, Richard III, and Henry VII.3 It is the general belief that the idea of giving ejectment the effect of a real action originated from the practice and procedure under this statute concerning forcible entries. We may observe that prior to the use of ejectment by tenants for years to recover unexpired terms, the technical learning as to the management of real actions began to be less known and understood, and was speedily becoming a lost art.
§ 5.— The same distinguished writer observes, concerning the pleadings at this period (1422 to 1509), that “the pleaders, yea, and the judges too, became somewhat too curious therein, so that that art or dexterity of pleading, which, in its use, nature and design, was only to render the fact plain and intelligible, and to bring the matter to judgment with a convenient certainty, began to degenerate from its primitive simplicity, and the true use and end thereof, and to become a piece of nicety and curiosity.”4 Much prolixity and repetition in pleading, and the miscarriage of important causes resulted by reason of small mistakes or trivial refinements and subtleties in practice. The rules of pleading were so severe that the action abated if the same thing was twice demanded in the writ;5 or if by mistake too many demandants had been joined;1 or if the tenant pleaded non-tenure where the demandant claimed more land than the tenant was possessed of;2 or if the demandant had by mistake declared on the seizin of his father instead of his grandfather.3 Nor could the demandant abridge his demand,4 though he might enter a nolle prosequi as to a distinct part of the claim.5 The substantial merits or justice of the cause were frequently overlooked or disregarded by the judges, and the action or defense wrecked by some frivolous variance or captious objection bearing no relation to the merits of the controversy.
It must be remembered that some real actions “were to be brought in a particular court; some lay only between particular persons; others, for and against those only who had particular estates, with various other circumstances that were requisite antecedent to bringing the action.”6 It was an era of critical precision in pleading and practice, substance being sacrificed to form. This is what led Lord Mansfield to observe that the modern action of ejectment was “invented under the control and power of the court, for the advancement of justice in many respects; and to force the parties to go to trial on the merits, without being entangled in the nicety of pleadings on either side.”7
§ 6.— Parliament did not interpose to reform these evils, or attempt to rid real actions of the intolerable abuses which sprang from them. The duty devolved upon the courts to correct, without legislative aid, the evils which they had themselves created and fostered. Real writs became not only a source of oppression and injustice to suitors, but of scandal and reproach to the system of remedial law of which they formed a part. By vouching over,8 demanding view,9 and praying aid,1 a skilful practitioner could prevent the joinder of issue term after term for years, and the trial of the action was frequently delayed until one of the parties died, whereupon the whole proceeding abated, and a new writ became necessary.2
§ 7.— We can, therefore, easily imagine with what eagerness both court and counsel availed themselves of the loophole which was at length discovered, by means of which the questions ordinarily raised in a real action could be brought up and decided in a personal action, and, at least so far as possession was concerned, the results of a real action attained in a simple action of trespass. By this means the title to real estate was tried in a proceeding “shaped and moulded by the court in such a manner as to relieve it from many of the technical difficulties which encumbered the ancient real actions.”3 The change was probably too radical and went too far. While it relieved the plaintiff of many embarrassments it sent the unfortunate tenant to trial without specific knowledge of the character of the title which was to be proved against him.
§ 8.— It is impossible to trace with precision, at this late day, the immediate circumstances which led to the sudden abandonment of real writs. The reasons assigned by the early writers are fragmentary and imperfect. Mr. Sergeant Adams, who wrote early in the century, says,4 that “neither the causes which led to this important change, nor the principles upon which it was founded, are recorded in any of the legal authorities of those times.” All the other writers upon ejectment are singularly silent upon the subject.
The history of procedure nowhere presents a more curious fact, than that the owners of the soil should have suddenly relinquished a system of remedies which had been matured by the experience of centuries, and have consented to try titles to the freehold in a personal action, originally devised to protect the precarious estates of the inferior tenantry.
§ 9.— The controlling influence undoubtedly was, as we have said, that the forms and pleadings in real actions were minutely varied, according to the source and quality of the demandant’s title, or the nature of the alleged disseizin, deforcement, or injury. But this very fact had been the boast of the early writers, who maintained that the assortment of real writs was so varied and complete that a demandant could suffer no injury and sustain no wrong, which there was not a real writ exactly suited to redress. Blackstone says that the provision, Westm. 2, 13 Edw. I, c. 24, for framing new writs, when wanted, was almost rendered needless by the very great perfection of the ancient forms. “And, indeed,” he continues, “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.”1 There is no doubt, however, that this supposed merit came, in process of time, to be a crying evil.
§ 10.— In ejectment the form of the action was always the same, without regard to the source or nature of the lessor’s title, or the character of the disseizin, deforcement, or ouster.
This dispensed with the delicate task of selecting a writ exactly suited to the nature of each particular case, and the necessity of tracing or disclosing the demandant’s title, or specifying the character of the ouster. To fully understand the historical causes which led to the substitution of ejectment for real actions, the change must be regarded as part of the general struggle for supremacy going on at about the same period between exact and general forms of procedure, specific and general pleading.
§ 11.— In the personal actions of trover and assumpsit, both of which assumed their modern form about the time that ejectments came into common use, a system of general pleading prevailed. This fact undoubtedly had an important influence in forming and popularizing ejectments. Suitors quickly discovered the advantages to a complainant of a remedy which enabled him to prove any title that he could produce at the trial, without the dangers incident to a variance, and which practically deprived the defendant of the right to vouch over, demand view, or pray aid.1
§ 12.Ejectione firmæ.—The writ of ejectione firmæ (probably modeled after ejectione custodiæ), out of which the modern action of ejectment has gradually grown into its present form, is not of any great antiquity.2 In this action every fiction by which questions of title to land could be raised and decided, was encouraged and adopted.
The Court of Common Pleas had exclusive jurisdiction of real actions while ejectment could be brought in all three of the great common law courts. This fact contributed in no slight degree to the great favor with which the fictions in ejectment were received and encouraged by the judges of the King’s Bench, for that court thereby acquired jurisdiction over real property concurrently with the Common Pleas. The practitioners in the King’s Bench also encouraged ejectment, for it enabled them to share in the lucrative practice of the Common Pleas.3
§ 13.— In feudal times a freehold estate was the only acknowledged title to land. Estates for years were unknown. A demise of the possession of land for a term of years was not considered as conveying to the grantee any title to the land, but was construed merely as a covenant, contract,1 or agreement between the lord and the tenant. The termor was considered as a bailiff to the freeholder or reversioner, or mere pernor of the profits,2 and his term was regarded merely as a chattel.
§ 14.— The tenant was not made a party to controversies over the title to the freehold, and if a recovery was had against his lord, whether bona fide or covinous, the freehold was discharged of the term.3 The lessee was remediless4 until the statute of 21 Henry VIII, c. 15, allowed him to falsify fraudulent recoveries.5 If the tenant was evicted by his lessor, he had a writ of covenant against him by which, under the old practice, he recovered the term as well as damages;6 but, if ousted of his possession by a stranger, he was, prior to the time of Henry III, without remedy. He had, indeed, his writ of covenant against his lessor, but his only recovery was damages. He did not regain the term or possession.7 Such a remedy was obviously inadequate, and the lessee frequently recovered nothing on his judgment.8
§ 15.— During the reign of Henry III, however, a writ was introduced by Walter de Merton or William Moreton,9 chancellor of that king, which furnished the lessee, or termor, a remedy against any one who, claiming from his lessor, evicted him. By this writ, which was called “Quareejecit infra terminum,” the plaintiff recovered damages for the loss of so much of the term as the defendant had wrongfully withheld, and the sheriff put the lessee in possession for the unexpired portion of the term.
§ 16.— This writ required the defendant to show wherefore he deforced the plaintiff of certain premises which C. had demised to plaintiff for a term not yet expired, within which term the said C. sold the lands to the defendant, by reason of which sale the defendant had ejected the plaintiff.1
§ 17.— It is to be noted that the writ ran, “by reason of which sale the defendant, etc.” According to the authorities, it was a very essential part of the lessee’s case that he should show that the defendant claimed under the lessor, for the writ would not lie against a stranger who ejected the lessee, and who, in so doing, did not rely upon any privity of title or estate with the lessor.4
Mr. Reeves5 quotes Bracton as authority for the statement that the writ lay against any person who ejected the lessee, but a careful examination of Bracton’s language has shown that he did not consider it so large a remedy.6 The ancient authorities seem to be overwhelming in support of the view that the lessee must show that the defendant claimed under the lessor.7
Furthermore, it is difficult to imagine any reason for the introduction of the writ of ejectione firmæ more than half a century after quare ejecit was devised, if the latter writ would run against a stranger.
§ 18.— The title of a lessee or tenant for years was not, as yet, of sufficient importance to receive any consideration from the courts in actions affecting real property, nor was the lessee allowed to make his precarious estate the basis on which to raise or discuss questions of title to land with a stranger. That duty devolved upon the freeholder or lord, and the lessee’s redress, as against a stranger, was to induce the lord to institute a real action to regain the freehold. If the lord or freeholder neglected to institute the action, or, as frequently occurred, was in collusion with the stranger, the unfortunate tenant for years next applied to a court of equity, to compel a specific performance of the lease or contract by the lessor,1 and as against strangers for a perpetual injunction to quiet the possession.2
§ 19.— During the reign of Edward II, or the early part of the reign of Edward III, a new writ made its appearance, which gave the termor or tenant for years a remedy against strangers, who, not claiming under the lessor, entered and evicted the lessee. This new remedy was in its nature a writ of trespass. The first mention of it in the reports refers to it simply as a writ of trespass.3 Later it acquired the name of ejectione firmæ. The purpose of the writ was to give the plaintiff damages for the injuries inflicted upon him in being evicted from his possession by the defendant.4
§ 20.— The writ required the defendant to show wherefore, with force and arms, he entered upon certain lands which C. has demised to plaintiff for a term not yet expired, and ejected the said plaintiff from his farm. There was usually a clause, charging that the defendant had carried off the plaintiff’s goods and chattels, and often a clause declaring that he had occupied the premises for a long time.1 The process, as upon all writs of trespass, was by attachment, distress, and outlawry.
§ 21.— Blackstone says, that, “For this injury (i. e., ouster or amotion of possession from an estate for years) the law has provided him [the lessee] with two remedies, according to the circumstances and situation of the wrong-doer: the writ of ejectione firmæ, which lies against any one—the lessor, reversioner, remainderman, or any stranger, who is himself the wrong-doer and has committed the injury complained of; and the writ of quare ejecit infra terminum, which lies not against the wrong-doer or ejector himself, but his feoffee or other person claiming under him.”2 This distinction is not warranted by the authorities, and the commentator’s position is not sustained by the form of the writ quare ejecit infra terminum, which alleges an ejectment by the defendant. The entry and wrongful act of the defendant created the cause of action against him, not any act of his lessor. It would be extraordinary if an alienee of a wrongdoer was liable in damages for the torts committed by his alienor. Damages always constituted a part of the recovery, and when the term had expired the only recovery in quare ejecit.3
§ 22.— The writ of ejectione firmæ issued in all cases except that where the ejector claimed under the lessor resort was usually had to the older writ of quare ejecit infra terminum. Even the grantor was liable to be sued on this writ, notwithstanding the old doctrine that a man could not enter, vi et armis, into his own freehold.4
§ 23.— In the action of ejectione firmæ, the plaintiff at first only recovered damages, as in any other action of trespass. The remedy of damages was, however, often inadequate. The courts, consequently following, it is said, in the footsteps of the courts of equity,1 and probably by analogy with the form of recovery in quare ejecit, introduced into this action a species of relief not warranted by the original writ, nor included in the prayer of the declaration, which sounded for damages only, and was silent as to any restitution—viz., a judgment to recover the term, and a writ of possession thereupon. Possibly the change was inspired by jealousy of the chancery courts.2
§ 24.— It cannot be stated precisely when this change took place. In 1383 it was conceded by the full court that in ejectione firmæ the plaintiff could no more recover his term than in trespass he could recover damages for a trespass to be done.3 The decision shows that the point was then debated. The same doctrine was held in 1455 by one of the judges.4
§ 25.— But in 1468 it was agreed by opposing counsel that the term could be recovered, as well as damages.5 The earliest reported decision to this effect was in 1499,6 and is referred to by Mr. Reeves as the most important adjudication rendered during the reign of Henry VII,7 for it changed the whole system of remedies for the trial of controverted titles to land, and the recovery of real property.
§ 26.— The result was not foreseen at once, but in the next reign the action of ejectment came to be commonly applied to the trial of titles. Real actions disappeared save in a few cases where ejectments would not lie, and in the reign of Elizabeth were practically supplanted by the action of ejectment.1 Real writs gradually sank into disrepute, and at length were chiefly resorted to by speculators and unprincipled practitioners of the law to defraud persons of low condition of their substance under pretense of recovering for them large estates to which they had no color of title.2
The Massachusetts Commissioners observe, (1834)3 that “the real actions provided by the common law have been very little used in England for the last three centuries. Hence it has followed that the law relating to these actions has long ceased to be familiar to the members of the profession; and was to be sought for when wanted, in books which at first view appeared to many readers uninteresting and even repulsive.”
§ 27.— Blackstone describes the practice under this new writ as follows:4 “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. . . . When . . . 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 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 his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages.”
§ 28.— The plaintiff was required to show that he was on the land rightfully, and that his lessor had executed a valid lease. The title of the lessor, therefore, became an essential part of the plaintiff’s case. An actual and formal entry by the lessor was necessary, for, by the old law, one conveying an interest in land, when out of possession, was guilty of maintenance, a penal offense. 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.1
§ 29.— An actual ouster, by the tenant in possession was not requisite, for, if, after the lessee’s entry under the lease, the tenant remained on the land, he was deemed, without any other act, to have ousted the lessee.2
§ 30.— It is matter of deep regret that the courts did not require proof that the ouster had been committed by the tenant in possession of the premises, for he was, of course the person most interested in opposing a change of possession. It was held in 1608, that the servant of the tenant in possession was a sufficient ejector;3 but the line was not drawn even here. Any one who came upon the land by chance after the sealing and delivery of the lease, with no intention of disturbing the possession of the lessee, was considered a sufficient ejector to be made defendant.1
§ 31.— The action as thus regulated was liable to great abuse, for the tenant could be turned out of possession without any notice of the suit, or opportunity of asserting or defending his title, on a judgment rendered by default against an ejector with whom he had no interests in common. The ejector was, in many instances, not affected by the judgment, and being, as a rule, friendly to the plaintiff, he frequently suppressed or concealed from the party in possession all knowledge of the suit.
§ 32.— The abuses resulting from these “clandestine ejectments” led to the establishment of a rule that no plaintiff should proceed in ejectment to recover the land against a casual ejector, unless notice of the suit was first given to the tenant in possession, if any there were.2 The courts refused to sign judgment against the casual ejector unless proof of such notice was produced.3 The tenant in possession was uniformly admitted to defend upon his undertaking to indemnify the defendant against the cost of the suit. The delivery to the tenant of the declaration, being the process for summoning the interested party into court, resembled the service of a writ, and as it constituted the only warning of the claimant’s proceedings which the tenant in possession received, the courts were careful to see that a proper service or delivery was made.4
§ 33.— Much trouble and inconvenience, however, attended the observance of the different formalities. If several persons were in possession of the disputed lands it was considered necessary to execute separate leases upon the premises of the different tenants, and to commence a separate action upon each lease.5 The remedy was as yet scarcely so simple and expeditious as to fully satisfy practitioners who were seeking relief from the entanglements of real writs.
§ 34.— If a defense was interposed, the plaintiff was obliged to establish four points to maintain the action, viz., title, lease, entry,1 and ouster.2First, he was compelled to show a good title in his lessor. Secondly, that his lessor, having such title, made a lease to him for a term not yet expired. Thirdly, that the plaintiff took possession under the lease. Fourthly, that the defendant ejected him.
§ 35.— To put the question of title to land solely in issue, and to eliminate all other controversies which might arise under this practice, a new feature was ingrafted upon the action by Lord Chief Justice Rolle, who presided in the court of the Upper Bench in the time of the Protectorate. We have seen that permission was granted by the court to the tenant in possession to defend the ejectment suit only as a matter of favor. The courts could, therefore, couple with the granting of this favor any equitable conditions that seemed proper.
§ 36.— Accordingly the practice invented by the Chief Justice, and afterwards generally adopted by the courts, was to require the tenant, as a condition of making him a party, to enter into a rule, called the consent rule, by which he agreed to confess at the trial the lease, entry, and ouster, and to insist and rely solely upon his title. A further condition was imposed that if the defendant broke this engagement at the trial he should pay the costs of the suit, and allow judgment to be entered against the casual ejector. This rule was considered highly reasonable because when the plaintiff had sealed the lease upon the land any person who came thereon animo possidendi, was, in strictness of law, an ejector, and, therefore, when any other ejector was placed in his stead it was proper that the courts should not allow him to exact proof of an actual entry, demise, and ouster; these being nothing more than mere forms devised to bring up the question of title, and which it would have been unnecessary for the plaintiff to establish against the casual ejector who would have allowed judgment by default.1 It is the general belief that this novel practice was introduced about the year 1656, but we find it referred to in a case in Styles’ Reports,2 decided in 1625 in C. B., and as the practice was first established in the Upper Bench the proper date must be somewhat earlier.
§ 37.— The introduction of imaginary or fictitious persons as parties followed,3 and was finally adopted as the universal practice, though reprobated by Blackstone,4 chiefly on the trivial ground that the defendant could not collect his costs from an imaginary person. This objection was overcome by framing the consent rule so that in the event of judgment for defendant the plaintiff’s lessor should pay the costs. The practice was briefly as follows: A., the claimant of the title, delivered to B., the tenant in possession, a declaration in ejectment, in which John Doe (or Goodtitle) and Richard Roe (or Badtitle) were respectively plaintiff and defendant. John Doe declared on a fictitious lease or demise of the lands from A. to himself for a term of years, and alleged that during the continuance of the term he was ousted from possession by Richard Roe. The title of the action then stood John Doe in the demise of A. against Richard Roe. To the declaration was annexed a notice signed by Richard Roe and directed to B., informing him as “a loving friend” that he (Roe) had been sued as a casual ejector, and advising B. to appear and cause himself to be made a defendant in his stead, otherwise he, Richard Roe, would suffer judgment to be entered by default, and B. would be turned out of possession.1 The latter part of the notice, to the effect that unless the tenant defended his title he would be turned out of possession, was considered material,2 for if the notice did not sufficiently apprise him of the consequences of his default the courts would probably have restored the tenant to the possession if he had been irregularly deprived of it by such a proceeding. As under the former practice, proof of service of the declaration and notice on B. was an essential prerequisite to the entry of judgment against the casual ejector. If there was no tenant in possession judgment could not be entered. Consequently in cases of vacant possession the old practice was followed, under which notice was required only in cases where there was a tenant. The plaintiff, on resorting to the old practice, was of course compelled to prove an actual lease, entry, and ouster.
§ 38.— If B. failed to appear, judgment was entered by default against the casual ejector. But, on appearing and entering into the consent rule, B. was substituted as defendant in place of the casual ejector, and could plead the general issue. If B. failed to appear on the trial and confess lease, entry, and ouster, the plaintiff was necessarily nonsuited, because the fictitious lease, entry, and ouster were not susceptible of proof.
§ 39.— By indorsing this cause of nonsuit on the postea the plaintiff was entitled to judgment against the casual ejector,3 according to the condition imposed upon the tenant when he entered into the consent rule. A judgment against the casual ejector would be stricken out even after the lapse of several terms, upon the application of the real defendant if the latter was guiltless of laches, and made the application as soon as he had actual notice of the suit.4 Though the declaration was served only on the tenant in possession, the landlord was admitted to defend5 with the tenant, and not in his stead.1 After the statute, 11 Geo. II, c. 19, § 13, the landlord was admitted to defend instead of, as well as with, the tenant in possession. Who was a landlord so as to be entitled to defend, was a subject of much contention in the courts,2 though the term was ultimately held to include every person whose title was connected and consistent with the possession of the occupier.3
§ 40.— If the plaintiff recovered judgment either by default or after contest and verdict, a writ habere facias possessionem was issued to the sheriff to put him in possession. This writ subserved in ejectment somewhat similar functions to an habere facias seisinam in a real action, or a writ of assistance in equity.4
§ 41.— The judgment, however, did not establish the title or right of property of the plaintiff to the land. He recovered the possession but not the seizin. He became possessed “according to his right.” If he had a title in fee simple, he became thereby seized in fee simple; if he had a chattel interest he was in as a termor, but if he had no title he was in as a trespasser,5 except that he was not liable in trespass for such an entry.
§ 42.— The judgment was not conclusive upon the title or right of property, even between the parties.6 The action could be repeated and the same questions retried indefinitely,7 because there was no privity between the successive fictitious plaintiffs, and the record and judgment, unlike a real action, did not reveal the nature of the title that had been established upon the former trial. Each successive ejectment was founded upon a new lease, entry, and ouster. The title was never formally or directly in issue, but was tried collaterally, or brought in question obliquely.1 The gist of the action was the trespass of the defendant and the plaintiff’s right of possession. Every fresh trespass was a fresh cause of action. As the right of property might be in one person, the right of possession in a second, and the actual possession in a third, a judgment for the possession did not necessarily conclude the title. Under the feudal system a peculiar sanctity attached to a man’s right of possession of land, and when ejectments were introduced the courts were reluctant to hold that he must stake his possession upon the results of a single trial, but inclined to afford him ample and repeated opportunity to exhibit his title and prove his rights.
§ 43.— When this question of the conclusiveness of the judgment in ejectment came up in the Supreme Court of the United States, it was decided that, where the fictitious scaffolding of lease, entry, and ouster had been demolished, and the parties made the issue in their own names, the judgment was conclusive without being made so by statute.2 Evidently the conclusion the court reached was that the inconclusiveness of the judgment was attributable to the fictions. The principles of this case, though undoubtedly sound, have not been universally acknowledged.3
§ 44.— The general policy in America has been to make the judgment in ejectment conclusive upon the title by statute, the defeated party being allowed one new trial as of right, and in some States still another trial in the discretion of the court for cause shown. This latter feature is peculiar to ejectment, and may be traced back to the old feudal idea of the sanctity of the tenure of real property. The policy is attributable either to distrust of the certainty of absolute justice in the courts, or to a disinclination to force the owner of land to risk his rights to his possessions upon a single trial.1
§ 45.— Lord Coke strenuously opposed the adoption of ejectments,2 because they introduced “infiniteness of verdicts, recoveries, and judgments,” and “sometimes contrarieties of verdicts and judgments, one against the other,” in one and the same suit; and because the suits could be repeated for thirty or forty years, to the utter impoverishment of the parties, all of which tended “to the dishonor of the common law, which utterly abhors infiniteness and delaying of suits, wherein is to be observed the excellency of the common law, for the receding from the true institution of it introduces many inconveniences, and the observation thereof is always accompanied with rest and quietness, the end of all human laws.” Yet in real actions, to which this great lawyer clung so tenaciously, the judgments were not always conclusive, and, as was decided in the case just cited,3 did not bar new actions of a higher degree or nature. If ejectments could be repeated infinitely, a single real action could be prolonged for a lifetime. That the excessive technicalities incident to real writs tended to merge the end in the means, can be well illustrated by an extract from an accurate and highly respectable writer on real actions. Speaking of writs of formedon, Mr. Booth said, “I shall here at least give some light how long these actions may be regularly delayed before any judgment can be given in them, which is much for the advantage of the tenant, who ordinarily desires to keep the possession as long as he can.”4 The learned writer keeps his promise by a recital of the dilatory methods employed, and then states that “if there be many tenants and vouchers to be vouched over, it makes the delay possibly as long as the parties live, though the suit continue many years.”5
Even the opinion of so distinguished and able a lawyer as Coke concerning the transcendent merits of real writs cannot be accepted against this unfavorable recital of the abuses connected with the system.
§ 46.— After a suitor in ejectment had prevailed in several trials, he applied to a court of chancery for a perpetual injunction against further ejectments, which that court, as a rule, seems to have been reluctant to grant, because every new ejectment supposes a new demise, and the costs were a recompense for the trouble and expense to which the possessor had been put.1 The House of Lords, upon appeal, granted an injunction in the case of Earl of Bath v. Sherwin,2 against further ejectments after five verdicts, in as many successive ejectments, had been rendered in three different counties in favor of the defendants.
§ 47.— An instructive and curious case in our own reports bearing upon this subject is Strother v. Lucas,3 decided in the Supreme Court of the United States in 1838. The controversy was before the same court in 1832.4 The court refers to the former decision and reaffirms the doctrine that a judgment in ejectment is not conclusive upon the right either of possession or of property, and says that the case now presents new features which the court deems it proper to pass upon and settle, otherwise a court of chancery might not think it proper to enjoin further suits “so long as new or material facts could be developed, or pertinent points of law remained unsettled.” The court then proceeds to clear the way for a perpetual injunction against further ejectments by discussing and deciding in all their bearings the various questions involved. This decision, it should be observed, was made before the question was raised as to the conclusiveness of the judgment, where the issue is between the real parties in interest, in their own names.
§ 48.— Though the general form of proceeding in ejectment was settled in the time of Charles the Second, yet the nature of the action was not clearly understood, nor the rules governing it definitely established until the beginning of this century. The changes which the remedy has undergone both at the hands of the courts and of the legislatures demonstrate that it never could have been regarded as an entirely satisfactory form of procedure.
§ 49.— The courts adopted an arbitrary system of regulating the action by permitting persons who had not been made parties to become defendants, and continued to exercise this jurisdiction by adopting whatever rules were thought to best accomplish the ends of justice. Thus, when the plaintiff was an actual person, it was held that his death did not abate the action, for the lessor was really the interested party, and the absurd suggestion that there lived a man of the same name in the county was considered sufficient.1 The plaintiff was not allowed to release the costs, and was held in contempt for so doing;2 and an attorney who assigned for error the death of the plaintiff in ejectment was adjudged in contempt.3
§ 50.— There was a wide divergence between the decisions, the natural result of regulating the action by the mere will or caprice of the judges, who differed frequently as to what decisions in particular instances best accomplished the ends of justice. Some cases were decided upon the theory that the action was, in its nature as well as origin, an action of trespass; that the damages constituted the principal recovery, the restoration of the term and possession being merely an incident.1 Other cases were decided by analogy to real actions.2 Thus it was held that the subject of the action must be demisable, and that the plaintiff must have power to demise.3 On the other hand again an ejectment for a rectory was upheld.4
§ 51.—Introduction of equitable principles by Lord Mansfield.—The action underwent important changes in the time of Lord Mansfield, who declared5 “that he had it at heart to have the practice upon ejectments clearly settled upon large and liberal grounds for advancement of the remedy.” But he brought equitable principles into the trial of this action, as he did into other branches of the law, and favored and encouraged ejectment as an equitable remedy, calculated to subserve the ends of individual justice, rather than as a legal action governed by fixed and positive rules and principles. The judges in his time probably felt at liberty to exercise an equitable jurisdiction over the remedy as applied to land controversies because it was peculiarly their own creation. Thus a fresh ejectment for the same lands would be stayed until the costs of a former unsuccessful action had been paid.6 A mortgagee was permitted to maintain ejectment against a tenant claiming under a lease granted prior to the mortgage, where he gave notice to the tenant that he did not intend to disturb the possession, but only to reach the rents and profits of the estate.7 Nor could the legal estate of a trustee be set up against the cestui que trust,8 and an agreement for a lease was held tantamount to a lease as a defense in ejectment.9 These cases have been overruled in England and in the United States.10
The principles and practice which the Court of King’s Bench, during the career of this illustrious judge, sought to impress upon the remedy have been, in some instances since his time, introduced by statute. The common law has gained fresh vitality and enriched qualities from the transfusion of equitable principles into it. This is especially true with reference to the remedy of ejectment.
§ 52.— Lord Kenyon established the action upon what the common law student would consider a sounder basis. Since his day, when not otherwise controlled by statute, the courts have generally held that the plaintiff’s lessor must establish a legal title. The claimant must have a right of entry, for if he made the lease without entering on the land, it was maintenance, and though in the modern practice an actual entry is unnecessary, yet the right of entry must exist, for that is the question to be tried.
§ 53.— The courts have generally looked beyond the fictitious form of the action, and have taken judicial notice that the real controversy is between adverse claimants to the possession of land; that the plaintiff’s lessor and the tenant in possession (or landlord, if he be made defendant) are the real parties in interest;1 that the legal title must prevail, and that, as the fictions were “fabricated for the mere purposes of justice,” the plaintiff ought not to be defeated in his recovery by technical or captious objections founded on the peculiar and somewhat technical form of the action. It was unnecessary to allege of the day of the ouster.2 The practice became common to allow amendments enlarging the term laid in the declaration when it expired pending the action, Chief Justice Marshall in granting such a motion remarking that there was “every reason for allowing amendments in matters of mere form.”3 The courts, recognizing the fictions as necessary to this form of action, were careful to see that no wrong or prejudice to the parties resulted from the novel character of the procedure.1 Though ejectment actions were in point of form pure fictions, yet in substance and effect they were “serious realities.”2 Even in the time of James I a liberal spirit guided the courts, and minute technical objections to the entry and ouster were disregarded.3
§ 54.— In many respects the rules applicable to real actions have been adopted,4 yet the principles and practice governing personal actions have been in some instances retained unmodified, though apparently not suited to the new issue raised. Thus, unless some statute controls, the description of the premises need not be much more certain than in an ordinary action of trespass. The plaintiff may also recover a part, and in some cases an undivided portion, of the premises for which he declares.
§ 55.— The action is now divested by statute of all its useless forms. The fictitious lease and ouster have been abolished, and the real parties in interest appear in the action as the nominal parties; the defendant being the tenant or person in possession, or the landlord; sometimes even a claimant to the land or one exercising acts of ownership over it.
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§ 64.—Real actions.—Real or feudal actions were the ancient remedies by which the right of property, or of possession, in freehold estates or hereditaments was determined, and the seizin recovered or possession restored.5 The complainant, or party deforced, was called the demandant; the defendant, or party in possession the tenant. The name real action was used in contradistinction to personal actions, founded upon tort or contract, such as trover, assumpsit, or debt. At common law, in purely real actions, the demandant counted for and recovered the seizin of land, or an interest in realty, and rarely proceeded for compensation in damages or for personal property.1 The right to recover damages in real writs was, in some instances, added by statute.
The foundation of a real action is the alleged wrongful occupation and withholding of the demandant’s land by the tenant.2
§ 64a.— In real actions the demandant claims title to lands, tenements, or hereditaments, in fee simple, fee tail, or for a term of life,3 by writ of right, entry, etc., hence they are said by Blackstone to “concern real property only.” Chief Justice Shaw considered that the terms real and personal actions were not used in the statute of Massachusetts regulating costs in the sense contemplated by the common law, and as defined by Blackstone. He said: “The broad distinction which runs throughout the statute, is that between actions in which rights to real estate may be brought in question and tried, and those which affect personal rights.”4
§ 65.— Real actions were classified according to the nature of the demandant’s title, into actions droitural, based upon the demandant’s mere right of title—that of possession being lost—and actions possessory, which involved the right of possession. The former class was subdivided into writs droitural, founded upon the demandant’s own seizin, and writs ancestral droitural, founded upon the demandant’s claim in respect of a mere right which had descended to him from an ancestor. Possessory actions were likewise subdivided into actions founded upon the demandant’s own seizin, and actions predicated upon the seizin of an ancestor.5
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§ 69.—Writs of right.—The most important of the real writs was the Writ of Right.1 This writ was resorted to in the time of the Saxons to recover the right of property in land; the jus proprietatis, or jus merum.2 It would not lie for incorporeal hereditaments, or for any estate less than a fee simple,3 and was the exclusive remedy available to the owner of land who had lost the right to recover it by a possessory action. The judgment was final, and could be pleaded in bar of a fresh suit involving the same controversy, because no other writ could establish any different higher or additional rights. For this reason a writ of right was rarely selected by a demandant who was entitled to prosecute one of an inferior grade.4 The tenant in this writ might give in evidence the title of a third person for the purpose of disproving the demandant’s seizin; and the demandant was permitted to recover a less quantity than the entirety.5
§ 70.—Writs of entry.—Of the possessory actions writs of entry only were adopted in Massachusetts.6 These were of various kinds, according to the nature of the injuries intended to be redressed,7 and were supposed by Blackstone to be the most ancient of possessory actions. Whether or not all the writs of entry were ingrafted into the law of that Commonwealth is a moot question which it is unnecessary now to discuss.8 Mr. Justice Jackson says,9 that writs of entry, as conducted in the courts of his State, were considered more simple, convenient and effectual than the action of ejectment; the writ and declaration were shorter; there were no mysterious fictions to incumber the record, and the judgment effectually settled the right of possession. This opinion was subsequently approved by the Massachusetts Commissioners.1
An equitable estate, we may here observe, will not support a writ of entry;2 and consequently a party sued in this writ cannot defend against the legal title of the plaintiff by showing that he has purchased and paid for the land, and is entitled to a conveyance of the legal estate.3 The remedy for the protection of an equitable interest in land is by bill in equity and not by writ of entry,4 or action at law. In Massachusetts this writ may issue in the form of an original summons or in that of a summons and attachment,5 and can only be maintained against a tenant of the freehold.6
§ 71.—Writs of formedon.—Writs of formedon, the ancient remedies provided for any one having a right to lands or tenements by virtue of a gift in tail,7 were not infrequent in some States. A writ of formedon was sometimes characterized as a writ of right of an inferior character. As late as 1834 a decision was rendered in an action of formedon in remainder in New Hampshire, in which the defense of a common recovery, levied in 1819, was learnedly discussed by court and counsel.8 Writs of this character are, however, wholly unsuited to try titles in this country. The delays and abuses produced by these writs have already been noticed.9
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§ 73.—Ejectment in New England.—Ejectment was already firmly established in England, as the most simple and expeditious method of trying controverted titles, when our Atlantic seaboard was colonized. Yet the New England colonists seem to have been disinclined to transplant and foster the remedy.1 Possibly this is attributable to the fact that every word of the declaration by which the action was commenced was untrue. The stern integrity and simplicity of the Puritans did not relish fictions. Professor Stearns says:2 “We should hardly expect them to resort to the indirect method of making a lease of their lands in order to try the title. And as to the confessing a lease, an entry, and an ouster, which never had any existence in fact, they seem (as we should naturally expect) to have regarded it as a violation of truth, and therefore wholly inadmissible.”
This feeling of aversion to ejectments was not confined to this country, for we find it written, in an English work of reputation,3 that this ingenious and dexterously contrived proceeding “was objectionable, on the ground that fictions and unintelligible forms should not be used in courts of justice; especially when the necessity for them might be avoided by a simple writ so framed as to raise precisely the same question in a true, concise, and intelligible form.”
§ 74.— The inconclusiveness of the judgment4 also tended to render ejectment unsatisfactory. Lands in the new world were of little value, and scarcely worth the trouble and expense of a sufficient number of trials to justify a perpetual injunction against fresh ejectments. Furthermore equity jurisprudence had scarcely any existence in colonial times,5 and has only been introduced into some of our States by legislation of recent date. Hence, according to eminent authority, only two fictitious actions of ejectment upon the English model are to be found in the court records of Massachusetts.1 The commissioners2 even assert that “the action of ejectment has never been in use” in that State “for the trial of titles.”
§ 75.— But the adoption of the intricate system of real actions as practiced in England was wholly impracticable. The sources of information available to the colonists concerning the practice were few and imperfect; many of the real writs were wholly unsuited to try the titles by which the colonial lands were held, and few of the early settlers possessed the critical skill and precision in practice which the successful management of the writs exacted.3 Mistakes and vexatious delays were consequently not infrequent. The colonists were not, however, “bigoted to legal forms.” They abruptly departed from the ancient precedents (intentionally, however, rather than from ignorance, as the result shows) and introduced a loose and irregular system of pleading in real writs, altering and adapting the process and writs so as to satisfy the needs and requirements of settlers in a new country. The English system of real actions was transplanted into the colonies practically divested of aid prayers, vouchers, protections, parol demurrers, and essoins, the cumbersome appendages which destroyed it in England. Hence we have in our jurisprudence the remarkable anomaly of a system of feudal remedies which the mother country abandoned as outgrown, impracticable and useless, “rooted in soils that never felt the fabric of the feudal system.”
§ 76.— The attempt was made to retain what was valuable and useful of the system and to reject what was useless and pernicious.4 The ancient process and forms were very little regarded, and all real actions were called by the general name of actions of ejectment.1 Little or no distinction was made either in the declaration or the pleadings between the different writs of entry, or between possessory writs and the writ of right.2
§ 77.— Though this loose and irregular practice was undoubtedly the cause of many mistakes which the colonists made in determining the rights of litigants, yet had they clung to the established forms, and sought to apply, in their practice, the mass of ancient learning relating to real writs, the system would necessarily have become as vexatious, oppressive, and unpopular as in England.
§ 78.— The feeling in England toward the system of real actions is reflected in the report of the English real property commissioners, in which they conclude that “it would have been beneficial to the community if real actions had been abolished from the time when the modern action of ejectment was devised.”3
§ 79.—Modern changes.—Statutory real actions in various forms are employed in Maine and New Hampshire. A writ of entry, sur disseizin, was recognized as a proper form of action in the latter State.4 Writs of right and of formedon have been swept away in Massachusetts and a statutory writ of entry adopted as the remedy for trying titles in that State. The final judgment rendered on this statutory writ is a complete bar to a writ of right for the same lands subsequently prosecuted in the federal courts.5 The common law remedy of ejectment for the recovery of a term, though rarely used, has never been abolished in that commonwealth.6 The entire system of real actions is superseded in New York by a statutory action of ejectment. In Rhode Island any party having a right of entry may bring ejectment.1 In Connecticut the writ of disseizin is not a fictitious remedy, and is the only real action known to their law, and comprehends “all the actions in England, by writ of right, writ of entry and ejectment, with all the multifarious divisions into which they are branched.”2 In California they have technically “no action of ejectment.” There is said to be as much propriety in calling the action in that State “a writ of entry or an assize, as an ejectment.”3 In Virginia writs of right, of entry, and of formedon, have been abolished, and ejectment, as reformed and corrected by statute, retained. In that State, as in New York and West Virginia, the statutory ejectment may be maintained in the same cases in which a writ of right could have been brought. A controversy over a title in West Virginia, in which the parties proceeded by a writ of right, was decided in 1868,4 but the system of real actions has, since that date, been superseded in that State by statutory ejectment. The influence of the old system is occasionally reflected in the opinions of our courts, and exerts some effect in framing legislative changes in our remedial law, but the general system, with most of its peculiarities, is obsolete.
§ 80.—Trespass to try title.—Injuries affecting real property are chiefly of two classes. First. Those that divest the owner of the possession, and usurp his right of dominion over the property. Secondly. Those that injure the land, or diminish its value, or disturb or impair the owner’s enjoyment of it, without divesting the possession. Trespass, waste and nuisance are examples of the latter class. The former injury, which is attended with amotion from or deprivation of possession, is denominated an ouster, and has been defined to be “a wrongful dispossession or exclusion of a party from real property, who is entitled to the possession.”5 This elementary principle must not be overlooked in considering the form of remedy for the trial of title to land which will next be noticed.
§ 81.— Trespass to try title was substituted for ejectment in South Carolina as early as 1791.1 It was in form an action of trespass quare clausum fregit, except that a notice was indorsed upon the writ to the effect that the action was brought to try the title as well as for damages. This remedy was subject to the principles of law relating to ejectment which, down to that time, had been the action for trying titles to land in that State.2 There were, of course, no fictions in this new action, and the names of the real parties appeared as plaintiff and defendant.3
§ 82.— The plaintiff was compelled to prove a trespass committed by the defendant no matter how trifling. A bare threat made on a rock, the title to which was in controversy, to prevent the plaintiff from fishing there; or obstructing a canoe from landing upon it, was said to be enough evidence to support the action.4 Even the cutting or blazing of a tree was held sufficient.5 The judgment was in form for damages, but the plaintiff, if successful, was entitled to a writ habere facias possessionem. The reader will at once discover, aside from the question of ouster, the close resemblance this form of procedure bore to ejectment both in its nature and uses.6
§ 83.— Manifestly trespass quare clausum fregit was a form of action calculated to redress injuries to real property not amounting to an ouster. This remedy as enlarged by statute in South Carolina under the name of trespass to try title usurped the functions and subserved the purposes of a real action. While evidence of a slight trespass would suffice to raise a controversy over the title, yet mesne profits could not be recovered of the defendant if no actual eviction took place, but only a technical trespass was proved.
§ 84.— The result achieved by the use of fictions in ejectment in England, after many years of effort, was accomplished summarily in South Carolina by a simple statutory enactment. Why the English Parliament and the legislatures of other States of our Union did not enact statutes somewhat similar in character, substituting ouster for trespass, and at a single stroke demolish real writs and the fictions in ejectment is a mystery.
§ 85.— The Legislature of South Carolina solemnly resolved,1 as a justification for the change, that “since the disuse of real actions, the common method of trying the title to lands has been by action of ejectment, which, depending upon a variety of legal fictions, is rarely understood but by professors of the law.” Still, the name of the new remedy, and the practice requiring proof of a trespass, which certainly had no logical or necessary connection with the trial of the title, occasioned some confusion.
§ 86.— The writ of right was never employed in South Carolina,2 and the profession seem to have shunned the whole system of real actions. If the “variety of legal fictions” in ejectment was incomprehensible to the profession in South Carolina, it is certainly easily understood why no effort was made to utilize real writs.
§ 87.— Trespass to try title has at length been swept away in South Carolina, and an action for the recovery of real property substituted in its stead.3
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The essential principles governing real actions, ejectment, and trespass to try title, are uniform in this country as to the interests for which the actions will lie, the titles that will support them, the pleadings, evidence,4 defences, judgments, writs of possession, and new trials. They constitute practically one general method of procedure disguised under a variety of names. For this reason cases decided under the different systems will generally be cited side by side in this treatise.
THE GAGE OF LAND IN MEDIÆVAL ENGLAND1
ECONOMIC and legal development in England is, in certain of its grand outlines, strikingly illustrated by the history of forms of security on property. One sees in England the gradual advance from a natural to a money and credit economy, the progress from the rural and agricultural life of Anglo-Saxon times to the town and national life, with its industry and its commerce, of the centuries that follow the coming of the Danes and the Normans. A heathen and tribal society gives way to Christian and to feudal institutions; and at the same time there is early developed a strong kingship, a strong central government, that is to influence in a masterful way the course of economic and legal history down to our own day. Acting as a check on the growth of local custom and of feudal justice, and making the towns subserve its own economic purposes, this powerful central government has its foreign and commercial policy and its system of Common Law and Equity, with the good right arm of judicial execution to enforce the decrees of its courts:
Unless we err, the English law of gage, like the law of other Germanic countries, starts from the conception, in the Anglo-Saxon days of barter and self-help, that the wed or vadium delivered to the gagee is a provisional satisfaction, a provisional payment, a redeemable forfeit. The res and the claim are regarded as equivalent; and, should the gagor not redeem, the gagee must look exclusively to the res for satisfaction. The gagee has no personal action against the gagor; and the gagor, should he fail to redeem the res, has no right to the surplus, if the res be worth more than the amount of the gagee’s claim. This forfeit-idea is the original idea underlying the wed, and this conception persists. In course of time, with the development of credit and of judicial execution, of varieties of obligation and of forms of action for their enforcement, there branch off two other ideas: (1) the idea that a res of trifling value may be given as a binding contractual form,1 and this at length develops in the English ecclesiastical courts into the formal contract by pledge of faith; and (2) the idea that, if the res be of substantial value, it is merely a collateral security to a personal claim, the gagee being entitled to sue the gagor personally and the gagor having a right to call the gagee to account for the surplus.1 Along with this transformation of the primitive forfeit notion into the idea of collateral security there is another line of development that must be most carefully distinguished therefrom. Inasmuch as the early gage transaction is merely a provisional payment, the property right of the gagee on default lacks the Auflassung, the quit-claim, the final abandonment of all right in the res that is in Germanic law necessary to a complete and absolute title. The gagee cures this defect by going into court and getting the court to declare his title absolute; and, later, by getting the gagor in advance to put a resignatio-clause in the deed itself. By such a clause, however, the gagee evades the obligation that the law has at length imposed upon him of returning the surplus; and the law enters and forbids this evasion.2
It lies beyond the scope of the present paper to prove, by a discussion of English texts, that this has been the course followed by our own law. Keeping in mind, however, the outlines of this general Germanic development, we wish merely to distinguish as clearly as possible the various forms assumed by the English medieval gage of land. A consideration of the many difficult questions connected with the law of securities on land, not only in its historical development, but also in its present-day application to concrete cases that come before the courts, will, it is believed, be rendered all the easier by such a preliminary survey, rapid and inadequate though it be.
It helps to make the various medieval forms stand out sharply, if we group them into gages with immediate possession of the creditor, and gages with possession of the debtor until default; and this is indeed but the fundamental distinction that underlies the fiducia or the pignus and the hypotheca of Roman law,1 the aeltere Satzung and the juengere Satzung of German law,2 the engagement and the obligation of French law.3
Then, looking at execution or the enforcement of the security, we may make several further distinctions. If we adopt for the moment—and it will tend to clearness—the terminology of German legal science, we may classify English forms of security on land with immediate possession of the creditor as usufruct-gage (Nutzpfand) and as property-gage (Proprietaetspfand). In forms of usufruct-gage the creditor has merely a right to take the rents and profits. In forms of property-gage the res itself, either by forfeiture or by sale, may be made to answer the claim of the creditor; if by forfeiture, whatever the value of the land may be, we may call the security a forfeiture-gage (Verfallspfand), and if by sale, with a return of the surplus proceeds to the debtor, the security may be designated as a sale-gage (Verkaufspfand). There may indeed be combinations of the usufruct-gage and the property-gage; and every property-gage with immediate possession of the creditor necessarily involves a temporary usufruct-gage, a right to take the rents and profits until the debtor’s default.4 Speaking now only for the English medieval law, we believe that gages where the debtor remains in possession until default may also be classified, according to this same principle, as usufruct-gage and as property-gage. In other words, whether the creditor take possession immediately or only on the debtor’s default, what the debtor has in reality gaged are either the rents and profits of the land or the property, the res, itself. Finally, from these forms of security proper, where the creditor’s claim may be satisfied, in one way or another, out of the gaged land, we may sharply distinguish cases where all the right the creditor has is to hold the land as a distress, as a simplex namium, as a means of bringing compulsion to bear on the debtor; for here the creditor has no right to take the fruits of the land and no right to obtain the land itself, either on the principle of forfeiture or of sale. Let us first examine briefly the gage with immediate possession of the creditor and then pass on to the gage with possession of the debtor.
Forms of security on land with immediate possession of the creditor are, then, either usufruct-gage or property-gage; or, indeed, combinations of the two.
Both the usufruct-gage and the property-gage are found in the law of the Anglo-Saxon period;1 but it is with the law of the centuries succeeding the Norman Conquest that we are here concerned.
The usufruct-gage assumes two forms, the form depending upon the use that is made of the rents and profits taken by the gagee while the land is held by him. The transaction is a vivum vadium if the parties agree that the rents and profits shall reduce the debt. The transaction is called a mortuum vadium if, on the other hand, the rents and profits do not reduce the debt itself, but are taken in lieu of interest.2
Glanvill states positively that the vivum vadium is a valid transaction; and apparently he means also that the king’s court enforces the terms of the mortuum vadium. The Christian creditor, however, commits a sin in entering into a contract of mortuum vadium because it is a sort of usury; and if he dies before the contract comes to an end, he dies as a sinner and his chattels are forfeited to the king. To all seeming the mortuum vadium, sinful though it be, is the usual contract of the thirteenth century both for Christian and for Jew alike.1
From the usufruct-gage proper must be distinguished the so-called “beneficial lease,” a lease for years purchased outright for a sum of money. This latter transaction serves in the twelfth and thirteenth centuries two important economic ends: It provides the lessor with ready money, and it provides also a form of investment of capital that enables the lessee to speculate on the return of his money with interest out of the profits of the land. There is here no gage in the sense of a security for some personal claim, because there is no debt. For the same reason there is no usury, and in an age when usury is a sin and when the goods of the usurer who dies in his sins are forfeited to the king, the beneficial lease is popular. The one who invests his money in a beneficial lease has too the termor’s possessory protection; and at the end of the term the land goes back to the lessor.2
Coke discusses the vivum vadium of his day as a form of security where “neither money nor land dieth, or is lost”;3 and in modern law the principle of the usufruct-gage underlies the “Welsh mortgage” and “securities in the nature of Welsh mortgages.” In these modern gages the fruits of the land may be taken in lieu of interest only or in reduction of both principal and interest.4
The property gage of the Middle Ages is forfeiture-gage. It assumes two main forms: (1) either the gagee who is given immediate possession must wait until default of the debtor before he can acquire proprietary right; or, (2) the gagee is given proprietary right at once, though under the condition that, if the debt be paid at a certain day, the proprietary right of the gagee shall then come to an end. In either case default of the debtor results in immediate or ultimate forfeiture of the gaged land itself, whatever may be its value, in satisfaction of the debt.
The first of these two varieties of the forfeiture-gage seems to be the usual form in the days of Glanvill and Bracton.
Glanvill, in the tenth book of his treatise, is apparently discussing several forms of gage and combinations of these forms. The usufruct-gage may be vivum vadium or mortuum vadium; but to such a transaction there may be added the possibility that the land itself be forfeited.
The gage may be given for a term, and in such a case the parties may or may not include a clause of forfeiture in their contract. If they include such a clause, this express bargain must be strictly adhered to; this bargain being that, if at the end of the fixed term the debtor do not pay his debt, the gaged land shall then become at once the property of the creditor, to be disposed of as he wishes.1 Here no judgment of the court is necessary. By operation of the clause of forfeiture, the gagee becomes suddenly seised in fee, with the freeholder’s rights and remedies. On the other hand, the contract may contain no such clause of forfeiture; and here the creditor must go into court and there must be certain legal proceedings before the gaged land can be forfeited to him for the debt. These proceedings are as follows: When the debtor fails to pay at the end of the term, the creditor must sue him. The debtor is then compelled to appear in court in answer to a writ ordering him to “acquit” or redeem the gage. Once in court the debtor will either confess or deny the fact of gaging the land for the debt. If he confess it, he has thus, says Glanvill, confessed the debt itself; and he is ordered by the court to redeem the gage within a “reasonable” time by payment of the debt, the court at the same time declaring that, in case of default in payment at the end of this new period, the gaged thing itself shall become the property of the gagee and thus forfeited for the debt. Should, however, the debtor deny the gage for the debt, he may then acknowledge that the land in question is his property and offer some excuse for its being in the possession of the other party. Should he confess in court that the land is not his property, the creditor is at once allowed by the court to dispose of it as his own. If the debtor assert that the property in question is his own, but deny both the gage and the debt, the creditor must then prove both the debt and the gage of the specific property in dispute for this debt.1
If now the gage be given indefinitely or without a term, the creditor may at any time demand the debt. Apparently this means that the creditor can at any time go into court and get a judgment ordering the debtor to redeem within some fixed and reasonable period; the court at the same time declaring that, if the debtor fail to do this, the creditor may do anything he pleases with the gaged land, that is, that the land will on default be forfeited.2
Unless, therefore, the parties stipulate that the gage shall be a pure usufruct-gage, we see that, whether the gage be for a term or without a term, and whether the contract contain the forfeiture-clause or not, the gaged land may be forfeited for the debt; the gage thus assuming the form of property-gage.
The possession of the gagee is called seisina, a seisina ut de vadio, but it is quite unprotected by any legal remedy. The gagor remains seised of his freehold, and, should some third person unjustly turn the gagee out of the land, it is the gagor who has the right to bring the possessory action of Novel Disseisin. The gagor, not the gagee, has indeed been disseised. Furthermore, if the gagor himself eject the gagee, the latter still has no remedy by which he can recover possession.1
Glanvill explains this by saying that what the creditor really has a right to is not the land, but the debt itself; and that, if ejected by the gagor, the gagee should bring an action of Debt, the court compelling the debtor to make satisfaction. This argument is, however, unsatisfactory; and the real reason why the gagee is not given possessory protection is to be sought elsewhere. As pointed out by Pollock and Maitland, the king’s justices in the time of Glanvill are experimenting with the new possessory actions. They are agreed that the freeholder shall have the assize of Novel Disseisin; but they are not quite sure whether the gagee really and truly has a seisina that calls for protection. Influenced perhaps by theories of the Italian glossators as to possessory protection, they end in refusing the gagee a remedy.2
As soon as the debt be discharged or payment properly tendered, the gagee is under the duty of giving up possession to the gagor; and, should the gagee maliciously retain possession, the gagor may summon him into court by writ. If it be determined that the land is held as a gage and not in fee, it must be given up to the gagor.3
The creditor may enforce his personal claim by bringing the action of Debt. His right to the gage on default may be enforced by the foreclosure procedure we have just discussed.4
To all seeming the Glanvillian gage soon becomes obsolete owing to the failure of the king’s court to protect the gagee’s seisina ut de vadio; and indeed the attempt to treat the gagee’s rights in the land as rights of a peculiar nature is soon given up, the gagee being now given some place among the tenants.1
In the age of Bracton the popular form of gage is a lease for years to the creditor, under the condition that, if the debt be not paid at the end of the term, the creditor shall hold the land in fee. During the term the gagee has the possessio or seisina of a termor, and this possession is protected by writ. On default of the debtor the fee shifts at once and without process of law to the creditor; the fee, the land itself, is thus forfeited for the debt.2 Here we have a form of the property-gage very much like the Glanvillian gage for a term with clause of forfeiture; and indeed the chief difference is the protection thrown about the creditor’s possession in the later form.
This early form of the property-gage, the gage of Glanvil and Bracton, is not, however, to be the basis of the later law. Legal theory of later times does not tolerate this thirteenth-century method of allowing a term for years, a “chattel real,” to grow into a “freehold estate” on the mere fulfilment of a condition.3 Indeed, the classical gage of English law is not a conveyance on condition precedent, but a conveyance on condition subsequent, the mortuum vadium or mortgage that is expounded by Littleton and the judges of the later common law.
This later form of gage is a conditional feoffment; the condition being one for redemption and defeasance on a specified day. The creditor acquires at once an estate in fee, though this freehold estate is subject to the condition. If the debt be paid on the day, the feoffor, that is, the debtor, or his heirs may re-enter; if not, the freehold estate of the feoffee, the creditor, is entirely freed from the condition, thereby becoming absolute.4 In other words, the gage of the later common law is a property-gage, a form of forfeiture-gage; and at the same time there is combined with this forfeiture-gage a temporary usufruct-gage in the nature of the Glanvillian mortuum vadium, the rents and profits taken by the mortgagee in possession until the day of payment not going in reduction of the debt.1
Though the writers of the twelfth and thirteenth centuries do not discuss this form of the property-gage, probably because it falls under the general theory of conditional gifts, it is nevertheless found in the sources of the law long before the time of Littleton,2 and its history seems indeed to reach back to a distant past.3 Its transformation in modern times will be adverted to subsequently.
The English gage of land with possession of the debtor until default is to all seeming developed later than the gage with immediate possession of the creditor; the origin of this later form of security for loans being directly connected with the history of the process of judicial execution.4
Before, however, taking up this phase of the development, we wish to tarry a moment in the realm of medieval “charges,” “liens,” “burdens” and “encumbrances” on land that are created for purposes other than the securing of debts owing to creditors. Here, in certain instances at least, a right in rem is created in favor of one who does not take immediate possession of the burdened land; but different opinions may perhaps be held as to whether in such cases there is really a gage of land in the sense of a security for a personal claim. Thus, for instance, the warranty of title to land conveyed may create a charge on other land remaining in the hands of the warrantor, and the endowment of the wife at the door of the church may create a charge on all the land of the husband. In such cases, should the feoffee be ousted or should the husband die in the life-time of the wife, the land previously bound by the warranty or by the endowment may be followed into the hands of third persons and made to answer the claim of the feoffee or the widow. To give immediate possession of the burdened land to the feoffee or the wife would be needless and indeed without meaning; the creation of the charge, the right in rem, is all that is necessary.1
In the medieval period warranty is the obligation of defending the title to land conveyed, and, should the defense fail, of giving to the evicted owner other land of equal value in exchange, an excambium ad valentiam;2 the warranty being generally enforced by voucher or by the writ of warantia cartae, sometimes it would seem by writ of Covenant.3 Besides the warranty binding only the warrantor and his heirs, warranty may in the thirteenth century create also, as we have just stated, a charge or lien on other lands remaining in the hands of the warrantor that is enforceable against the whole world. In the words of Bracton: Non solum obligatur persona feoffatoris . . . , poterit etiam tenementum obligari cum persona tacite vel expresse.1
This lien or charge, this obligatio rei,2 may arise, therefore, out of an express warranty or out of a tacit warranty. An express warranty binds a certain designated tenement.3 A tacit warranty implied in a feoffment binds, says Bracton, all the other lands that the feoffor has on the day of the feoffment.4 That the feoffee of the warrantor acquires a right in rem is shown by the fact that land bound by warranty passes to everyone with the charge. The land is bound in the hands of the warrantor’s heirs. It may be followed into the hands of assigns, and even into the hands of the king and the chief lord, who has it as an escheat. Should the warranty fail and should the burdened land be called for to answer the claim of the warrantor’s feoffee, every possessor must give up the land.5
In the legal literature of the twelfth and thirteenth centuries the dos is represented as a gift from the bridegroom to the bride ad ostium ecclesiae6 at the time of the marriage ceremony, and yet as a gift which the law compels the bridegroom to make.7 The gift may take the form of a dower of certain definite lands, but never more than a third of all the lands of the husband; and in this form the dower is called a dos nominata.1 A dos rationabilis, on the other hand, is in the twelfth century the dower of a third of all land in the freehold seisin of the husband on the day of the nuptials; and, when the husband fails to give a dos nominata, it is assumed by the law that he wishes to give a dos rationabilis.2 In the time of Britton the wife has a right, in the case of a dos rationabilis, to a third of all the lands in the seisin of the husband during his entire life;3 and this is the rule of the common law.4
In the time of Bracton the wife seems to acquire at once, by the giving of a dos nominata, “true proprietary rights” in the lands. Unless she has joined with her husband in the levying of a final concord before the king’s justices, she is entitled, on his death, to recover the very land designated from any one who now has it in his hands. If the tenant be sued by the woman, he will vouch the heir of the husband. The heir will probably be obliged to warrant the gift of his ancestor, and, should he fail in this, he must give the evicted tenant a compensation in value out of other lands of the ancestor. This, however, does not concern the wife at all. Her right is to the land named by her husband and she can evict the tenant.5
If one-third of the land that the feoffee holds under the feoffment from the husband be claimed by the widow as dos rationabilis, and if the feoffee vouch the heir to warranty, the widow must see that the heir appears in court, for the heir is also the warrantor of her dower. If it be confessed by the heir that sufficient other lands have come to him to endow the widow, the feoffee will be allowed to keep his land and the widow will be given a judgment against the heir. Should, however, the heir have no other lands, then the widow can recover a third of the land held by the feoffee. The feoffee will get judgment against the heir; and, on the death of the woman, the feoffee will get back the land that the widow has been holding as dower. As expressed by Pollock and Maitland: “The unspecified dower is therefore treated as a charge on all the husband’s lands, a charge that ought to be satisfied primarily out of those lands which descend to the heir, but yet one that can be enforced, if need be, against the husband’s feoffees.”1
Again, it is not uninstructive to observe that feudal services and rents-service are in the medieval law a “charge” or “burden” on the land held by the tenant.2 Should the tenant make default, the lord may not only distrain the chattels that are on the encumbered land, but he may reach the land itself. The tenement may be forfeited to the lord; or, the lord may enter into possession and reduce his claim out of the fruits of the land; or, he may enter and hold the land as a mere distress, with no right to keep it as a forfeiture and with no right to satisfy himself out of the profits.3
By the feudal law failure of the tenant to perform the services results in a forfeiture of the land; but only after the tenant has been adequately warned and after judgment of the lord’s court. If the tenant be summoned three times without responding, the feudal law enables the court to put the lord into possession for a year. Should the tenant redeem within the year, possession is restored to him; but should he not redeem, he loses the land.4
Forfeiture may also be enforced by writ of cessavit per biennium, introduced by statute in the reign of Edward I. If the tenant fail to perform his services or pay his rent for two years, and if there be insufficient chattels for a distraint, the lord may obtain a writ of cessavit out of chancery. This writ enables the lord, if the tenant still fail to redeem by tendering his arrears and damages before judgment, to recover the land or fee itself in demesne. The land thus adjudged to the lord is forfeited for ever, for the tenant has now no right to redeem.1
What practically amounts to forfeiture is also found in the Kentish custom of gavelet. If the tenant of land held in gavelkind falls into arrears with his services and rents, the lord is to get permission of his own Three-Weeks-Court to distrain the chattels of his tenant found upon the tenement; and the lord in thus seeking to distrain is to be accompanied by good witnesses. This attempt to distrain is to be continued for four sessions of this court of the lord, and if before the fourth court sufficient chattels cannot be found, the court then awards that the lord may take the tenement into his hands en noun de destresse ausi cum boef ou vache. The lord may keep the land in his hands a year and a day, but without fertilizing it; and within this period the tenant may, if he pay his arrears and make reasonable amends for the withholding, enter once more into his land. If, however, the tenant do not thus redeem, the lord may then make all the proceedings public at the next county court, and in the session of his own court following this public declaration it is finally awarded that the lord may enter into the tenement and cultivate it, taking the profits as in his own demesne (si come en son demeyne).2
If now the tenant comes after this award of the lord’s court and wants to get back the tenement, thus treating the whole transaction as in effect a mere pledge quousque, he is obliged, before this can be done, to perform the services and pay the rent, and must in addition make proper amends to the lord for the withholding of the services or rent.1
The copies of the custumal differ, however, as to just what amends the tenant must make, a good deal depending apparently upon an old Kentish by-word printed in the custumal; and owing, it would seem, to this uncertainty as to the proper reading of this by-word, it has always been a mooted question whether the Kentish gavelet was intended as a continuing security, with a right of redemption even after adjudication to the lord, or whether there was an absolute forfeiture. According to the generally accepted reading of the by-word, the tenant seems to have a theoretical right to redeem by paying the arrears nine—or eighteen?—times over, and in addition a wergild of £5. As legal scholars have pointed out, this is practically an impossible condition, and there is in reality a forfeiture of the tenement, though the ancient law in its forbearance is loath to say so.2
Our sources leave us in no doubt, however, that in London the medieval procedure by gavelet may result in absolute forfeiture. According to the Statute of Gavelet,3 usually attributed to the tenth year of Edward II.’s reign, if the rents be in arrear, the lord shall first distrain all the chattels on the land, and then, if these be insufficient, he may begin proceedings in gavelet by a writ de consuetudinibus et servitiis. If the tenant deny the fact that he owes services or rents, the lord must then prove in court by witnesses that he is seised of the services or rents now in arrear; and if this be proved, the lord shall then recover his tenement in demesne by judgment of court. If, however, the tenant acknowledge the services or rents and the arrears, then by judgment of court the arrears shall be doubled, and the tenant must also pay a fine to the sheriff for the wrongful withholding of the rents. If the tenant do not come, after due summons, to render the doubled arrears and to pay the fine, either because he is unwilling or unable to make satisfaction, the land shall be delivered to the lord by the court to be kept in his hands for a year and a day. Within this period the tenant may redeem his land by rendering the doubled arrears and paying the fine. But if he fail thus to redeem within the year and day, the land shall then by judgment of court be forfeited to the lord for good and all. The land shall then be called forschoke, because, for default in the services, it shall remain to the lord for ever in demesne.1
The common law will not allow forfeiture of the land for default of the tenant in performing his services or paying his rent; to effect a forfeiture it is necessary to introduce from the Roman system the writ of cessavit per biennium, which we have just adverted to. All that the king’s court in the days of Glanvill and Bracton will permit is a simplex namium of the land. The lord must first distrain the chattels of the tenant; and only after this has been done may the lord get a judgment from his seignorial court permitting him to distrain the tenant by his land. By virtue of this judgment the lord is able to seize the land and to hold it as a simplex namium, as a means, that is, of compelling the tenant to render the arrears. The lord cannot obtain the land as a forfeiture, and he has even no right to take the profits. The tenant retains his right to redeem; and whenever he is willing and able to satisfy the claim of the lord, the lord must give back the land.2
In the law set forth by Littleton and Coke it is sometimes possible for the one entitled to rent to satisfy his claim out of the profits of the land: thus, where a feoffment is made reserving a certain rent, upon the condition that, if the rent be in arrear, the feoffor or his heir may enter and hold the land until he be satisfied or paid the arrears. In this case, says Coke, “when the feoffor is satisfied either by perception of the profits or by payment or tender and refusall or partly by the one and partly by the other, the feoffee may re-enter into the land.”1
The history of gages to secure loans, where the debtor remains in possession of the gaged land until default, begins with the coming in of the Jews and of foreign merchants from Italy and other countries. In the centuries that immediately follow the Norman Conquest it is English policy to foster industry and commerce. Foreigners are induced to visit the realm, and it is sought to make up for deficiencies in English production by bringing in the goods of other countries. Systems of banking and insurance take root. In the interest of creditors new and more efficient processes of judicial execution are established. The Exchequer of the Jews is set up as a branch of the Great Exchequer. A system of registering debts owing to Jewish creditors and the gages that secure them is perfected, this system allowing a free buying and selling of Jewish obligations and efficient execution on default.2 The needs of other creditors are supplied by giving them, on judgments or enrolled recognizances of debt, new writs of execution in addition to the old common law writs of fieri facias and levari facias; these new writs enabling the creditor to reach the lands and chattels and body of the debtor. The writ of elegit is introduced by the Statute of Westminster the Second for creditors generally. Merchant creditors, if they get their debtors to make recognizances of debt before courts of record or certain public officials, may obtain, on the default of their debtors, even more effective remedy. Merchant creditors may reach, among other things, not only half the land, as under the Statute of Westminster the Second, but all the land of the debtor. These merchant securities are known as “statutes merchant” and “statutes staple,” the former being introduced by the Statute of Acton Burnel and the Statute of Merchants in the reign of Edward I., the latter by the Statute of the Staple under Edward III. The advantages of the merchant securities are given to all creditors by the Statute 23 Henry VIII., introducing the security known as a “recognizance in the nature of a statute staple.”1
A gage of land with possession of the debtor to secure money obligations is therefore rendered necessary and possible by this development of credit and of processes of judicial execution; and, very largely for the benefit of the mercantile classes, an hypothecation of land may now, in the later Middle Ages, be created by judgment and by the registration or enrolment of contracts under seal. The publicity essential to this form of gage is thereby obtained; but it should be well observed that the new security breaks in upon the old law with its restraints on alienation and its requirement that livery of seisin is necessary to the conveyance of rights in land. The old feudal polity is attacked and attacked successfully by commercialism.
The gage of lands and tenements to Jewish creditors who do not take possession arises, then, on the registration of a written contract under seal before public officials at the Jewish Exchequer or in certain towns.1
To secure principal and interest the debtor may thus hypothecate certain specific lands;2 and lands of any tenure are chargeable until the year 1234, when the Crown’s demesne estates held in socage or villeinage are exempted.3
On the other hand, the gage is often in terms a gage of all the debtor’s property, movable and immovable. Sometimes indeed the debtor says that, should he make default, all his goods, movable and immovable, may be distrained.4 Apparently all such recognizances or bonds create, as regards movable property, merely a right to distrain the chattels that are in the hands of the debtor, not an hypothecation or right in rem that enables the creditor to follow the chattels into the hands of third persons.5 We have evidence, however, that the gaging of land to Jews by registered contract gives rise to a right in rem for purposes of security. If the alienee of land bound by the debt refuse to pay the debt with interest, the seisina of the land in his hands will be given to the Jew.6
On default in payment the creditor may bring his action of Debt; and execution will be by summary processes.1 If his security on the land be enforced, the creditor will be given seisina by the court.2 He may either sell the lands after possession for a year and day, in which time the debtor has a chance to redeem;3 or, he may hold the lands until he has satisfied himself out of the rents and profits.4
While the land is in his hands the creditor has not feudal seisin, not the seisina of one in the scale of lords and tenants, but seisina ut de vadio, seisin as a gagee;5 and this seisin of the Jew or of his assignee is protected by the courts.6
7 From the sources that have come under our notice, it is not clear whether the right of sale given by the charters of Richard I. and John indicates that the land is at the end of the year and day completely forfeited to the creditor, his title to the land being perfected by the acquiring of this right of sale, or whether the creditor is obliged to account to the debtor for the proceeds of the sale over and above the amount of the debt and interest. The answer may lurk in records of the Jewish Exchequer that are still unprinted. In the thirteenth century one would certainly expect to find an accounting in cases of sale, quite as much as in cases where the creditor is reducing his claim by taking the profits of the land.
If indeed the creditor satisfy himself out of the rents and profits, he holds the land as a vivum vadium. The debtor may call upon the creditor to account by the action of Account; and if the creditor has taken more than his debt and interest, this surplus belongs to the debtor. If the land be freehold, the creditor is impeachable for waste, and apparently no laches or lapse of time is pleadable in bar to an action of Account.1
The gage of land with possession of debtor to creditors other than Jews arises on judgment or on the enrolment of recognizances of debt before courts of record or before properly authorized public officials of towns, staples, and fairs. The judgment or recognizance under the Statute of Westminster the Second binds lands belonging to the debtor at the time of the judgment or the recognizance and also, according to later law, lands that he afterwards acquires; though with the writ of elegit, until recent times, only a moiety of the lands may be taken from the debtor or from one who has purchased the charged land from the debtor. Under the Statute of Merchants and the other acts already referred to, the enrolled “statute” or recognizance, accompanied by the drawing up of a sealed obligation, binds in its earlier history all the lands owned by the debtor at the time of making the recognizance; and, according to later law, lands subsequently acquired by the debtor are also charged by recognizance.2
On default in payment the creditor may bring his action of Debt on the personal obligation.1 If, however, advantage be taken of the special remedies on the recognizance or “statute,” possession of land bound by the lien—whether the land be now in the hands of the debtor himself, the debtor’s heir who is of age or the debtor’s feoffee—is delivered to the creditor, his personal representatives or assigns, to be held until the amount of the claim is levied from the rents and profits or paid outright, or until the debtor’s interest in the land expires.2
In the enforcement of the lien, therefore, the creditor holds the land as a “gage” in the nature of the vivum vadium.3 The acts and the writs framed upon them state that the creditor holds or is seised of the land en noun de frank tenement, ut liberum tenementum; at the same time giving him, his executor, administrator, or assign, the freeholder’s possessory actions of Novel Disseisin and Redisseisin. Indeed, the Statute of the Staple explicitly declares that the merchant creditor is actually to have an “estate of freehold” (estat de franktenement). In legal literature the creditor in possession is referred to as a “tenant by statute,” and it is said that he has an “estate by statute,” a “conditional estate,” an “estate defeasible on condition subsequent.”1 Notwithstanding all this, however, the exact legal nature of the creditor’s interest in the land has not yet been fully stated.
One might be inclined to think at first sight that the intention of the medieval legislator was actually to give the creditor an estate of freehold; and from the uncertainty of the holding, which was in reality quousque, it would seem perhaps that these “estates by statute” ought, in strict legal theory, to have been treated as freehold estates.2 The law stopped short of this, however. The acts were interpreted to mean that the creditor has not a “freehold estate” descendible to the heir, but a “chattel real” going to the personal representative on the creditor’s death.3 In the quaint language of Lord Coke, the ut of the expression ut liberum tenementum is merely “similitudinary,” the tenant by statute having a “similitude of a freehold, but nullum simile est idem.”4
The creditor’s interest in the land being thus regarded by the law as a chattel real protected at the same time by the possessory actions of the freeholder, the commercial classes, for whose benefit these securities were chiefly introduced, gained thereby two very significant advantages. The holding of the creditor, his personal representatives or assignees, was perfectly secure; for, if ousted from the land, their seisin might be recovered by an assize.5 Again, on the creditor’s death, not only the debt but its security thus went to the creditor’s executor, not to his heir; the law, says Blackstone, “judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in them, to whom the debts if recovered would belong.”1
The creditor in possession has, therefore, the freeholder’s possessory actions; but at the same time the debtor remains seised of his freehold estate, and should the creditor be ousted, the debtor too may bring his assize of Novel Disseisin, for he has thus been disseised of his free tenement. As soon, however, as either the debtor or the creditor recovers possession, the writ of the other shall abate.2
As soon as the amount of the creditor’s claim is either levied by the creditor out of the rents and profits or paid outright by the debtor, the debtor or the feoffee of the debtor is again entitled to the land now freed from the lien.3 It seems that in certain very rare cases the conusor has a right of re-entry. The usual method of regaining possession, however, is by bringing a writ of scire facias; and by a special form of this writ the conusee may be compelled to restore the issues over and above the sum due.4
The medieval gage of land with possession of the debtor until default is, accordingly, either a gage of certain specific lands or a gage of all the lands of the debtor, the security being created by a contract under seal and of record.5 Looking at execution or the enforcement of the gage on default, we may, furthermore, classify such securities as usufruct-gage and as property-gage. The creditor may reduce his claim out of the rents and profits only; or he may be entitled to the res itself. The principle of the usufruct-gage underlies both gages to Jews and securities created by “statutes” or recognizances. In the right of sale given to Jewish creditors one may see the principle of the property-gage, although whether this right of sale indicates merely that the land is forfeited, or whether, on sale, the surplus must be given to the debtor, is not clear. It is, furthermore, worth observing that, should the debtor’s interest in the land expire while the land is in the hands of the creditor under a “statute,” there is really a forfeiture of the debtor’s interest.
It will be seen, therefore, that whether the medieval creditor take immediate possession or only on default of the debtor, the principle is the same. In either case the security is a usufruct-gage or it is a property-gage, or it is indeed a combination of the two. Though the tracing of the development down to our own day lies beyond the scope of the present paper, it is believed that this very same conception lies at the basis of much of the modern English law.1
CHANGES IN THE ENGLISH LAW OF REAL PROPERTY DURING THE NINETEENTH CENTURY1
THE two lectures which have been allotted to me cannot compete in point of interest with any of those entrusted to my colleagues. The subject is of the earth, earthy. It has not the tragic and human element of criminal law, nor the political flavour of Constitutional or International law. Mr. Blake Odgers and Mr. Birrell have, doubtless, had to struggle with unpromising subjects, but I have neither their charm of style nor their wit to assist me.
Moreover, the law of Real Property is still in a transition state, and most of the changes that have been made (with the exception of Lord Cairns’s Settled Land Acts and Lord Halsbury’s Land Transfer Act) are of the somewhat tinkering and patchy character so dear to the British Parliament. However, although the subject is not amusing, I will endeavour, as Lord Bacon sententiously puts it, “rather to excite your judgment briefly than to inform it tediously.”
Now, although numerous changes have been made in the law affecting real estate during the past century, the most important may be broadly reduced to nine classes, viz., those relating to (1) settled land, (2) the capacity of persons under disability, (3) the effect of death on real estate, (4) the acquisition of title by long enjoyment, (5) copyholds and commons, (6) landlord and tenant, (7) the law of tithes, (8) the relation of legal and equitable rights, and, lastly, (9) changes in the forms by which property is made to pass from owner to owner—in other words, changes in the practice of Conveyancing.
I propose to commence with the most important of all, viz.,
Changes in the Law of Settled Land
Land can be settled either by deed or will. Moreover, it can be settled in divers ways. People of moderate fortune usually settle land in trust for sale on the death of the first life tenant, the proceeds being divided among his children; or, instead of providing for its sale, they divide the property itself among the children. No essential change has been made in that form of settlement. But there is another and much more important form of settlement of land which has for its object the exact converse of the first. Instead of providing for an equal division of the land (or the proceeds of its sale) among a class of children, it aims at keeping the property intact as long as possible in the settlor’s line of descendants, one male at a time having the exclusive possession of it during his life, and the eldest son of the settlor and the male heirs of his body being preferred to the younger sons and their male issue. Such a form of settlement is called strict settlement. It rests on two foundations—primogeniture and estates for life. If primogeniture and the creation of life estates were forbidden, strict settlements would inevitably fall to the ground. As things stand, it is not too much to say that nearly all the great estates, comprising perhaps the greater part of the land of England, are held in strict settlement.
I have heard it said that a great Conveyancer of a past generation once annoyed the judges of the Common Pleas by commencing an argument with the definition of an estate in fee simple. Possibly some of you may feel equally annoyed with me if I venture to give a popular sketch of a strict settlement. But if some sages of the law have honoured me with their presence to-night, I expect that there are also some legal babes and sucklings of whom it is necessary to think.
Speaking broadly, then, the general framework of a strict settlement of land is as follows: The settlor conveys it to the use of himself for life, and after his death to the use that his widow may receive a rent charge (or jointure, as it is called). Subject to these life interests he gives it to the use of trustees for a long term of years (500 or 1000) upon trust to raise by mortgage of that term a specified sum of money for the portions of his younger children, and subject thereto to the use of his first and other sons successively and the heirs male of their bodies, with an ultimate remainder, in default of issue, to the settlor himself in fee simple.
It will be seen that, on the face of it, such a settlement merely ties up the property during the settlor’s life; for, upon his death his eldest son as first tenant in tail could (formerly by process called a common recovery and now by a simple enrolled deed) convert his estate tail into a fee simple, and by paying the portions of his younger brothers and sisters, make himself the absolute owner of the property.
There is no certain method of avoiding this, because the law does not permit property to be settled by way of remainder on the unborn child of an unborn child,1 or by way of trust or executory limitation beyond a life or lives in being and twenty-one years afterwards.2
In practice, however, the property is rarely permitted to go out of settlement, for directly an eldest son comes of age he is induced, like some latter-day Esau, to sell his birthright for a financial mess of pottage.
The alternative is gently placed before him: do your duty to the family by surrendering your future estate tail, receiving instead a future life estate and a present handsome allowance, or remain during your father’s lifetime without funds. Practically, even if family pride did not impel him to consent willingly, he would have to submit, because during his father’s lifetime he can only convert his estate tail into a “base fee” which is scarcely negotiable for purposes of mortgage. He therefore yields; he and his father disentail the property, and then resettle it, restoring the father’s life estate, giving a life estate to the son on the father’s death, and an estate in tail male to his sons successively. When he marries and his eldest son comes of age, the same ingenious process is repeated.
The system of strict settlement, in short, depends upon providing by means of constant resettlements, that no person of full age shall be entitled to a greater estate than an estate for life. This is the keystone of the edifice, and consequently the law of strict settlement is, apart from powers contained in the settlement itself, identical with the law relating to life estates.
Now, with these explanatory remarks let us contrast the state of settled land at the beginning and end of the 19th century.
At the beginning, unless the will or settlement by which the property was settled contained express powers (which was frequently not the case), a tenant for life could neither sell, exchange, nor partition the settled property, however desirable it might be. If the estate consisted of a large tract of poor country, fruitful in dignity but scanty in rent, and especially if the portions of younger children charged on it were heavy, he too often found it a damnosa hæreditas; the rents, after payment of interest on the portions, leaving a mere pittance for the unfortunate life tenant to live on, and quite disabling him from making improvements, or even keeping the property in a decent state of repair. Nay, more, if he did spend money in improvements, the money was sunk in the estate to the detriment of his younger children. He could not pull down the mansion house, however old or inconvenient it might be, nor even, strictly, make any substantial alteration in it. Unless expressly made unimpeachable for waste, he could not open new mines.
But in addition to these disabilities, what pressed still more hardly upon him, and on the development of the estate generally, was his inability to make long leases. Consequently where valuable minerals lay beneath a settled property, or the growth of the neighbouring town made it ripe for building sites (the rents for which would greatly exceed the agricultural rent) nothing could lawfully be done. The tenant for life could not open mines himself, even if he had the necessary capital for working them; nor, even if unimpeachable for waste, could he grant leases of them to others for a term which would repay the lessees for the necessary expenditure in pits and plant; nor could he grant building leases or sell for building purposes at fee farm rents. In some settlements powers were expressly inserted, enabling the trustees to grant such leases and to sell, exchange, and partition. But frequently, especially in wills, such powers were omitted, and in such cases the only means of doing justice to the land, was to apply for a private Act of Parliament authorising the trustees or the life tenant to sell, exchange, partition, or lease. But such Acts were expensive luxuries, only open to the rich, and beyond the means of most country gentlemen of moderate means. Moreover, even the barring of the entail, in order to make a new or more effectual settlement, necessitated the grotesque and cumbrous proceeding known as a common recovery, a pretended action by a collusive plaintiff against the tenant in tail, for the recovery of the land. The latter pleaded (quite untruly) that he had bought the lands from a man of straw (usually the Crier of the Court) who had warranted the title, and asked that this person should be “vouched to warranty,” i. e. called on to defend the action. The Crier being called, admitted the warranty, and made default. Thereupon judgment was given that the lands should be given up to the plaintiff, and that the Crier should convey lands of equal value to the tenant in tail under his fictitious warranty, which he was of course incapable of doing. What would have happened if the Crier had subsequently come into a fortune is too painful to contemplate. In some cases a single voucher was deemed sufficient; in others a double voucher was required. In all cases the proceeding was a scandalous farce, in which judges, counsel, solicitors, and the parties, were all behind the scenes and enjoying the fun. It was described by the Attorney General in 1833 as “involving enormous and unnecessary expense, and necessitating the conduct of proceedings through no less than twenty offices, in each of which danger, delay, and expense had to be faced.”
Thus matters stood in the year 1801 and thus they continued down to the year 1833. In those days when agriculture was the most profitable of industries, when machinery and railways and steam navigation had not yet produced any great demand for coal and iron, and when towns did not as now overflow their ancient boundaries with astonishing rapidity, the tying up of land in the way I have described gave rise to but few hardships. Indeed, we find the Real Property Commissioners in 1829 singing a pæan over the system as one approaching perfection. In their first report they say: “Settlements bestow upon the present possessor of an estate, the benefits of ownership and secure the property to his posterity. The existing rule respecting perpetuities has happily hit the medium between the strict entails which prevail in the northern part of the island, and by which the property is for ever abstracted from commerce, and the total prohibition of substitutions, and the excessive restrictions of the power of devising established in some countries on the Continent of Europe. In England families are preserved, and purchasers always find a supply of land in the market.” That, however, was too optimistic a view, and even the Commissioners themselves recommended the abolition of the absurd method of barring estates tail by Common Recovery, and the substitution of a simple enrolled deed of conveyance, a recommendation which was carried into effect in 1833 by the Act for the abolition of Fines and Recoveries.1
However, even that measure did not pass without opposition, one argument being, I believe, that it would render useless the “lean and wasteful learning” on the subject which was then stored away in the brains of Conveyancing Counsel, a learning which Shakespeare with fine audacity attributes to no less a person than the Prince of Denmark when he says, “This fellow might be in’s time a great buyer of land, with his statutes, his recognizances, his fines, hisdouble vouchers, his recoveries: is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? will his vouchers vouch him no more of his purchasers, and double ones too, than the length and breadth of a pair of indentures?”1
Thus matters stood until the early years of the reign of that great and gracious Lady whose loss we are now lamenting. By the Drainage Acts,2 tenants for life and other limited owners, were empowered, with the leave of the Court of Chancery, to make permanent improvements in the way of drainage, and to charge the expenses with interest on the inheritance.
In 1864 still larger powers of improving land were given to tenants for life, by the Improvement of Land Act3 of that year, which enables tenants for life with the sanction of the Enclosure Commissioners (now the Board of Agriculture) to raise money by way of rent charge for divers specified improvements, including draining, improvement of watercourses, embanking, enclosing, fencing, reclamation of land, the making of roads, tramways, railways, and canals, the cleaning of land, the erection and improvements of cottages and buildings, planting, the construction of piers, and other matters too numerous to mention in detail. To these were added by the Limited Owners Residences Acts, 18704 and 1871,5 and the Limited Owners Reservoir and Water Supply Act, 1877, the erection or completion of, or an addition to a mansion house, and the construction of permanent waterworks.
These Acts were doubtless of great value, but they were of small importance compared with a statute passed in the year 1856 known as an Act to facilitate leases and sales of settled estates.6 That Act after being amended by a series of statutes was repealed and the whole subject reenacted in a modified form by the Settled Estates Act, 1877,7 usually known to us as “Marten’s Act” after its respected author, Sir Alfred Marten, the present Chairman of the Board of Studies of the Council of Legal Education.
The Settled Estates Acts enabled the Court of Chancery to sanction the sale, exchange, or partition of settled land and the granting of leases not exceeding in duration 21 years for an agricultural or occupation lease, 40 years for a mining lease or water-mill or water-way lease, 60 years for a repairing lease, or 99 years for a building lease, unless the Court should be satisfied that it was usual in the district and for the benefit of the property that longer leases should be granted.
They also authorised the tenant for life, without any leave of the Court, to grant leases not exceeding 21 years unless the settlement expressly negatived such power.
The Settled Estates Acts governed the subject between 1856 and 1882. Under them a tenant for life, apart from express power in the settlement, could only sell or lease the settled land for longer than 21 years under an order of the Court.
For some time before 1882, an agitation had sprung up for the total prohibition of life estates. The late Mr. Joseph Kay, Q. C., was perhaps the ablest advocate of the reformers, and wrote a very able and interesting book on the subject called Free Trade in Land. It was there urged that life estates complicate titles and make transfers difficult and costly; that they take the control of children (particularly an eldest son) out of his father’s hands, and prevent “the sale and breaking up of the great estates when change of circumstances, or poverty, or misfortune, or bad management, or immorality would otherwise bring land into the market.”
On the other hand, we of a conservative disposition (I say we, for I took an active part in the controversy) pointed out, that if settlements of personal property were allowed, but settlements of land were forbidden, it would be a terrible injustice to landowners. As the late Mr. Osborne Morgan put it, “It is scarcely too much to say, that to a good many people a proposal to abolish marriage settlements would be little less startling than a proposal to abolish marriage itself. Even grandfathers have their feelings, nor are fathers or husbands always to be trusted; and few country gentlemen would regard with complacency a measure of law reform which might in certain eventualities, consign their daughters or their daughters’ offspring to the workhouse or the streets. A law, therefore, which would permit no limitation of land except in fee simple, would render it very difficult for a landowner to make a suitable provision for his family after his death. Under such a law, a country gentleman could not give a life interest nor a jointure to his widow, he could not make a proper provision for the event of one or more of his children dying under age. He could certainly not protect his daughters or their issue against the rapacity or extravagance of an unprincipled or thriftless husband or father. It is easy to see that such a measure, simple as it sounds, would amount to a social revolution; its consequences would be absolutely incalculable.”
Under these circumstances some of us urged that instead of rashly abolishing life estates, an extension of powers of management and sale should be granted to life tenants; and this idea having commended itself to the late Earl Cairns and others, including that great real property lawyer, Mr. Wolstenholme, a Bill was drafted by the latter, and safely piloted through Parliament by the former, and is now known as the Settled Land Act, 1882.1 It is impossible, having regard to the time at my disposal to give more than the merest sketch of the provisions of this great Act, the greatest real property Act, I think, of the century.
The broad policy on which the Act of 1882 is founded, was, in the words of the late Lord Justice Chitty in Re Mundy and Roper (reported in 1899, 1 Ch. p. 288), as follows: “The object is to render land a marketable article, notwithstanding the settlement. Its main purpose is the welfare of the land itself, and of all interested therein, including the tenants, and not merely of the persons taking under the settlement. The Act of 1882 had a much wider scope than the Settled Estates Acts. The scheme adopted is to facilitate the striking off from the land of fetters imposed by settlement; and this is accomplished by conferring on tenants for life in possession, and others considered to stand in a like relation to the land, large powers of dealing with it by way of sale, exchange, lease, and otherwise, and by jealously guarding those powers from attempts to defeat them or to hamper their exercise. At the same time the rights of persons claiming under the settlement are carefully preserved in the case of a sale, by shifting the settlement from the land to the purchase money, which has to be paid into Court or into the hands of trustees” (at the option of the tenant for life).
The money so paid can be applied in a variety of ways for the extension of the property or the release of incumbrances; or can be invested upon certain specified securities, according to the direction of the tenant for life, or may be applied in the execution of permanent improvements, a long list of which is inserted in the Act. The Act also contains elaborate clauses providing for the working out of the general idea, and, speaking broadly, may be said to give a tenant for life or other limited owner, powers of management as large and varied as those of an absolute owner, but making provision for safeguarding capital money arising from the settled land, so that it cannot be either pocketed or wasted by the tenant for life.
The following salient points should be noted:
(1) The tenant for life in possession—the head of the family for the time being—the man most interested in the prosperity of the property, is the person in whom the statutory powers of selling, leasing, and improving are inalienably vested. The powers are not confided to independent trustees, who would naturally take a languid and platonic view of the situation. It is this provision which is the life-blood of the Act.
(2) The life tenant cannot part with his statutory powers, even although he parts with his life estate; but in that case, if he exercises the powers, they are without prejudice to the estate per autre vie of his assignee.
(3) Except in the case of the mansion house, or its demesne lands, or of heirlooms, the tenant for life is not fettered by the necessity of obtaining the consent either of the Court or of the trustees. True, he has to give notice to the trustees of his intention to exercise his statutory power; but that is merely to enable them to keep an eye upon him, so that, if he should attempt to use his powers fraudulently, they may apply to the Court to stop him.
(4) As to improvements, the Act provides (sec. 29) that every limited owner may, without impeachment of waste, execute any improvement specified in section 25, or inspect, repair, or maintain it, and for these purposes may do all acts proper for the execution, maintenance, repair, and use thereof, and work freestone, limestone, clay, sand, and other substances, and make tramways and other ways, and burn and make bricks, tiles, and other things, and cut down and use timber and other trees not planted or left standing for shelter or ornament.
(5) With regard to leases, the tenant for life is empowered to grant building leases for 99 years, mining leases for 60 years, and other leases for 21 years, subject to certain formalities, and at the best procurable rent. Moreover, where it is shown to the Court that it is the custom of the district to lease for building or mining purposes for a longer term or on other conditions than those specified, or even in perpetuity, and that it is difficult to get a tenant except on the local terms, the Court may authorise leases in conformity with such custom.
(6) In connection with sales or building leases, the tenant for life may cause any part of the land to be appropriated for streets, squares, gardens, and open spaces.
(7) In the case of mining leases, as the property necessarily depreciates as the minerals are abstracted, the Act provides that where a mining lease is made, whether of opened or unopened mines, there shall be set aside as capital money under the Act, three-quarters of the rent if the tenant is impeachable for waste, and one-quarter if he is not.
Lastly, any prohibition of the powers of the Act contained in any settlement is to be absolutely void.
Such is a rough sketch of this great Act, an Act which has been, in my opinion, a complete success.
There have been several Acts amending the Act of 1882, but they have only dealt with detail, and in nowise affect the broad principles on which the main Act was founded.
In addition to this great statute, the past century has seen a considerable number of minor changes in the law of settled land. For instance, take the case of contingent remainders, words of fear almost as unwelcome to the ear of the student as the note of the cuckoo is said by Shakespeare to be to that of the husband.
In the year 1801, if real estate was settled upon A for life, and after his death to such of his children as should attain 21, then, if A’s life estate came to an end before any of his children attained 21 years of age, the gift to the children failed. The rule was that a contingent remainder must become vested at or before the determination of the preceding estate of freehold, otherwise it was void. It was immaterial how the preceding estate of freehold came to an end, whether by forfeiture, surrender, merger, or by the death of the life tenant. To prevent this, it was usual to go through the form of appointing trustees to preserve contingent remainders (a pure technicality—as pure a technicality as fines and recoveries). On the other hand, where a contingent interest in land was limited by way of executory devise, it did not fail by reason of the preceding estate coming to an end before the contingency became a certainty. This absurd distinction, depending entirely on logical deductions from feudal notions, has gradually been abolished. In 1845, by the 8th section of the Real Property Act of that year,1 it was enacted that henceforth no contingent remainder should fail by reason of the determination of the preceding estate by forfeiture, surrender, or merger. The author of this Act, however, curiously enough, still left a contingent remainder liable to be defeated by the death of the preceding life tenant before the contingency had become a certainty, and the law so continued until 1877. In that year, in consequence of the very hard case of Cunliffe v. Brancker1 (where a whole family of children were deprived of property, because an unskilful draftsman had not given trustees of a will a sufficient legal estate to preserve the contingent remainder), an Act was passed, called the Contingent Remainders Act.2 By this Act the liability of contingent remainders to destruction by the natural expiration of the preceding estate has been practically abolished with regard to remainders arising under instruments executed since the 2nd August, 1877. No one, I think, can doubt the wisdom and justice of this.
Another point on which the law of settled land has been changed in the direction of freedom is with regard to accumulations. In the beginning of the year 1800 the rule against perpetuities (afterwards authoritatively declared in Cadell v. Palmer3 ) was doubtless in force, but it nevertheless permitted the income of real or personal estate to be accumulated during the whole of the period of lives in being and 21 years afterwards. A certain eccentric Mr. Thelluson, taking advantage of this, successfully directed that the income of all his real estate should be accumulated during the life of the survivor of his descendants living at his death, for the benefit of his remote descendants. This created such an impression that an Act was passed in July 1800, commonly called the Thelluson Act,4 thereby conferring an immortality on the testator which he did not merit. By this Act, accumulations are prohibited for longer than four alternative periods, viz., the life of the settlor, or 21 years from his death, or during the minority of any person living at his death, or during the minority of any person who, if of full age, would be entitled to the income. These restrictions have been tightened by the Accumulations Act, 1892, which prohibits accumulations for the purpose of purchasing land for a longer period than the minority of the person who, if of full age, would be entitled to receive the income directed to be accumulated.
So much with regard to the changes in the law of settled land. Much still remains to be done to place our law of settled property on a rational basis. For instance, learned members of the legislature might well turn their attention to the law relating to repairs of settled land, which is in a most confused and absurd state. The law, according to a decision of the late Mr. Justice (afterwards Lord Justice) Kay, in re Cartwright,1 is that a legal life tenant is not liable to keep in repair freehold lands or houses. The same rule also apparently applies to an equitable life tenant.2 Nor has the Court any jurisdiction, where the estates are legal estates, to order money to be raised on the security of the corpus for making repairs,3 although there appears to be such jurisdiction where the property is vested in trustees. Surely this is a very irrational and thoroughly impolitic state of the law. Either the life tenant ought to be made to keep property in repair, or the Court ought to have jurisdiction in every case to sanction a charge for the purpose on the inheritance. Something ought to be done to clear away an impasse which is a disgrace to our law.
I know of an estate where the present life tenant, an old man, is allowing all the farm-houses, cottages, and buildings to go into absolute ruin, roofs have fallen in, fences and gates are broken, and the whole estate given over to decay, yet the remainderman has no remedy.
Changes in the law relating to the real estate of persons under disability
I now come to another branch of our subject, viz. changes in relation to disability, including the power of dealing with property on behalf of persons under disability.
In the year 1801 a married woman entitled to land for a legal estate in fee simple could not sell, mortgage, or deal with it in any way, either with or without the joinder of her husband, except by going to the outrageous expense of suffering a fine—a collusive action, which, like a common recovery, necessitated the carriage of the business through a multitude of Government offices, in each of which, I need scarcely say, fees were extracted. She could not make a will of her fee simple lands. She could not even release her contingent right to dower on a sale by her husband of his own lands, without suffering a fine. It was at that date also considered to be very doubtful whether she could deal with the fee simple where it was settled to her separate use, the prevailing view being that the separate use was confined to her life interest and could not affect her heir.
By the Fines and Recoveries Abolition Act, 1833,1 however, her position was to some extent improved, and she was enabled to dispose of her fee simple lands by a deed with the approbation of her husband, and acknowledged by her to be her free act before Commissioners. That, of course, only cheapened matters.
In 1865 it was decided, in the case of Taylor v. Meads,2 that a married woman could without these formalities dispose by deed or will of fee simple lands settled to her separate use; but it was not until 1870 that any fresh legislation came to the relief of married women. In that year the first Married Women’s Property Act3 was passed; but, so far as real estate is concerned, it only made statutory separate property of the rents and profits of real estates descending to a married woman as heiress. In 1882, however, Parliament passed a thoroughly revolutionary Married Women’s Property Act,4 which, like many statutes of importance, did not attract one quarter the interest evoked by a burials bill or a verminous persons bill or other measure interfering but little with the people’s everyday life. The general effect of this bill has been (so far as women married after the Act came into force are concerned) to put them in the same position as men, and even to put women married before the Act into the same position so far as regards property their title to which first accrued after the Act. Thus married women, from a position of complete proprietory subjection at the commencement of the century, have attained complete proprietory equality with men at the end of it. Nay, their position is even better than that of men; for if they are, by will or settlement, expressly restrained from alienation, they can snap their fingers at their creditors; and while their husbands are denied all participation in their worldly possessions, they (the husbands) still remain liable to third parties for their spouses’ torts. But the privileges of the fair sex do not stop here, for while they can use restraint against alienation as a shield against their unfortunate creditors, the 39th section of the Conveyancing and Law of Property Act, 1881, enables a sympathetic judge to relieve them of it if it should prove irksome and contrary to their true interests. As has been happily written by a legal poet, Mr. Cyprian Williams:
So far married women. Let us now turn to infants, legal infants, i. e. persons under the age of twenty-one years.
In 1801 it was impossible to sell an infant’s real estate (with a qualified exception in the case of gavel-kind lands) however desirable a sale might be. Even the Court had no inherent jurisdiction to order a sale, nor to authorise a settlement by an infant of his or her property on marriage. Nor was it possible to grant leases binding on the infant. It was impossible to spend money on the estate or to develop it in any way. If strict settlement was sometimes disastrous to a locality, still more so was a long minority. How different is the case now. By 1 William IV. c. 65 the guardian was empowered by the direction of the Court of Chancery to make ordinary mining or building leases of the infant’s land for any term. By the Infants’ Settlement Act, 1855,2 a male infant of 20 and a female of 17 were enabled to make a binding settlement on marriage with the sanction of the Court. The Partition Acts, 1868 and 1876,3 enabled the Court in a partition action where an infant is interested to order a sale and to vest the property in the purchaser.
The Settled Estates Act, 1877,1 empowered the Court to order a sale, where an infant was interested in settled land. This did not affect infants entitled in fee simple in possession, but by the 41st section of the Conveyancing and Law of Property Act, 1881,2 it was extended to fee simple estates.
By the 42nd section of the last-mentioned Act provision is made for the exercise by trustees appointed on behalf of an infant of very wide powers of management, including the carrying out of repairs, the working of mines, and so on.
Finally, by the 59th and 60th section of the Settled Land Act, 1882, the Court is empowered to appoint persons to exercise on behalf of an infant (whether tenant for life, in tail, or in fee) all the powers of sale, partition, exchange, and leasing given by that Act to tenants for life.
The old lawyers generally classified infants, lunatics, and married women together in a rising scale of intelligence. It remains to consider the positions of lunatics.
The Statute de Prœrogativa Regis,3 provided that the King should have the custody of the lands of idiots, subject to his supplying the idiot with necessaries, and returning his lands to his heir at death. It took, however, a fine distinction between idiots and lunatics, providing that with regard to the latter, the King should see that their households were competently maintained out of the rents and profits, any surplus being kept for their use on recovery, or, if they died, distributed for the good of their souls by the advice of the ordinary.
The lunatic, therefore, was in a better position than the idiot, inasmuch as the King appropriated the income of the one, but merely held it as trustee for the other. Moreover, the soul of the lunatic was provided for, while the idiot passed away “unhousel’d, disappointed, unanel’d.” This distinction has for centuries been abolished, but it was not until 1853 that powers of sale, leasing, and so on were conferred on the Lord Chancellor in respect of the estates of persons non compos mentis. The subject is now governed by the Lunacy Act, 1890,1 which confers on the Masters in Lunacy powers to sell, mortgage, improve, and lease the lunatic’s real estate.
Changes in the law relating to the effect of death on real estate
Let us now turn to the changes in the law relating to the effect of the death of an owner in fee simple. And first as to changes in the law of devolution.
In 1801, if a man died solely seised of real estate in fee simple, his widow was entitled to one-third of it during her life, and of this he could not deprive her either by will or deed, not even by a sale or mortgage of the land. The only method of doing it was by levying a fine with all its delay and cost. This “rusty curb of old Father Antic, the law,” was destroyed by the Dower Act, 1833,2 and now a widow can only claim dower on lands belonging to her husband at his death, and only then with regard to lands which he has not disposed of by his will.
In 1890, however, Parliament gave to certain widows, viz., the widows of persons who die intestate and without issue, a further first charge for £500 payable rateably out of the real and personal estate of the deceased. This Act, called “The Intestates Estates Act, 1890,”3 was the result of several shocking cases where a man having made no will, all his real estate and half his personalty had passed to remote cousins, leaving the widow penniless, or nearly so.
With regard to heirship, at the beginning of the 19th century the matter was governed by a series of rules depending on custom and digested by Lord Hale. Ascendants in the direct line were never admitted. For instance, if a man died intestate, leaving a father and an uncle, the uncle took to the exclusion of the father, on the childish ground that the law presumed that a man got his estate from his ancestors, and that consequently his father must have enjoyed it already. Moreover, half blood was not recognised as giving any right of heirship, and descent was traced from the last person seised. By the Inheritance Act, 1833,1 the matter was codified, descent was thenceforward traced from the last purchaser instead of the last person seised, lineal ancestry were admitted as heirs (although the mother was placed very low down in the list) and the half blood were admitted on fair terms. Finally by the Land Transfer Act, 1897, freehold land now devolves in the first instance on the personal representative in the same manner as leasehold property; but, subject to debts funeral and testamentary expenses, he holds it in trust for the heir or devisee.
But in addition to succession, the effect of death on the liability of real estate to answer the debts of the deceased has been very considerably altered during the past century.
In 1801 the only property of a deceased person recognised as liable for simple contract debts, was the general personal estate. Unless he charged his debts on his real estate, the heir or devisee took it free from all debts except mortgage debts, crown debts, judgments and recognizances and debts arising under deeds in which the heir was expressly mentioned, and not even for such debts if the debtor devised the property to another.
Even in the case of mortgage debts, the heir or devisee, with gross unfairness, was entitled to be indemnified out of the general personal estate of the deceased.
This was a scandalous state of the law according to modern notions, and by various statutes, especially by 3 and 4 Will. IV. c. 104, and 32 and 33 Vict. c. 46, real estate has been made available for payment of debts of all kinds, and debts arising under deeds have not even priority over simple contract ones. Moreover, by the Acts known as Locke King’s Acts,2 where an heir or devisee takes real estate burdened with a mortgage debt or lien, he is to take it cumonere, and is to be no longer entitled to saddle the burden on the personal estate of the deceased—a very excellent extension of the maxim qui sensit commodum debet sentire et onus.
It sometimes happened, however, before these beneficial changes were introduced, that an honest testator charged his real estate with debts by his will, but omitted to give any directions as to how the charge was to be enforced. The executor could not enforce it, for the lands did not vest in him. Even if the real estate was given to trustees they could not sell or mortgage it to raise the charge, unless express directions were given to them to do so; and consequently a Chancery suit was in such cases inevitable. In 1859, however, Parliament passed the Law of Property Amendment Act of that year, which empowered a “devisee in trust” of real estate charged with debts, to raise the sum required by sale or mortgage; and if there were no devisees in trust, then a like power was given to the executors.1 However, this Act only applied where the will contained a charge of debts, and in other cases a Chancery suit was necessary in order to get real estate sold for payment of them. But now, by the Land Transfer Act, 1897, freehold land always devolves on the personal representative, and he is given full power to sell or mortgage it for payment of debts whether expressly charged or not.
While on this subject, I may mention that there was no death duty levied on real estate until 1854, when succession duty was imposed; and now by the Finance Act, 1894, estate duty is added.
Changes in the Law relating to Limitation and Prescription
So much for changes in the law relating to the acquisition of property by succession. Let us now turn to acquisition by what Continental jurists would call prescription. I say Continental jurists, because English lawyers usually restrict the term prescription to the acquisition, by long user, of easements and profits a prendre in alieno solo; whereas on the Continent, it includes, with better logic, the acquisition of corporeal property by long user under what we call the statutes of limitation.
What was the state of the law as to acquisition by long user at the commencement of the 19th century?
With regard to corporeal hereditaments, the question was practically governed by1 the Statute 32 Hy. VIII. c. 2, by which an undisturbed possession as of right for at least 60 years, was required to bar real actions and writs of right.
This state of the law lasted down to 1833, when the celebrated Statute of Limitations of that year was passed.2 The general result of that Act was as follows:
(1) The period was reduced from 60 to 20 years.
(2) Where a rightful owner sui juris is out of possession, without acknowledgment of his title signed by the party in possession, for 20 years, the Act not only takes away the legal remedies for recovery of possession, but also abolishes his right to the property; so that even if he should recover possession without the aid of the Courts, he would be a trespasser.
(3) The Act made exceptions in favour of persons under disability, and persons beyond the seas, who were to have ten years from the cessor of their disability or return to England in which to assert their rights.
(4) It also provided that the statutory period should not begin to run against persons entitled to future estates or interests until those estates or interests became actually enjoyable in possession.
That was the broad general result of the Act of 1833. In 1874 a new Limitation Act was passed,3 the effect of which was to substitute 12 for 20 years and 6 for the extra 10 allowed to persons under disability, and to take away altogether the exception in favour of persons beyond the seas. Truly a world which was vast in 1833 when ocean steam navigation and telegraphs were unknown, has become so contracted by those great inventions as to make absence beyond the seas little more of a true disability than absence in the Hebrides was in 1833. The rights of future owners are also abridged by the Act of 1874, so that now a reversioner is only allowed 12 years from the time when the previous owner was dispossessed, or six years from the time when he himself became entitled in possession, whichever period may be the longest. Moreover, if the right of one reversioner is once barred, the bar is now made to extend to all subsequent reversioners.
Now, let us turn to the similar but more complex questions in relation to easements and profits à prendre. By the ancient Common Law, an easement or profit, could not be gained by long user. Then, probably in the reign of the third Edward, the Courts, on the analogy of the first Limitation Act,1 laid it down that easements and profits might be gained by mere user traced back as far as 1189 (the first year of the reign of Richard I.). Then (as time progressed and it became impossible to trace back to that date) it was held that user during the memory of living witnesses was sufficient to raise a prima facie case, rebuttable by proof that the user first arose since 1189; by showing, for instance, that both the dominant and servient tenement were owned by the same person at sometime during that period. To meet this, the fiction of a modern lost grant was invented by the Courts, and juries were directed by judges to presume a lost grant where 20 years user was shown. But this fiction still left it open to the owner of the land to rebut the right claimed, by showing that it could not have arisen by grant at all. Thus matters stood at the commencement of the past century.
This fiction, which imposed on juries the finding of a lost grant in which they probably had not the least belief, so shocked Lord Tenterden, that he prepared and piloted through Parliament the Statute known as the Prescription Act, 1833.2 It must, I think, be called an ill-conceived Act, because it leaves it uncertain, even at the present day, whether it relates to all easements, or only to those specifically mentioned; and moreover, it makes time in some cases operate against the owners of future estates (as in the case of easements of light), and not in other cases. It specifies 20 years as the period in some cases, and 30 in others. It did not touch rights in gross, nor profits à prendre except common rights, and it is very doubtful whether it touched easements of support at all. In short, this Act and the statutes of limitation might well be reconsidered in the light of modern decisions, and a new code, dealing with both subjects on one basis, will, let us hope, be one of the great statutes of the new century. It is absurd that while 12 years’ possession should give a right to land, at least 20 should be required to give a right of way over land, that 30 should be required to give a right of common, and that even the testimony of living witnesses should only confer a prima facie right to a fishery or any other profit in alieno solo.
Since the Judicature Act, the theory of a lost grant has been considerably extended in cases of profits not falling within the Prescription Act. The old theory that a lost grant could be rebutted by showing that the right claimed was incapable of being granted at Common Law, has been modified to this extent, that if long enjoyment is shown, the Court will endeavour to presume a lost lawful origin, legal or equitable, even although the right claimed could not have been granted at Common Law. Thus in Goodman v. Corporation of Saltash,1 an equitable right in the inhabitants of Saltash as beneficiaries under a lost charitable trust to fish in the river Tamar was presumed from long user, although no Common Law grant of such a right could be made to a fluctuating body like the inhabitants. The great case of Dalton v. Angus,2 too, has decided, but on what principle is doubtful, that even if the Prescription Act and the theory of lost grant are inapplicable to rights of support, yet a right to support to buildings is acquired somehow by twenty years’ uninterrupted enjoyment. You see, therefore, that whereas in the year 1801 an easement or profit could only be gained by express grant, implied grant, or ancient prescription extending beyond the time of living memory (the implied grant or prescription being rebuttable), such rights may now also be gained as to some under the Prescription Act, and as to others under the new doctrine that a lawful (as distinguished from a legal) origin will be presumed from long user.
Copyholds and Commons
I must remind you that copyholds are lands forming part of a manor, which have, in theory at all events, been holden from the lord from a period anterior to the statute Quia Emptores (1290), and were for many centuries held by the serfs and villeins of that lord as tenants at will. Gradually the Royal Courts came to recognise a custom, in all manors, of fixity of tenure, subject to the performance of services, and the payment of fines, fees, and heriots. So that, although copyholds are still formally described in all documents relating to them as held at the will of the lord, yet, since the time of Littleton,1 Copyhold tenure has become little more than a very inconvenient form of ordinary tenure—an anachronism and a nuisance, and probably the greatest of all the obstacles to a simplification of the Land Laws. It has long ceased to be held by serfs and villeins, if for no other reason, because serfs and villeins themselves have for centuries ceased to exist. Indeed, it is not unusual nowadays to find that the copyholder is a person of far more social importance than the lord. I myself have known a case where the copyholder was a peer of the realm and the lord of the manor was the local ironmonger.
In the year 1800 copyhold tenure could, as now, be extinguished by merger, viz. (1) by the lord acquiring the tenant’s interest, or (2) by the tenant acquiring the lord’s. The latter is called “enfranchisement.” A tenant could only obtain enfranchisement by the voluntary act of the lord, and where the lord was himself (as was most frequent) a tenant for life of the lordship, he was incapable of enfranchising, except under some express power.
At the commencement of the late Queen’s reign an agitation had sprung up for the compulsory enfranchisement of copyholds, on the ground that the tenure had long since lost its raison d’être; and, by a series of Acts known as the Copyhold Acts (beginning in 1841 and now consolidated in the Copyhold Act, 1894),1 either lord or tenant can, at the present day, insist on the enfranchisement of copyhold lands, the lord’s compensation in case of dispute being settled by the Board of Agriculture. The lord’s right of escheat, and his right to minerals and sporting rights, and the tenant’s right of common, are, however, preserved.
And this brings me to the consideration of the changes in the law relating to Commons.
Whatever the real origin of common lands may have been, it has been settled for centuries that they are the freehold waste lands of the lord of a manor, over which, by ancient custom, prescription, or grant, certain persons called Commoners, have a right in common with the lord himself and others, to a profit à prendre. This profit is of divers kind. Sometimes it is a right to depasture cattle, sometimes to fish, sometimes to cut turf, and so on. At the beginning of the past century the law recognised no one as having any rights in common lands except the lord and the commoners. If they were all of one mind they could enclose the common and divide it among themselves. Moreover, by the Statute of Merton,2 passed in 1265, the lord alone could, without anyone’s consent, enclose part of a common, so long as he left sufficient to satisfy the rights of the commoners. Toward the end of the 18th century an idea sprung up that the total enclosure of commons was desirable in the public interest, on the ground that, thereby, additional land would be brought under cultivation; but, as the unanimous agreement of lord and commoners was not often obtainable, owing to some of the latter being under disability, private Acts of Parliament were usually necessary, and these of course were costly. For this reason Parliament passed a general Enclosure Act in 18451 to “facilitate the enclosure and improvement of commons and lands held in common,” and for other purposes. But this Act and its nine amending Acts only cheapened and facilitated the total enclosure of a common, by providing a cheaper procedure.
By the year 1866 a reaction had set in. The growth of cities and the increase of population had rendered the commons valuable as recreation grounds, while Free Trade had reduced their importance for agricultural purposes. Accordingly in 1866 and 1869, the Metropolitan Commons Acts2 were passed to prevent the enclosure of commons in the neighbourhood of London, and to provide for their management and regulation. In 1876 another Commons Act was passed,3 which, among other things, authorised the Enclosure Commissioners (now merged in the Board of Agriculture) to entertain proposals for the regulation of commons. By Section 8 no enclosure of suburban commons was to be sanctioned, unless the sanitary authorities of towns within six miles were represented before the Commissioners, and special provision was made for the benefit of the inhabitants of such towns. All these Acts related exclusively to complete enclosure, and left untouched the lord’s right under the Statute of Merton to enclose so much of a common as was not required for the exercise by the commoners of their rights. In the year 1888 however that doctrine received a rude blow in the case of Robertson v. Hartopp.4 In that case the Court of Appeal held that the question whether there was a sufficiency of common left, must be determined, not according to the average number of animals which the commoners had for a long period been in the habit of turning out, but according to the aggregate number which they were theoretically entitled to turn out. Moreover the Court queried whether the modern system of sheep farming, according to which sheep do not, while turned out, get all their sustenance from the common, ought to be taken into consideration. As one of the Counsel engaged, wittily observed, the question of sufficiency of common now depends on the problematical hunger of a hypothetical sheep. This case has since been followed by the Commons Act, 1893,1 by which the lord’s right to make a partial enclosure under the Statute of Merton is no longer to be exercised without the consent of the Board of Agriculture, which is to have regard to the same considerations, and if necessary to make the same enquiries as are by the Commons Act, 1876, to be made on an application for the total enclosure of a common. Since this Act has been passed, having regard to the trend of public opinion, it is safe to say that very few enclosures either total or partial have been or will be lawfully made.
Changes in the Law relating to Tithes
Let us now turn to changes in the law relating to tithes. Tithes consisted of the right to a tenth part of the profits of land. At the beginning of the 19th century they were payable in kind, a most inconvenient practice. By the Tithe Commutation Act, 1836,2 however, a rent charge was substituted, varying with the price of corn.
Between 1880 and 1891 an agitation against payment of this rent charge sprung up among Nonconformist farmers, especially in Wales, and reached such serious proportions (tenants refusing to pay, and submitting rather to have their goods distrained), that Parliament passed the Tithe Act, 1891.3 By this Act tithe rent charge was in future made payable by the owner of land, and any contract between him and his tenant, under which the latter is to pay it, is made void. By this ingenious method the grievance of Nonconformist tenants was “scotched,” without the parsons being deprived of the fund originally provided for their maintenance.
Landlord and Tenant
The past century witnessed numerous changes in the law relating to landlord and tenant—so many that it is quite impossible to touch upon all of them. The most important relate to distress for nonpayment of rent, relief against eviction or forfeiture for breach of covenants or conditions, and compensation for improvements made by the tenant of agricultural land.
The chief change that has taken place in the law of distress is with reference to lodgers’ goods. Before the year 1871 the landlord of a person who let lodgings could enforce his rent, not merely by distraining the goods of his own tenant (the lodging-house keeper), but also the goods of that tenant’s lodgers. This was, with reason, considered to be very unfair to lodgers; and, consequently, it was enacted by the Lodgers’ Goods Protection Act, 1871,1 that in the event of a lodger’s goods being distrained by his landlord’s landlord, the lodger might, under certain conditions and with certain formalities, require the superior landlord to give them up, under penalty of being adjudged guilty of an illegal distress.
With regard to relief against forfeiture (or eviction as it is more popularly called), the right to evict for nonpayment of rent or breach of covenant is not given to landlords by law. It depends entirely upon contract. For centuries, Courts of Equity have relieved against a condition for eviction on nonpayment of rent, on the terms of the tenant paying the rent in arrear, with interest; and statutory force was given to this doctrine so long ago as the 18th century. But the jurisdiction of Courts of Equity to relieve against forfeiture for breach of covenant was much more restricted, and was practically confined to cases where the breach had occurred through fraud, accident, or mistake. The consequence was, that a man who had let property on a long building lease at a ground rent, could annex the whole of the lessee’s expenditure on the buildings, if the latter happened to commit some comparatively small breach of covenant—for instance, a covenant to keep the buildings in repair or insured. In such cases the penalty was out of all proportion to the fault.
In the year 1859, Courts of Equity were empowered by Lord St. Leonard’s Act,1 to grant relief against forfeiture for breach of a covenant to insure, and that provision was subsequently extended to Courts of Common Law.2
In 1876, and again in 1877 and 1880, Sir Alfred Marten (the chairman of our Board of Studies) carried Bills through the House of Commons for extending equitable relief to lessees who might incur forfeiture for breach of covenant, but for one reason or another these Bills did not become law.
The entire subject is, however, now governed by section 14 of the Conveyancing and Law of Property Act, 1881,3 which provides, that a right of forfeiture for breach of covenant or condition in a lease with certain specific exceptions,4 shall not be enforceable by action, or otherwise, unless, the lessor serves on the lessee a notice, specifying the breach, and requiring the lessee to remedy it, and the lessee makes default in doing so for a reasonable time.
The Court is given power to relieve, on equitable terms as to damages, the granting of an injunction to restrain further breaches, and so on.
Agricultural tenancies have received the particular attention of Parliament during the last quarter of the century—first by the Agricultural Holdings Act, 1875, and subsequently by the similar Act of 1883, which repealed the former. The provisions of this Act (since amended by the Agricultural Holding Act, 1900) are too complicated for me to give them in detail. All I can do is to state shortly the general scheme of the Act with regard to improvements. The general scheme is to make landlords liable to pay to their outgoing tenants compensation for unexhausted improvements. The Act goes into great detail as to the nature of these improvements, as to the mode in which the compensation is to be assessed, and the mode in which its payment is to be enforced. But the persons who framed the Act had to deal with the fact that landlords in England are nearly always only limited owners, that is to say, that the greater part of farm land is in settlement, and the landlord is generally only a tenant for life. It would, therefore, be unjust to make a landlord pay for improvements out of his own pocket without giving him any right to recover the amount paid from the settled estate in the event of his immediate death. The plan adopted in the Act is to make a tenant for life pay the compensation to the outgoing tenant, but to give him a right to obtain a charge upon the settled estate for the amount of the payments so made by him.
The Act of 1883 differs from the previous Act of 1875 in the important particular that the Act of 1883 cannot be negatived by contract, whereas the Act of 1875 might be, and in practice always was.
The law with regard to agricultural fixtures has, also, been modified by statute. The first Act is 14 and 15 Vic. c. 25, sec. 3; but the subject is now governed by section 34 of the Agricultural Holdings Act, 1883, which provides that all agricultural fixtures put up by a tenant after the commencement of the Act may be removed at, or within, a reasonable time after the expiration of the tenancy; but one month’s notice must be given to the landlord of the intention to remove, and the landlord has a right of pre-emption. Honour to whom honour is due. This reform of the law is again due to Sir Alfred Marten, who drafted and piloted through the Commons the clauses to the same effect in the Agricultural Holdings Act, 1875.
Fusion of Law and Equity
I now come to what at one time seemed to be the most important change of the 19th century in the realm of law, viz., the Judicature Act, 1873. At first it was thought by many that this Act would so completely fuse law and equity as to abolish the protective efficacy of the legal estate, and thereby do away with the necessity of legal conveyances.
It soon, however, became obvious that all the Act did was to fuse the Courts, and not the principles administered by them; that the old distinctions between the legal and equitable estate were still preserved; and that, in fact, persons who acquired the legal estate in property with all the formalities required by common law or statute, were still to be regarded as primâ facie the true owners, unless and until someone else could show that he had a better claim in equity. The purchaser who has been careful to embark in a legal estate, may still regard with a complacent mind a sea of contending equities which might otherwise engulf him. In fact, the main effect of the Judicature Act, so far as the fusion of law and equity is concerned, may be expressed in three lines from King Lear:
And perhaps it is as well that this was so. In 1875 Parliament purported to take away partially the protective efficacy of the legal estate in the case of mortgages, leaving rival innocent incumbrancers to rank according to the respective dates of their securities. The result was, however, so disastrous to the credit of persons wishing to borrow on mortgage, and particularly to builders and others accustomed to borrow by instalments, that a precipitate retreat had to be made, and the old rule was restored in the next session.1
The Practice of Conveyancing
So far I have been dealing with the changes in the general law of real estate. I now propose to draw your attention to changes relating to instruments by which the ownership of real estate is transferred from one person to another. Such transfers occur either mortis causa—in plain English, by wills—or inter vivos—i. e. by transfers made by living persons.
In the early part of the 19th century, a will of real estate had, under the provisions of the Statute of Frauds1 to be witnessed by three credible witnesses. If one of them was considered to be “incredible” (for instance if he were a convict, or even if he took beneficially under the will,) the entire will was void. Moreover, every general devise of land spoke from the date of the will, and not from the death of the testator; so that no freehold land acquired after the date of the will passed by it, unless the will was confirmed by a subsequent codicil. A devise of real estate without words of limitation, only prima facie passed a life estate to the devisee—a shocking injustice in the frequent case of an unlearned testator making his own will.
Copyholds, too, could not be devised at all, except by special custom, unless they were surrendered to the lord to uses to be declared by the will, or unless they were vested in trustees; so that, unless the formality of a surrender, or the creation of a previous trust had been effected, the will was useless so far as Copyholds were concerned. This absurdity was removed in 1815, by the Act 55 Geo. III. c. 192, which rendered devises of copyholds, though not surrendered to the use of the testator’s will, as valid as if they had been so surrendered. It conferred no new testamentary power, but merely supplied a simpler form of procedure.
However, the great reform of the century in relation to the law of wills, was made in 1837 by the Wills Act.2 By this Act a will is to be signed in the presence of two witnesses, instead of three, and the credibility of the witnesses is not to affect the validity of the will; but where a witness, or his or her husband or wife, is beneficially interested under the will, the will is good, but the gift to the witness is void. Wills are to speak, with regard to the real and personal estate comprised in them, from the death of the testator, and not, as formerly, from the date of the will. A gift to a child or other issue of the testator, who dies before him, leaving issue, no longer lapses as formerly, but takes effect as if the donee had died immediately after the testator.
The Wills Act also put the subject of revocation of wills on a better footing, providing that, among other acts, marriage should be an effectual (although perhaps an expensive) revocation. The act also made a general devise of lands, to include not only lands belonging to the testator, but also lands over which he has a general power of appointment.
But perhaps the most important change introduced by the Wills Act was the provision that, where real estate is devised to a person without words of limitation, it is to be construed as passing the fee simple, or other the whole estate of the testator, unless a contrary intention shall appear, thereby completely reversing the former rule.
There were other changes introduced by the Wills Act, too numerous or too technical to mention here, but those which I have specified were the most important.
Let us now turn to transfers of real estate by act inter vivos. At the commencement of the 19th century, conveyances of land on sale were usually carried out by the method known as a lease and release. In some cases, however, the time-honoured feofment with livery of seisin continued to be used. As I said in the last lecture, married women could only convey by means of the costly process called a fine, and tenants in tail by the still more costly process of a Common Recovery, for both of which simple deeds were substituted in 1833.
You will remember that the lease and release was an ingenious method of making conveyances without livery of seisin, depending for its efficacy on the Statute of Uses. A vendor first made a bargain and sale of the property to the purchaser for a year in consideration of 5s. Under the Statute of Uses this immediately vested the legal possession in the purchaser. Being thus in legal possession, the reversion which still remained in the vendor, was capable of being released by another deed, in which the true consideration for the transaction appeared. This method required two instruments, and was cumbersome and expensive; and it is astonishing that it took several centuries before its absurdity struck Parliament. It was not until 1841 that any attempt was made to put the matter on a more rational footing. In that year an Act was passed, by which it was provided, that a release, if expressed to be made in pursuance of that Act, should be as effectual as a lease and release. This was absurdly illogical, as a release was essentially an instrument releasing an outstanding right, in favour of one who already had a possessory interest. In 1845 the matter was put on a more satisfactory basis by the Real Property Act1 of that year, by which it was enacted that all corporeal hereditaments should thenceforth “be deemed to lie in grant, as well as in livery.” In other words, the old Common Law theory that actual delivery of possession, or the newer theory that a notional delivery by the aid of the Statute of Uses was necessary to a transfer of freehold land, was swept into the limbo of pedantic rubbish, and a simple deed of grant was made sufficient. This deed of grant is still the common form of conveyance.
Nevertheless, a deed of grant in 1901 is a very differently worded instrument to what it was in 1845. True, the framework is the same. The parties, recitals, and operative part still survive; but they are shorn of that extraordinary splendour of verbiage which distinguished documents, the draftsmen of which were paid at the rate of so much per 72 words.
This latter-day brevity is owing to the Conveyancing and Law of Property Act, 1881,2 not unassisted perhaps by the Solicitors’ Remuneration Act of the same year,3 by which the remuneration of solicitors takes the form of a commission on the purchase money instead of fees varying with the length of the documents. By the first of these Acts all the old and lengthy covenants for title entered into by a vendor were swept away, and implied statutory covenants were substituted. Such covenants now depend upon the capacity in which the vendor is expressed to convey the property. If he purports to convey as beneficial owner, one set of covenants are implied; if as trustee or mortgagee or personal representative, another set.
Moreover, instead of the lengthy covenant to produce deeds and keep them safe, a simple acknowledgment of the right to production, and an undertaking for safe custody, implies elaborate statutory duties in that behalf. In fact, to paraphrase the advertisement of a modern camera, if the practitioner has sufficient intelligence to put in the right catch-words the Act of Parliament does the rest.
I now approach the last branch of the subject, viz., the new system of land transfer, which was practically initiated in 1897. I say practically, because, theoretically it was first started in 1862. But it only became practical in 1897, because it was for the first time made compulsory in certain districts by the Land Transfer Act of that year.1
At present it is in an experimental stage, but although highly unpopular with the profession, I confess that it seems to me to be likely in course of time to supplant the present system. Its object is to cheapen and shorten the investigation which a purchaser or mortgagee of land has now to make by destroying the necessity for a continual repetition of investigations of title on sales or mortgages however closely they may follow each other.
Under the present system a purchaser under an open contract is entitled to have handed to him an abstract of every document affecting the title executed within the past 40 years. This abstract has to be compared with the original documents, the effect of each instrument has or ought to be considered by a lawyer, and deaths, pedigrees, and intestacies proved.
Now if this were done once for all, the expense on each subsequent sale or mortgage would be a trifle; but under the existing system, this expensive investigation has to be repeated ab initio every time that a sale or a mortgage is made.
It is this repeated investigation that registration of title is intended to avoid. The registrar keeps the histories of all titles on his books up to date, so that an intending purchaser or mortgagee has only to ask what the state of the title is, and the registrar is able to tell him at once who is the owner and what incumbrances or restrictions, if any, affect the property.
I am informed that in the U. S. (at all events in New York) the same thing has been effected in a different way by means of insurance companies. There, by payment of a small premium, a landowner can get his title investigated and guaranteed by an assignable policy, and this policy is accepted by purchasers and mortgagees in lieu of any investigation of his title. Some of us may think that this simple expedient might have been tried here; but whether owing to want of enterprise on the part of insurance companies, or what, I know not, I believe it has never been publicly suggested.
The first attempt at registration of title in England was made in 1862 when the late Lord Westbury succeeded in passing an Act to facilitate the proof of title and conveyance of real estate.
This Act was not compulsory. Its fatal defect was that it only provided for the registration of indefeasible titles after strict examination. The result was that Lord Westbury’s Act was practically a dead letter.
The next attempt was made by the late Lord Cairns in the Land Transfer Act, 1875, the broad principle of which was (1) that landowners could register with a mere possessory title, i. e. should not be bound to have their title investigated at all, and (2) that some person (not necessarily the fee simple owner) should be registered as proprietor, trusting to cautions and inhibitions lodged with the registrar, to prevent such registered proprietor (who is in reality a trustee for all persons interested) making away with, or incumbering the property, where he could not legitimately do so. This Act was not compulsory, and, mainly for that reason, was as complete a failure as Lord Westbury’s Act of 1862, and remained practically a dead letter until the present Chancellor promoted and safely piloted through Parliament the Land Transfer Act of 1897. This Act is in form merely supplemental to the Act of 1875, but it is in substance far more important, because, by containing provisions for gradually making the registration of titles compulsory throughout England1 on the occasion of sale, it has supplied the spark of life to the inert mass of the 1875 Act. Very wisely its author did not attempt to frame elaborate details, but reserved powers to refer such details to a Committee of experts who have issued an elaborate code of rules.
Let us examine the details of the new scheme so far as time will permit.
Freehold land (for the Acts do not relate to copyholds, and there are separate provisions as to leaseholds) may be registered with either
But it may be safely predicted that although section 17 of the Act of 1875 permits and encourages the registrar to give a certificate of absolute title to one who has merely a good holding title, and expressly reserves all questions of boundaries, but few proprietors will elect to register with anything but a possessory title. They did not do so before 1897, and there seems to be no new reason why they should go to the expense and risk under the Act of that year.
What, then, is the effect of registering land with a possessory title? The immediate effect is microscopic. In such cases, all that the registrar can say is—“On such and such a date, A registered this title as a possessory title. Whatever estate, if any, A then had, is now vested in B as his registered successor. But whether A was fee simple owner when he placed the title on the register, I cannot say, nor can I guarantee that the title is free from flaws before that date. You must therefore investigate the title of A up to the date when he first registered it, or else take the risk.” In other words, registration with a possessory title, does not in any way affect or prejudice the enforcement of any estate, right, or interest adverse to the estate of the first registered proprietor. The registrar, on the other hand, will be able to give a guarantee that whatever estate, if any, the first registered proprietor was entitled to, is now vested in the vendor as his successor. And of course, when property has been on the register for 40 or 50 years, so that all probabilities of the first registered proprietor having been a mere life tenant may be disregarded, then, practically, such a registered title will have become as good as an absolute one, and certainly as good as an ordinary marketable one.
The net result is, that until a possessory title has been registered for 40 years at least, it will not be safe to assume that it is a good one, or that a purchaser or mortgagee who fails to investigate the title prior to the first registration will get any relief or compensation if he should be turned out. And this danger is accentuated by the fact (regrettable, I think) that, by rule 18, a person who registers with a possessory title, is not bound to state whether the property is encumbered.
There are three registers to be kept, viz.:
The property register contains a description of the property and refers to a plan, the filing of which is compulsory. The property register also describes all easements and restrictive covenants existing for the benefit of the registered property.
The proprietorship register states whether the title is absolute, qualified, or possessory, specifies the registered proprietor, and contains a note of any cautions, inhibitions, and restrictions affecting his right of disposition.
The charges register shows not only mortgages and other incumbrances, if any, but also servitudes and restrictive covenants, with which the registered land is burdened. (Rules 3, 6, and 7.)
There is no investigation whatever of title on an application to register with a possessory title. Indeed it would swamp the scheme if there were. It has been estimated (and Lord Cairns satisfied himself in 1875, that the estimate was not far wide of the mark) that upwards of 1000 conveyances or mortgages are executed on every working day of the year. If on the registration of these transactions an official investigation had to be made, it is obvious that some thousands of skilled registrars would be needed.
Having regard to the custom of strictly settling estates in this country, and also to the frequency of mortgages, it is clear that in any system of registration of title, these facts must be taken into consideration. Consequently we find that the Act provides not merely that a fee simple owner may be registered as “proprietor,” but also:
But in whichever of these capacities a man is registered he becomes (qua the outside public) capable of selling and conveying or charging the fee simple. He is not registered as Trustee Proprietor, as Mortgagee Proprietor, or as tenant for life Proprietor, but simply and solely as proprietor.
You may ask, in that case, what safeguard is there for the beneficiaries, the mortgagor, or the remainderman, as the case may be. What is to prevent this fictitious statutory proprietor from selling the land, and pocketing the proceeds? The answer is, that where these limited owners are the first registered proprietors, then (as I have already mentioned), their proprietorship is by the Acts, made expressly subject to all estates rights and incumbrances existing at the date of that registration. Their position, qua purchasers, is no better and no worse than if he had never registered.
Where, however, a trustee, tenant for life, or mortgagee, is not the first registered proprietor, and the settlement or mortgage was not in existence at the date of the first registration, then, prima facie, the registered proprietor (although only in fact a limited owner) can sell, or convey, or charge the property, and confer a good title on his purchaser or mortgagee. I say prima facie, because the Acts and rules provide means by which the remainder-man (in the case of registered tenant for life proprietors), the beneficiaries (in the case of trustees) and the mortgagor (in the case of mortgagees) may protect themselves against the abuse by a registered proprietor of his statutory powers, viz.: by the registration of cautions, inhibitions, or restrictions.
A caution merely entitles the person giving it to notice of any intended transfer or charge. It is the equivalent of a stop order on a fund in Court. It would appear to be the appropriate safeguard of cestuis que trusts and equitable mortgagees.
An inhibition, while it remains in force, is a complete bar to any registered transfer or charge. It can only be placed on the register with the consent of the registered proprietor or the order of the registrar or the Court.
A restriction is a notification placed on the register with the assent of the registered proprietor, restraining registered transfers or charges without certain consents, or unless purchase money is paid to certain persons. It is apprehended that restrictions and inhibitions will be the appropriate safeguard where trustees for sale, or tenants for life, are the registered proprietors. Take for example the case of a tenant for life; form 6 appended to the rules gives the formal restriction and inhibition in the following words:
“Restriction.—Until further order, no transfer of the land is to be made except on sale or exchange, and the purchase moneys on sale are to be paid to A. B. and C. D., or into Court. No sale of the mansion house and land shown and edged red on the plan attached hereto is to be made without the consent of the said A. B. and C. D., or of the Court, and no charge is to be created without the consent of A. B. and C. D.
Inhibition.—On the death of E. F. (the reg. pro.) no entry is to be made until further order.”
In this form you see that the power of sale and exchange given to tenants for life by the Settled Land Acts is preserved, subject to the conditions annexed by these Acts to the exercise of the power, viz., that the purchase money is to be paid into Court or to two trustees. But, as these Acts give no powers to mortgage except for very restricted purposes, the restriction prevents the tenant for life charging the property, as he would (as registered proprietor) be otherwise capable of doing. Then, again, as the Settled Land Acts prohibit the sale of the principal mansion house without the consent of trustees or Court, the registered restriction provides for that. And, lastly, the inhibition prevents any attempt by the personal representatives of the tenant for life getting themselves placed on the register.
Subject to the safeguards afforded by cautions, inhibitions, and restrictions, however, and to estates, incumbrances, and interests, existing at the date of the first registration of a possessory title, a registered proprietor has full power to confer on a purchaser or chargee, a good title free from the claims of persons whose interests have arisen since the date of the first registration; even (according to section 83 of the 1875 Act as amended by the Act of 1897), although such purchaser or mortgagee has notice of such interests. That provision at first sight seems monstrous, but its bark is worse than its bite, because, as I shall presently show you, any person who is injured, and who has not by carelessness contributed to his injury, will get compensation from the State.
Curiously enough, although a registered proprietor can thus deal with the land itself, so as to defeat the rights of persons who have not entered cautions or restrictions or obtained inhibitions, the Acts do not enable him to create easements or profits with a similarly clear title; so that he who purchases a right of way over land, would, it would seem, have to investigate the title of his vendor to create the right—surely a strange anomaly. Still stranger is the fact (at least it seems to me to be the fact) that although the Acts give a registered proprietor (against whom there are no cautions, inhibitions, or restrictions) full power to alienate the fee simple, they give him (at all events not in express terms) no corresponding power to create unimpeachable leases. A lessee, therefore, who is taking a long term with the view of spending money on property (e. g. under a building or mining lease) will apparently still have to investigate the title of the registered proprietor to grant the lease.
A similar remark applies to all persons whose rights are not in possession. The registered proprietor must always be the man entitled to possession. The Act makes no provision for registering titles in reversion or remainder, or the equitable rights of beneficiaries. If, therefore, a reversioner, or remainder-man, or beneficiary, wishes to sell or mortgage his interest in registered land, the register will be useless to him, and his title will still have to be investigated in the old way.
I now turn to a different branch of the subject. What is to happen where, owing to fraud or mistake, the register does not represent the true state of the title, so that someone has blundered and someone is injured? The answer is, that the injured party will receive compensation from the State. It was one of the many weaknesses of the Act of 1875 that by making the register infallible in favour of purchasers or mortgagees who acted on the faith of it, it threatened the security of landowners whose estates were acquired after the first registration (even of those in possession) without giving them any compensation. A bona fide purchaser for value who got on the register, was apparently secure, even although he claimed under a forged transfer; and the unfortunate true owner, even when in possession, was liable to be ousted without a penny of compensation. This was one of the many reasons why lawyers dissuaded clients from registering their titles under the Act of 1875. The Act of 1897 has recognised the injustice of this, and absolutely safeguards the true owner who is in possession. Any fraudulent or erroneous entry in the register to which he is no party is not to affect him. On the other hand, any other person who is injured by it, will be compensated in money by the State, and the register will be rectified.
Possession is still therefore a strong fortress of the law, but it is not so strong as it has heretofore been; because the register, and not possession, is prima facie evidence of title. So that where the register has been fraudulently or erroneously tampered with, the onus of proof will be shifted to the man in possession.
However, even a true owner who is ousted, will not get compensation where “he has caused or substantially contributed to the loss by his act, neglect, or default”; and the omission to register a sufficient caution or inhibition or other restriction, to protect a mortgage by deposit or other equitable interest, is to be “deemed to be a neglect”1 —a plain hint to beneficiaries to look sharply after their trustees.
In order to make the register, and the register only, the true test of title, sec. 12 of the Act of 1897 contains a very strong and debatable enactment in these words:
“A title to registered land adverse to or in derogation of the title of the registered proprietor shall not be acquired by any length of possession, and the registered proprietor may at any time make an entry or bring an action to recover possession of the land accordingly.” In other words, the Statutes of Limitation are not to apply to registered land. It is true that the section goes on to provide that where a person not on the register, has been in possession for a period sufficient to give him a title under the Statute of Limitations, he may apply to the Court to rectify the register in his favour. But the necessity of commencing active litigation is very different to the acquisition of a title by passive possession; and moreover, the Court is only to rectify the register subject to any rights acquired for valuable consideration on the faith of the register. Here, then, is another assault on the fortress of possession. Registration and not possession will be the nine points of the law in future. Mr. Cherry, in his excellent book on the Acts, points out that the draftsman seems to have confused registration of title and possession. “All that a register can properly do is to show the state of the paper title, and a purchaser or a mortgagee ought to satisfy himself by enquiries on the spot as to whether he will get possession under that paper title. The point is not merely academic. Take the case where A purchases land from B, but owing to some mistake or carelessness of his solicitor plot X is not described in the registered map. A goes into possession, and retains possession of plot X, say, for twenty years, and perhaps builds on it. Plot X all this time remains on the register in B’s name, and on his (B’s) death his executors sell and convey to C, who gets himself registered. Here it seems plain that A, the real owner, will lose plot X, and get no compensation, although if C had taken the simple precaution of asking on the premises, he would have learnt of the mistake.”
So far as to registration. Now a few words as to transfer of registered land. A transfer, then, is to be made under rule 77 by an instrument in a prescribed form.
Here is the form:
25th March, 1900. In consideration of £ NA, I, A B, of, etc., hereby transfer to C D, of, etc., the land comprised in the title above referred to.
Signed, sealed, and delivered, etc.”
The transfer being made, the registrar keeps it, and hands to the transferee a scrap of paper called a “land certificate,” which henceforth is his sole evidence of title. The bulky and imposing sheepskin so familiar to us all, on which, in the pompous metaphor of legal writers, a landowner is entitled to sit, will gradually give place to this single attenuated document; so that, apparently, in the fulness of time, the English landowner will become a kind of territorial cherub.
With regard to transmission of registered land on the death of a registered proprietor, the appointment of a real representative by the Act of 1897 has greatly facilitated matters, because it has created a person with whom the registrar can deal.
Where, however, the land is settled, the question is not so simple, and this, I fancy, is where the officials will find the shoe pinches. For instance, where the deceased is only tenant for life, the property does not vest on his death on his real representative, and the registrar has to look to someone else to deal with. Where possible, the trustees of the settlement (if any) are to undertake this duty.
There are, however, many cases where either there are no trustees of a settlement or they are supine. In such cases any person interested may apply for the registration of a new proprietor. In that case (and here the difficulty arises) the registrar must enquire into the terms of the settlement, settle draft restrictions and inhibitions, give notice to the trustees (if any), to the succeeding tenant for life, and such other persons as he may think fit, and, if no valid objection is made, enter the successor as proprietor.
So much for the registration of freehold titles.
The Acts and rules also make provision for the registration of leasehold titles much on the same lines. All I need say on this subject is, that in areas where registration is compulsory all new leases, (and also transfers on sale of all existing leases) having at least 40 years to run, must be registered.
We now come to the very important subject of mortgages of registered land, and, curiously enough, the Acts and rules make no provisions whatever for legal mortgages in the ordinary sense. If a regular legal mortgage is required the only way of creating it is to imitate the present mode of making a mortgage of stocks or shares, viz., to substitute the mortgagee as the registered proprietor, and then to regulate the equitable rights of the parties by a collateral deed, which is not entered or noticed on the register at all.
What the Act of 1875 does do, however, is to create a new kind of statutory mortgage, called a registered charge. This charge is really an equitable charge. It does not pass the legal estate to the chargee, but merely gives him a lien with certain implied covenants for payment of principal and interest, and statutory powers of sale, foreclosure, etc. (Secs. 22-28).
Now, if the land be registered with an absolute or qualified title, these registered charges may be well enough, because they are to rank inter se in order of registration. But where land is registered (as most land will be) with a possessory title, then, as all registered dealings are to be subject to unregistered dealings entered into prior to the date of the first registration, a registered charge will be nothing more or less than an equitable mortgage, which, as we all know, is subject to all prior equitable mortgages and claims, whether known or unknown. That is not a very enticing prospect, and, therefore, I imagine that for many years to come registered charges will be neglected in favour of true legal mortgages, in which the mortgagee will insist upon being placed on the register as proprietor of the land, so as to get the protection of the legal estate, the mortgage itself being regulated by a collateral deed. But in addition to regular mortgages, we all know that there is, under the present system, an important class of equitable mortgages, known as mortgages by deposit of deeds. To the commercial community this is, perhaps, the most important, because it is the way in which a commercial man can instantly, without any delay whatever, raise money from his bankers. He deposits his pile of sheepskins, and the money is at once carried to his credit. How is this to be effected under the new system? The answer is, by deposit of his land certificate (sec. 8 sub-sec. 4 Act of 1897). In one way this new form of mortgage will be a better security than the old one. Under the present system a mortgagee under a deposit of deeds takes subject to all prior equities, whether he has notice of them or not. Under sec. 8 sub-sec. 4 of the Act of 1897 a mortgagee, by deposit of a land certificate, would seem to oust all equities prior to the date of the certificate which are not entered on it, and this would seem to enable a fraudulent trustee whose cestuis que trusts have not entered cautions, to give a valid charge on the trust estate. On the other hand, a mortgagee by deposit of the land certificate, does not gain priority over charges entered since the date of the certificate, and is bound to make enquiries as to subsequent charges, from the registrar, which he can do, however, by telegram. He must also—and this is of the utmost importance—give a notice to the registrar by registered letter or otherwise of his mortgage. Curiously enough, the common case of a mortgage by deposit with a bank, to secure an overdraft, is not specifically dealt with; and it may be plausibly argued that in such cases the banker would have on each occasion of cashing a cheque, to search the register for subsequent incumbrances. I think, however, that this cannot be so, as the effect would be to make such charges absolutely useless, and to dislocate commerce in the most disastrous manner. The true view seems to me to be, that a mortgagee by deposit to secure a current account, having notified his charge to the registrar, may safely continue to make advances until he receives actual notice to stop from a subsequent incumbrancer.
Such is a brief review of the new conveyancing, which, like the new woman, is still somewhat of an experiment. Some nervous practitioners fancy that it is the Banshee whose appearance portends the death of that quiet and respectable figure, the conveyancing counsel. I myself have no such fears. So long as the English land laws retain their present complexity experts will be required to advise upon them; and so long as wills, settlements, and leases, not to mention partnership deeds and contracts, have to be drawn, the wise saying of King Solomon will hold good that “without counsel purposes are disappointed.”
[1 ]This Essay was originally published in the Harvard Law Review, 1890, Vol. III, pp. 23-40, 313-328, 337-346. Additions are indicated by brackets.
[2 ]A biographical note of this author is prefixed to Essay No. 43, in Volume II of this Collection.
[3 ]1 Rot Cur. Reg. 451; 1 Stat. of Realm, 230, or Bract. f. 136 b; Y. B. 14 Edw. II. 409.
[1 ]Williams, Seisin, 7. See also Leach v. Jay, 9 Ch. Div. 42, 44, 45. [Two joint disseisors become joint tenants. Putney v. Dresser, 2 Met. 583; Litt. § 278.]
[2 ]Fitz. Ab. Tresp. 153.
[3 ]Finch, Law, Book III. c. 6.
[4 ]27 Ass. pl. 64. See also Y. B. 2 H. IV. 12-51. There is a legal curiosity in 2 Roll. Ab. 553 [Q] 1, 2. “If my servant, without my knowledge, put my beasts in another’s land, my servant is the trespasser and not I; because, by the voluntary putting of the animals there without my consent, he gains a special property for the time, and so for this purpose they are his animals. But, semble. if my wife puts my beasts in another’s land, I, myself, am trespasser, because the wife cannot gain a property from me.”
[5 ]Y. B. 8 Ed. III. 10-30.
[1 ][C stole from B goods which B had stolen from A. An indictment against C describing the goods as the property of B was held good in Ward v. People, 3 Hill, 395.]
[2 ]Y. B. 30 & 31 Ed. I. 508, 512, 512-514, 526: Fitzh. Coron. 95, 162, 318, 319, 367, 379, 392; Fitzh. Avow. 151: Dickson’s Case, Hetl. 64. Under certain circumstances the victim of the theft might obtain restitution of the goods. But the cases cited in this note show the difficulties that must be surmounted.
[3 ]For the best discussion of the doctrine of disseisin of land see Maitland “Mystery of Seisin,” 2 L. Q. Rev. 481, to which the present writer is indebted for many valuable suggestions.
[1 ]Partridge v. Strange, Plow. 88, per Montague, C. J. [See also Doe v. Evans, 1 Q. B. 717, and 1 Platt, Leases, 50. Bract. f. 376, 5 Tw. Bract. 456; 7 Seld. Socy., Mirror of Justice, 74-75; Co. Litt. 266, a.]
[2 ]8 & 9 Vict. c. 106, § 6. See Jenkins v. Jones, 9 Q. B. Div. 128.
[3 ]Arkansas, California, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, Oregon, Vermont, Virginia, West Virginia, Wisconsin, Arizona, Idaho, Utah, Wyoming.
[4 ]Delaware, District of Columbia, Maryland, New Hampshire, Ohio, Pennsylvania, South Carolina, Texas.
[5 ]Bernstein v. Humes (1877), 60 Ala. 582; Conn. Rev. Stat. (1875) 354, § 15; Dak. Civil C. § 681; Doe v. Roe (1869), 13 Fla. 602; Russell v. Doyle (1886), 84 Ky. 386, 388; Sohier v. Coffin (1869), 101 Mass. 179; Rawson v. Putnam (1880), 128 Mass. 552, 554; Webster v. Van Steenburgh (1864), 46 Barb. 211; Murray v. Blackledge (1874), 71 N. Ca. 492; Burdick v. Burdick (1884), 14 R. I. 574; Tenn. Code (1884), § 2446; [Probst. v. Bush, 115 Ala. 495; Levy v. Cox, 22 Fla. 546; Reyes v. Middleton, 36 Fla. 99; Smith v. Klay, 47 Fla. 216; Doe v. Edmondson (Fla. 1906) 40 So. R. 505; Davitte v. So. Co. 108 Ga. 665; Lowe v. Bivens, 112 Ga. 341; Gately v. Weldon, 12 Kv. L. Rep. 621; Sneed v. Hope, 16 Ky. L. Rep. 871; Terry v. Hilton, 20 Ky. L. Rep. 367; Preston v. Breckenridge, 86 Ky. 619 (semble); Joyce v. Dyer, 189 Mass. 64; Thomas v. Perry (New Jersey law), Pet. C. C. 49; Pearce v. Moore, 114 N. Y. 256; Dever v. Hagerty, 169 N. Y. 481; Gilmore v. Dolan, 114 N. Y. Ap. Div. 774; Green v. Horn, 128 N. Y. Ap. Div. 686; Huston v. Scott (Okla. 1908), 94 Pac. R. 512; Galbraith v. Payne, 12 N. Dak. 164; Schneller v. Plankinton, 12 N. Dak. 561; Randolp. v. Kinney, 3 Rand. 394, 396.]
[6 ]1 Jarm. Wills (4 ed.), 49; Poor v. Robinson, 10 Mass. 131; Mass. Rev. St. c. 62, § 2. [Y. B. 39 Hen. VI, 18-23.]
[7 ]Smith v. Coffin, 2 H. Bl. 444.
[1 ][Carr v. Anderson, 6 N. Y. Ap. Div. 6, 10.]
[2 ]This principle was not maintained in its full integrity in the time of Coke. See Maitland, 2 L. Q. Rev. 486, 487, where the authorities are fully collected. [“As if a man be disseised and after be outlawed, he shall not forfeit the profits of the land,” Beverley’s Case, Goldsb. 55, pl. 8.]
[1 ]Co. Lit. 118 b.
[2 ]Co. Lit. 117 a.
[3 ]3 & 4 Wm. IV. c. 105.
[4 ]Perk. § 366; Thompson v. Thompson, 1 Jones (N. Ca.), 431; 1 Washb. R. P. (5 ed.) 225, 226; [Y. B. 24 Ed. III. 65, a-69 per Shard; Carr v. Anderson, 6 N. Y. Ap. Div. 6].
[5 ]2 L. Q. Rev. 486; 1 Bishop, Mar. W. § 509; Den v. Demarest, 1 Zab. 525, 542.
[6 ]Baker v. Oakwood, 49 Hun, 416.
[7 ]Stamere v. Amonye, 1 Roll. Abr. 888, pl. 5; [Gilb. Executions, 42; Doe v. Minthorne, 3 Up. Can. Q. B. 423 Accord].
[8 ]Campbell v. Point St. Works, 12 R. I. 452. McConnell v. Brown, 5 Mon. 478; [Farmers Bank v. Pryse, 25 Ky. L. Rep. 807] Accord. By statute or judicial legislation a different rule prevails in some jurisdictions. Doe v. Haskins, 15 Ala. 619; McGill v. Doe, 9 Ind. 306; Blanchard v. Taylor, 7 B. Mon. 645; Hanna v. Renfro, 32 Miss. 125, 130; Rogers v. Brown, 61 Mo. 187 (semble); Truax v. Thorn, 2 Barb. 156; Jarrett v. Tomlinson, 3 Watts & S. 114; Kelley v. Morgan, 3 Yerg. 437.
[1 ]Bract. 165 a; Bateman v. Allen, Cro. Eliz. 437, 438; Asher v. Whitlock, L. R. 1 Q. B. 1.
[2 ]Christy v. Alford, 17 How. 601; Weber v. Anderson, 73 Ill. 439.
[3 ]Asher v. Whitlock, L. R. 1 Q. B. 1; Haynes v. Boardman, 119 Mass. 414.
[4 ]1 Platt, Leases, 51.
[5 ]Watkins, Descents (4 ed.), 4, n. (c); Currier v. Gale, 9 All. 522. [Janes v. Holmden, (Kan. Ap.) 52 Pac. R. 913.]
[6 ]2 L. Q. Rev. 487, 488.
[7 ]Sheetz v. Fitzwalter, 5 Barr, 126; Talbot v. Chamberlain, 3 Paige, 219; Murray v. Emmons, 19 N. H. 483; [Switzer v. Skiles, 8 Ill. 529, 532; Richards v. Jenkins, 18 Q. B. Div. 451].
[8 ]Colgan v. Pellew, 48 N. J. 27; 49 N. J. 694.
[9 ]Hale v. Munn, 4 Gray, 132; McEntire v. Brown, 28 Ind. 347; Randolph v. Doss, 4 Miss. 205; 1 Scribner, Dower, 255, 256, 353, 354.
[10 ]Travis v. Continental Co., 32 Mo. Ap. 198, 206.
[11 ]Anon. Dy. 5, a.
[12 ]Y. B. 19 Hen. VI. 32-66.
[13 ]Hawksbee v. Hawksbee, 11 Hare, 230.
[14 ]Anstee v. Nelms, 1 H. & N. 225, 232; Asher v. Whitlock, L. R. 1 Q. B. 1; Board v. Board, L. R. 9 Q. B. 48; Dalton v. Fitzgerald,  2 Ch. 86,  1 Ch. 446.
[1 ]McConnaughy v. Wiley, 33 Fed. 449; Halleck v. Mixer, 16 Cal. 574, 579; Page v. Fowler, 28 Cal. 605, 39 Cal. 412; Martin v. Thompson, 62 Cal. 618; Groom v. Alstead, 101 Cal. 425; Ophir Co. v. Superior Court, 147 Cal. 468, 477; Anderson v. Hapler, 34 Ill. 436; Nichols v. Dewey, 4 All. 386, 387; Lehigh Co. v. N. J. Co. 55 N. J. 350; De Mott v. Hagerman, 8 Cow. 220; Van Etten v. Caines, 3 Keyes, 329, 333; Stockwell v. Phelps, 34 N. Y. 363; Samson v. Rose, 65 N. Y. 411, 419, 431 (semble); Hinton v. Walston, 115 N. Ca. 7; Mather v. Trinity Church, 3 S. & R. 509; Brown v. Caldwell, 10 S. & R. 114; Powell v. Smith, 2 Watts, 126; Nat. Co. v. Weston, 121 Pa. 485; Griffin v. Pipe Lines, 172 Pa. 580; Churchill v. Ackerman, 22 Wash. 227; Clark v. Clyde, 25 Wash. 661. The rule is otherwise in Michigan. McKinnon v. Master, 104 Mich. 642.
[2 ]Bigelow v. Jones, 10 Pick. 161; Stockman v. Phelps, 34 N. Y. 363; Baker v. Howell, 6 S. & R. 476 (semble).
[3 ]Brothers v. Hurdle, 10 Ired. 490; Branch v. Morrison, 5 Jones, (N. Ca.) 16; 6 Jones, (N. Ca.) 16; Roy v. Gardner, 82 N. Ca. 454; Lehman v. Kellerman, 65 Pa. 489 (overruling Elliott v. Powell, 10 Watts, 453). If, however, the disseisee recovers the seisin of the land he may proceed against the disseisor for the chattels or their value, being treated, by the fiction of relation, as if he had held the seisin all the time. But as this fiction of relation is based upon justice it will not be created to the prejudice of one who has bought the severed chattels of the disseisor without notice of the disseisin. Page v. Fowler, 39 Cal. 412; Johnston v. Fish, 105 Cal. 420; Brothers v. Hurdle, 10 Ired. 490, 492; Faulcon v. Johnston, 102 N. Ca. 264; Pac. Co. v. Isaacs (Oreg. 1908) 96 Pac. R. 460; Reilly v. Crown Co. 213 Pa. 595.
[4 ]1 Nich. Britt. 57, 116. The right of self-help in general was formerly greatly restricted. The disseisee’s right of entry into land was tolled after five days. If he entered afterwards, the disseisor could recover the land from him by assize of novel disseisin. Maitland, 4 L. Q. Rev. 29, 35. So the writ of ravishment of ward would lie against one entitled to the ward if he took the infant by force from the wrongful possessor. Y. B. 21 & 22 Ed. I. 554. The lord must resort to his action to recover his serf, if not captured infra tertium vel quartum diem. 4 L. Q. Rev. 31. A nuisance could be abated by act of the party injured, only if he acted immediately. Bract. f. 233; 1 Nich. Br. 403.
[5 ]Originally any taking without right, like killing by accident, was felonious. In Bracton’s time, if not earlier, the animus furandi was essential to a felony. Bract. f. 136 b.
[1 ]See cases cited supra, p. 543, n. 2.
[2 ]A case of the year 1199 (2 Rot. Cur. Reg. 34) seems to be the earliest reported instance of an action of trespass in the royal courts. Only a few cases are recorded during the next fifty years. But about 1250 the action came suddenly into great popularity. In the Abbreviatio Placitorum, twenty-five cases are given of the single year 1252-1253. We may infer that the writ, which had before been granted as a special favor, became at that time a writ of course. In Britton (f. 49), pleaders are advised to sue in trespass rather than by appeal, in order to avoid “la perilouse aventure de batayles.” Trespass in the popular courts of the hundred and county was doubtless of far greater antiquity than the same action in the Curia Regis. Several cases of the reign of Henry I. are collected in Bigelow, Placita Anglo-Normannica, 89, 89, 98, 102, 127.
[3 ]In early English law, as in primitive law in general, the principle of parsimony did not permit concurrent remedies. The lines were drawn between the different actions with great sharpness. The right to sue a trespasser in replevin and detinue was a later development, as will be explained further on.
[1 ]Y. B. 21 Ed. IV. 74-6. See to the same effect Bro. Ab. Ej. Cust. 8, and Tresp. 256; Y. B. 2 Ed. IV. 5-9, per Needham, J.; Y. B. 4 H. VII. 5-1; Y. B. 16 H. VII. 3, a-7; Staunf. Pl. Cor. 61, a; Harris v. Blackhole, Brownl. 26; [Day v. Austin, Ow. 70; Walgrave v. Skinner, Ow. 120].
[2 ]Bro. Ab. Tresp. 358.
[3 ]Y. B. 21 H. VII. 39-49. See also Y. B. 2 Ed. IV. 5-9. 2 Wms. Saund. 47 c; Wright & Pollock, Possession, 169.
[1 ]Bract. 161 b; Sparks Case, Cro. El. 676; Co. Lit. 57 a, n. (3); Booth, R. Act. (2d ed.) 285; 2 L. Q. Rev. 488; [1 Nich. Britt, 278, 287, Note in MS. N; Blunden v. Baugh, Cro. Car 302, 304].
[2 ]The conveyance was not necessarily coextensive with the acquisition. If the feoffment was for life the reversion was in the feoffor. Challis, R. Prop. 329.
[3 ]Ab. Pl. 265, col. 2, rot. 5; 5 Rot. Par. 139 b.
[4 ]Y. B. 20 H. VII. 1-1; Rex v. Cotton, Park. 113, 121.
[5 ]Accordingly, even after replevin became concurrent with trespass, if a plaintiff had both writs pending at once for the same goods, the second writ was abated for the “contrairiositie” of the supposal of the two writs. Y. B. 8 H. VI. 27-17; 22 H. VI. 15-26; 14 H. VII. 12-32.
[1 ]1 Nich. Britt. 138. “If the taker or detainer admit the bailiff to view and avow the thing distrained to be his property, so that the plaintiff has nothing therein, then the jurisdiction of the sheriff and bailiff ceases. And if the plaintiff is not villein of the deforceor, let him immediately raise hue and cry; and at the first county court let him sue for his chattel, as being robbed from him, by appeal of felony, if he thinks fit to do so.” Compare the case of an estray. 1 Nich. Britt. 68. “If the lord avow it to be his own, the person demanding it may either bring an action to recover his beast as lost, in form of trespass, or an appeal of larceny, by words of felony.”
[2 ]Y. B. 21 & 22 Ed. I. 106; Y. B. 32 & 33 Ed. I. 54. If the defendant, instead of claiming title in himself, alleged title in a third person, he could only defeat the action by proof of the fact alleged. Y. B. 32 Ed. I. 82; Y. B. 34 Ed. I. 148.
[3 ]Y. B. 5 Ed. III. 3-11. The argument of the defendant, “And although we are come to court on your suit, we shall not be in a worse plight here than before the sheriff; for you shall be driven to your writ of trespass or to your appeal, and this writ shall abate,” though supported by the precedents, was overruled. See also Y. B. 21 Ed. IV. 64 a-35, and Y. B. 26 H. VIII. 6-27. There is an echo of the old law in Y. B. 7 H. IV. 28 b-5. “And also it was said that if one claims property in court, against this claim the other shall not aver the contrary—credo quod non est lex.”
[1 ]Y. B. 1 Ed. IV. 9-18.
[2 ]Y. B. 7 H. IV. 28 b-5, per Gascoigne, C. J.; Y. B. 19 H. VI. 65-5, per Newton, C. J.; Y. B. 2 Ed. IV. 16-8, per Danby, C. J.; Y. B. 6 H. VII. 7-4, per Brian, C. J., and Vavasor, J.; Y. B. 14 H. VII. 12-22. In fact, there are no reported cases of replevin for trespass from the time of Edward III. to the present century. See Mellor v. Leather, 1 E. & B. 619. Almost at the same time that the scope of replevin was enlarged, there was a similar duplication of remedies against the disseisor of land. Originally, if we except the writ of right, the assize of novel disseisin (or writ of entry in the nature of assize), which was the counterpart of trespass de bonis asportatis, was the exclusive remedy against a disseisor. Trespass quare clausum fregit was confined to cases of entry not amounting to an ouster. If, therefore, the defendant in a writ of trespass claimed the freehold, the writ was abated. The plaintiff must proceed against him as a disseisor by the assize. 2 Br. Note Book, 378; Ab. Pl. 142, col. 1, rot. 9 ; Ab. Pl. 262, col. 1, rot. 18 . About 1340, trespass quare clausum was allowed for a disseisin. Y. B. 11 & 12 Ed. III. 503-505, 517-519; Y. B. 14 Ed. III. 231.
[3 ]Y. B. 19 H. VI. 65-5.
[4 ]Br. Ab. Replev. 39; Y. B. 6 H. VII. 8 b-4; Y. B. 14 H. VII. 12-22; Russell v. Pratt, 4 Leon. 44-46; Bishop v. Montague, Cro. Eliz. 824; Bagshaw v. Gaward, Yelv. 96; Coldwell’s Case, Clayt. 122, pl. 215; Power v. Marshall, 1 Sid. 172; 1 Roper, H. & W. (Jacob’s ed.) 169.
[1 ]Mennie v. Blake, 6 E. & B. 847.
[2 ]Y. B. 24 Ed. III. 41 a-22; Y. B. 43 Ed. III. 29-11; [Seld. Soc. Sel. Cas. Ch. No. 116]
[3 ]Y. B. 16 Ed. II. 490. But see Y. B. 9 H. V. 14-22.
[4 ]Y. B. 11 H. IV. 46 b-20; Y. B. 10 H. VII. 7-14.
[5 ]Y. B. 2 Ed. III. 2-5.
[6 ]Y. B. 6 H. VII. 9-4. See also 1 Ch. Pl. (7 ed.) 137.
[7 ]4 Leon. 44, 46.
[8 ]Ow. 70.
[1 ]Bishop v. Montague, Cro. El. 824, Cro. Jac. 50.
[2 ]Y. B. 2 Ed. IV. 16-8; Perk. § 92.
[3 ]Bro. Ab. Replev. 39.
[4 ]Y. B. 6 H. VII. 9-4.
[5 ]Y. B. 10 H. VII. 27-13.
[1 ]4 Leon. 44, 46. See also Rosse v. Brandstide, 2 R. & M. R. 438, 439; Benjamin v. Bank, 3 Camp. 417.
[2 ]Shep. Touch. (6 ed.) 240, 241.
[3 ]11 Ill. 558. To the same effect, Goodwyn v. Lloyd, 8 Port. 237; Brown v. Lipscomb, 9 Port. 472; Dunkin v. Williams, 5 Ala. 199; O’Keefe v. Kellogg, 15 Ill. 347; Taylor v. Turner, 87 Ill. 296 (semble); Stogdel v. Fugate, 2 A. K. Marsh. 136; Young v. Ferguson, 1 Litt. 298; Gardner v. Adams, 12 Wend 297; Morgan v. Bradley, 3 Hawks, 559; Stedman v. Riddick, 4 Hawks, 29; Overton v. Williston, 31 Pa. 155.
[1 ]Erickson v. Lyon, 26 Ill. Ap. 17.
[2 ]31 Pa. 155, 160.
[3 ]Staunf. Pl. Cor. 60, b.
[4 ]4 Ed. III. c. 7.
[5 ]Russell v. Pratt, 4 Leon. 44; Le Mason v. Dixon, W. Jones, 173.
[6 ]Y. B. 47 Ed. III. 23-55; Fitz. Ab. Replic. 70; Y. B. 7 H. VI. 35-36; Y. B. 28 H. VI. 4-19. See Hudson v. Hudson, Latch, 214.
[7 ]Fitz. Ab. Replic. 60.
[8 ]Finch, Law, Bk. 2, c. 15.
[1 ]Edwards v. Hooper, 11 M. & W. 363.
[2 ]“Where the conversion takes place before the bankruptcy, the assignees have a right of action, but have not the property in the goods.” Lord Abinger, in Edwards v. Hooper, 21 L. J. Ex. 304, 305. The learned Chief Baron evidently used “property” as Brian, C. J., did, in contradistinction to right of property.
[3 ]Y. B. 29 Lib. Ass. pl. 63. See also Y. B. 6 H. VII. 9-4, and 10 H. VII. 27-13.
[1 ]“If the beasts of my villein are taken in name of distress, I shall have a replevin, although I never seized them before, for the property is in my villein, so that suing of this replevin is a claim which vests the property in me. But it is otherwise if he who took the beasts claimed the property.” Fitz. Ab. Replevin, 43. Coke, following Fitzherbert, says: “If the goods of the villein be taken by a trespass, the lord shall have no replevin, because the villein had but a right” Co. Lit. 145 b.
[2 ]Fitz. Ab. Replevin, 43.
[3 ]Gilb. Eq. 234. See also Co. Lit. 351 a, b; 4 Vin. Ab. 53; Y. B. 20 Ed. I. 174; Milne v. Milne, 3 T. R. 627.
[4 ]Magee v. Toland, 8 Port. 36 (semble); McNeil v. Arnold, 17 Ark. 154, 178 (semble); Fightmaster v. Beasley, 1 J. J. Marsh. 606; Duckett v. Crider, 11 B. Mon. 188, 191 (semble); Sallee v. Arnold, 32 Mo. 532, 540 (semble); Johnston v. Pasteur, Cam. & Nor. 464; Norfeit v. Harris, Cam. & Nor. 517; Armstrong v. Simonton, 2 Tavl. 266, 2 Murph. 351, s. c.; Spiers v. Alexander, 1 Hawks, 67, 70 (semble); Ratcliffe v. Vance, 2 Mill, Const. R. 239, 242 (semble); Harrison v. Valentine, 2 Call, 487, cited. See also 1 Bishop, Mar. Wom. § 71. But see contra, Wellborne v. Weaver, 17 Ga. 267, 270 (semble); Pope v. Tucker, 23 Ga. 484, 487 (semble).
[1 ]Freeman, Executions (2d ed.), s. 112. See to the same effect Wier v. Davis, 4 Ala. 442; Horton v. Smith, 8 Ala. 900; Doe v. Haskins, 15 Ala. 620, 622 (semble); Thomas v. Thomas, 2 A. K. Marsh. 430; Commw. v. Abell, 6 J. J. Marsh. 476.
[2 ]Bro. Ab. Tresp. 433; Maynard v. Bassett, Cro. El. 819; Woadson v. Newton, 2 Str. 777.
[3 ]James v. Pritchard, 7 M. & W. 216; Bigelow, Estoppel (4th ed.), 489, 490; Bohannon v. Chapman, 17 Ala. 696.
[4 ]Shelbury v. Scotsford, Yelv. 23; Bigelow, Estoppel, 490; [Y. B. 5 Hen. VII 15-5].
[5 ]Norment v. Smith, 1 Humph. 46 and Moffatt v. Buchanan, 11 Humph. 369, are contra. But these decisions seem indefensible.
[6 ]Supra, p. 24, n. 3; Y. B. 6 H. VII. 9-4.
[7 ]Hodges v. Sampson, W. Jones, 443; Keyworth v. Hill, 3 B. & Ald. 685. In Tobey v. Smith, 15 Gray, 535, a count alleging a conversion by the wife of A to their use was adjudged bad on demurrer. The conversion should have been laid to the use of the husband only.
[1 ]2 Bl. Com. 199. See also ibid. 196: “And, at all events, without such actual possession no title can be completely good.”
[1 ]Perrot v. Austin, Cro. El. 222; Cover v. Stem, 67 Md. 449.
[2 ]After a time the chancellors gave relief by compelling life tenants to give bonds that the reversioners and remaindermen should have the chattels. Warman v. Seaman, Freem. C. C. 306, 307; Howard v. Duke of Norfolk, 2 Sw. 464; 1 Fonb. Eq. 213, n.; [Cole v. Moore, Moo. 806]. And now either in equity or at law the reversioners and remaindermen are amply protected. The learning on this point, together with a full citation of the authorities, may be found in Gray, Perpetuities, §§ 78-98.
[1 ]Co. Lit. 274 a, Butler’s note .
[2 ]Co. Lit. 9 b.
[3 ]Supra, 27, 38.
[4 ]A woman by marrying her bailee or debtor extinguished the bailment or debt. Y. B. 21 H. VII. 29-4.
[1 ]Burgess v. Wheate, 1 W. Bl. 123; Ames, Cas. on Trusts, 501, 511, n. 1. By St. 47 and 48 Vict. c. 71, § 4, equitable interests do now escheat. It has been urged by Mr. F. W. Hardman, with great ability, that a trust in land ought to have been held to pass to the sovereign after the analogy of bona vacantia. 4 L. Q. Rev. 330-336. And this view has met with favor in this country. Johnston v. Spicer, 107 N. Y. 185; Ames, Cas. on Trusts, 511, n. 1.
[2 ]The writer regrets to find himself in disaccord upon this point with the opinion expressed incidentally by Professor Langdell, in his Summary of Equity Pleading (2 ed.), § 122.
[1 ]Bract. 52 a.
[2 ]2 Bl. Com. 196; see also 3 Bl. Com. 196; 1 Hayes, Conveyancing (5 ed.), 270; Stokes v. Berry, 2 Salk. 421, per Lord Holt. Butler’s note in Co. Lit. 239 a is as follows: “But if A. permits the possession to be withheld from him [by B.] beyond a certain period of time, without claiming it . . . B.’s title in the eye of the law is strengthened, and A. can no longer recover by a possessory action, and his only remedy then is by an action on the right . . . so that if he fails to bring his writ of right within the time limited for the bringing of such writs, he is remediless, and the title of the dispossessor is complete.”
[3 ]Taylor v. Horde, 1 Burr. 60, 119. [See Leffingwell v. Warren, 2 Black, 599, 605, per Swayne J.; Davis v. Mills, 194 U. S. 451, 456-7 per Holmes J.; Moore v. Luce, 29 Pa. 260, 262, per Lewis C. J.]
[4 ]Cholmondeley v. Clinton, 2 Jac. & W. 1, 156.
[1 ][“The idea that the title to property can survive the loss of every remedy known to the law for reducing it to possession and enjoyment would seem to have but small support in logic or reason.” Per O’Brien J. in Baker v. Oakwood, 123 N. Y. 16, 26.] The notion that a debt survives the extinction of all remedies for its enforcement is peculiar to English and American law, and even in those systems cannot fairly be deduced from the authorities commonly cited in its support. It is not because the debt continues, that a new promise to pay a debt barred by the statute is binding; but because the extinguishment of the creditor’s right is not equivalent to performance by the debtor. The moral duty to pay for the quid pro quo remains, and is sufficient to support the new promise. It is because this moral duty remains that the debtor, though discharged from all actions, cannot, without payment, recover any security that the creditor may hold. Again, it has been urged that the statute affects the remedy, but not the right, because the lapse of the statutory time in the jurisdiction of the debtor is no bar to an action in another jurisdiction. But this rule admits of another explanation. A debt being transitory, a creditor has an option, from the moment of its creation, to sue the debtor wherever he can find him. The expiration of the period of limitation in one jurisdiction, before he exercises his option, has no effect upon his right to sue elsewhere. But it extinguishes his right to sue in the jurisdiction where the statute has run, and a subsequent repeal of the statute will not revive it. Cooley, Const. Lim. 365. The case of Campbell v. Holt, 115 U. S. 620, contra, stands almost alone.
[2 ][This statement is too sweeping. A conveyance by A of Blackacre, wholly surrounded by other land of A, would give the grantor by implication a way of necessity across the surrounding land. But a disseisor of Blackacre acquires no way of necessity. Wilkes v. Greenway, 6 T. L. R. 449; McLaren v. Strachan, 23 Ont. L. R. 120, n.]
[3 ]Sanders v. Sanders, 19 Ch. Div. 373; Hobbs v. Wade, 36 Ch. D. 553; Jack v. Walsh, 4 Ir. L. R. 254; Doe v. Henderson, 3 Up. Can. Q. B. 486; McIntyre v. Canada Co., 18 Grant, Ch. 367; Bird v. Lisbros, 9 Cal. 1, 5 (semble); School District v. Benson, 31 Me. 381; Austin v. Bailey, 37 Vt. 219; Hodges v. Eddy, 41 Vt. 485; [Kibble v. Fairthorne  1 Ch. 219; Jones v. Williams, 108 Fla. 282; Parham v. Dedman, 66 Ark. 26; Shirley v. Whitlow, 80 Ark. 444; Hudson v. Stilwell, 80 Ark. 575; Brown v. Cockerell, 33 Ala. 38; Todd v. Kauffman, 19 Dist. Col. 304; Ill. Co. v. Wakefield, 173 Ill. 565; Riggs v. Riley, 113 Ind. 208; Bunce v. Bidwell, 43 Mich. 542; Sage v. Rudnick, 67 Minn. 362; Allen v. Mansfield, 82 Mo. 688; Sailor v. Hertzogg, 2 Barr, 182, 184; Bradford v. Guthrie, 4 Brewst. (Pa.) 351, 361; Bruce v. Washington, 80 Tex. 368; Hughes v. Graves, 39 Vt. 359, 365; McDonald v. McIntosh, 8 Up. Can. Q. B. 388].
[1 ]Scott v. Nixon, 3 Dr. & War. 388, 405; Sands v. Thompson, 22 Ch. D. 614; Games v. Bonnor, 54 L. J. Ch. 517; [Cox v. Cox, 7 Dist. Col. 1; Crowell v. Druley, 19 Ill. Ap. 509; Tewksbury v. Howard, 138 Ind. 103; Foreman v. Wolf (Md. 1894), 29 Att. R. 837; Trustees v. Hilken, 84 Md. 170; Erdman v. Corse, 87 Md. 506; Regents v. Calvary Church, 104 Md. 635; Dickerson v. Kirk, 105 Md. 638; Ballou v. Sherwood, 32 Neb. 667; Barnard v. Brown, 112 Mich. 452; Seymour v. DeLancey, Hopk. 436; Murray v. Harway, 56 N. Y. 337, 344; Shriver v. Shriver, 86 N. Y. 575; Ottinger v. Strasburger, 33 Hun. 466 affd. 102 N. Y. 692; O’Connor v. Huggins, 113 N. Y. 511; Pell v. Pell, 65 N. Y. Ap. Div. 388; Pratt v. Eby, 67 Pa. 396; Shober v. Dutton, 6 Phila. 185].
[2 ]Campbell v. Holt, 115 U. S. 620, 622 (semble); Trim v. McPherson, 7 Cold. 15; Grigsby v. Peak, 57 Tex. 142; Sprecker v. Wakely, 11 Wis. 432; Hill v. Kricke, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245; [Hall v. Webb, 21 W. Va. 320; McEldowney v. Webb. 44 W. Va. 711].
[3 ]Brassington v. Llewellyn, 27 L. J. Ex. 297; Bryan v. Cowdal, 21 W. R. 693; Rains v. Buxton, 14 Ch. D. 537; Groome v. Blake, 8 Ir. C. L. 3 Ont. R. 26; Holtzapple v. Phillibaum, 4 Wash. 356; Barclay v. Smith, 66 Ala. 230 (semble); Jacks v. Chaffin, 34 Ark. 534; Clarke v. Gilbert, 39 Conn. 94; Doe v. Lancaster, 5 Ga. 39; McDuffee v. Sinnott, 119 Ill. 449; Brown v. Anderson, 90 Ind. 93; Chiles v. Jones, 4 Dana, 479; Armstrong v. Risteau, 5 Md. 256; Littlefield v. Boston, 146 Mass. 268; Jones v. Brandon, 59 Miss. 585; Biddle v. Mellon, 13 Mo. 335; Jackson v. Oltz, 8 Wend. 440; Pace v. Staton, 4 Ired 32; Pederick v. Searle, 5 S. & R. 236; Abel v. Hutto, 8 Rich. 42; [Stokes v. Berry, 2 Salk. 421; Midland Co. v. Wright , 1 Ch. 735 (injunction against disseisee); Hackett v. Marmet Co., 52 Fed. 269; So. Dist. v. Blakeslee, 13 Conn. 227; Montgomery v. Robinson, 4 Del. Ch. 490 (injunction against disseisee); Paulin v. Hale, 40 Ill. 274; McDuffie v. Sinnott, 119 Ill. 449; Faloon v. Simshauser, 130 Ill. 649; Donahue v. Ill. Co. 165 Ill. 640; Bradley v. Lightcap, 202 Ill. 154; Axmear v. Richards, 112 Iowa 657 (injunction against disseisee); Roberts v. Sanders, 3 A. K. Marsh. 25; Doe v. Fletcher, 37 Md. 480; Waltemeyer v. Baughman, 63 Md. 200; Shock v. Falls City, 31 Neb. 599 (injunction against disseisee); City v. White (Neb. 1897); 70 N. W. R. 50; Rice v. Kelly (Neb. 1908) 115 N. W. R. 625; Davock v. Nealon, 58 N. J. 21; Spottiswoode v. Morris Co., 61 N. J. 322, 63 N. J. 667; Jackson v. Dieffendorf, 3 Johns. 269; Barnes v. Light, 116 N. Y. 34; Eldridge v. Kenning, 35 N. Y. St. Rep. 190 (injunction against disseisee); Schall v. Williams Co., 35 Pa. 191, 204; MacGregor v. Thompson, 7 Tex. Civ. Ap. 32].
[1 ]Low v. Morrison, 14 Grant, Ch. 192; Pendleton v. Alexander, 8 Cranch, 462; Arrington v. Liscom, 34 Cal. 365; Tracy v. Newton, 57 Iowa, 210; Rayner v. Lee, 20 Mich. 384; Stettnische v. Lamb, 18 Neb. 619; Watson v. Jeffrey, 39 N. J. Eq. 62; Parker v. Metzger, 12 Oreg. 407; [Sharon v. Tucker, 144 U. S. 392; Marston v. Rowe, 39 Ala. 722; Van Etten v. Daugherty, 83 Ark. 534; Echols v. Hubbard, 90 Ala. 309; Norman v. Eureka Co., 98 Ala. 181; Torrent Co. v. Mobile, 101 Ala. 559; McCormack v. Silsby, 82 Cal. 72; Baker v. Clark, 128 Cal. 181; Roberson v. Downing Co., 120 Ga. 833; Bellefontaine Co. v. Niedringhaus, 181 Ill. 426; Wilson v. Campbell, 119 Ind. 286; Indep. Dist. v. Fagen, 94 Iowa, 676; Severson v. Gremm, 124 Iowa, 729; Jenkins v. Dewey, 49 Kan. 49; Farmer v. Farmer, 19 Ky. L. Rep. 243; Asher Co. v. Clemmons, 23 Ky. L. Rep. 771; Gardner v. Terry, 99 Mo. 523; McKee v. Gardner, 131 Mo. 599 (semble); Peterson v. Townsend (Neb. 1890) 46 N. W. R. 526; Nash v. Lead Co., 15 N. Dak 566; Moody v. Holcomb, 26 Tex. 714; Bellingham v. Dibble, 4 Wash. 764; Pitman v. Hill, 117 Wis. 318; Clithero v. Fenner, 122 Wis. 356].
[2 ]Nelson v. Brodhack, 44 Mo. 596; Fulkerson v. Mitchell, 82 Mo. 13; Hill v. Bailey, 8 Mo. Ap. 85; Staley v. Housel, 35 Neb. 160; Murray v. Romine, 60 Neb. 94; Link v. Campbell, (Neb. 1905) 104 N. W. R. 939; Furman v. Sprague, 82 N. Ca. 366; Cheetham v. Young, 113 N. Ca. 161. But see Ten Eyck v. Witbeck, 55 N. Y. Ap. Div. 165; Udell v. Stearns, 125 N. Y. Ap. Div. 196.
[3 ]Ex parte Drake, 5 Ch. Div. 866, 868; Chapin v. Freeland, 142 Mass. 383; cases cited infra, n. 4. [“In order to make the title perfect, there must have been something in the nature of an adverse possession for more than six years; then, indeed, the party would have a right to the chattel,” per Pollock C. B. in Plant v. Cockerill, 5 H. & N., 430, 439-440. See also Davis v. Mills, 194 U. S. 451, 457, per Holmes, J.]
[1 ]Morris v. Lyon, 84 Va. 331.
[2 ]Campbell v. Holt, 115 U. S. 623 (semble); Jones v. Jones, 18 Ala. 245, 253 (semble); Davis v. Minor, 2 Miss. 183, 189-90 (semble); Power v. Telford, 60 Miss. 195 (semble); Moore v. State, 43 N. J. 203, 206 (semble); Yancy v. Yancy, 5 Heisk, 353; Brown v. Parker, 28 Wis. 21, 28 (semble).
[3 ]Brent v. Chapman, 5 Cranch, 358; Shelby v. Guy, 11 Wheat, 361 (semble); Howell v. Hair, 15 Ala. 194; Sadler v. Sadler, 16 Ark. 628; Wynn v. Lee, 5 Ga. 217 (semble); Robbins v. Sackett, 23 Kas. 301; Stanley v. Earl, 5 Litt. 281; Smart v. Baugh, 3 J. J. Marsh, 363 (semble); Clarke v. Slaughter, 34 Miss. 65; Chapin v. Freeland, 142 Mass. 383 (Field, J., diss.); Baker v. Chase, 55 N. H. 61, 63 (semble); Powell v. Powell, 1 Dev. & B. Eq. 379; Call v. Ellis. 10 Ired, 250; Cockfield v. Hudson, 1 Brev. 311; Gregg v. Bigham, 1 Hill (S. Ca.), 299; Simon v. Fox, 12 Rich. 392; McGowan v. Reid, 27 S. Ca. 262, 267 (semble); Kegler v. Miles, Mart. & Y. 426; Partee v. Badget, 4 Yerg. 174; Wheaton v. Weld, 9 Humph. 773; Winburn v. Cochran, 9 Tex. 123; Connor v. Hawkins, 71 Tex. 582; Preston v. Briggs, 16 Vt. 124, 130; Newby v. Blakey, 3 Hen. & M. 57; [Hicks v. Fluitt, 21 Ark. 463; Currier v. Studley, 159 Mass. 17; Pate v. Hazell, 107 N. Ca. 189 (semble); Ingram v. Foster, 4 McC. 198; Waters v. Barton, 1 Cold. 450; Bowyer v. Robertson, (Tex. Civ. Ap. 1895) 29 S. W. R. 916].
[4 ]Altoona Co. v. R. R. Co. (Pa. 1902) 52 Atl. R. 6.
[5 ]Shelby v. Guy, 11 Wheat. 361; Goodman v. Munks, 8 Port. 84, 94-5; Howell v. Hair, 15 Ala. 194 (semble); Newcombe v. Leavitt, 22 Ala. 631; Wynn v. Lee, 5 Ga. 217; Broh v. Jenkins, 9 Mart. 526 (semble); Davis v. Minor, 2 Miss. 183 (semble); Fears v. Sykes, 35 Miss. 633; Moore v. State, 43 N. J. 203, 205, 208 (semble); Alexander v. Burnet, 5 Rich. 189 (semble); Sprecker v. Wakeley, 11 Wis. 432, 440 (semble); [Cargile v. Harrison, 9 B. Mon. 518, 521 (semble); Waters v. Barton, 1 Cold 450].
[6 ]Garth v. Barksdale, 5 Munf. 101.
[1 ]Campbell v. Holt, 115 U. S. 623 (semble); Smart v. Baugh, 3 J. J. Marsh. 363; Smart v. Johnson, 3 J. J. Marsh. 373; Duckett v. Crider, 11 B. Mon. 188; Elam v. Bass, 4 Munf. 301; [Lay v. Lawson, 23 Ala. 377; Traun v. Keiffer, 31 Ala. 136].
[2 ]Ancestor and heir. Doe v. Lawley, 13 Q. B. 954; Clarke v. Clarke, Ir. R. 2 C. L. 395; Currier v. Gale, 9 All. 522; Duren v. Kee, 26 S. Ca. 224; [Doe v. Fletcher, 37 Md. 430; Wickes v. Wickes, 98 Md. 307; Alexander v. Gibbon, 118 N. Ca. 796; Epperson v. Stansill, 64 S. Ca. 485; Bardin v. Commercial Co., (S. Ca. 1909) 64 S. E. R. 165; Corder v. Dolin, 4 Baxt. 238].
[1 ]Bohannon v. Chapman, 17 Ala. 696; Newcombe v. Leavitt, 22 Ala. 631; Shute v. Wade, 5 Yerg. 1, 12 (semble); Norment v. Smith, 1 Humph. 46, 48 (semble); [Hicks v. Fluitt, 21 Ark. 463; Dragoo v. Cooper, 9 Bush, 629; Thornburg v. Bowen, 37 W. Va. 538] (but see Wells v. Ragland, 1 Swan, 501; Hobbs v. Ballard, 5 Sneed, 395), (Accord
[1 ]Doe v. Carter, 9 Q. B. 863; [Willis v. Howe, , 2 Ch. 545, 553;] Kipp v. Synod, 33 Up. Can. Q. B. 220; Fanning v. Willcox, 3 Day, 258; Smith v. Chapin, 31 Conn. 530 (semble); Shannon v. Kinny, 1 A. K. Marsh. 3; Hord v. Walton, 2 A. K. Marsh. 620; [Wishart v. McKnight, 178 Mass. 356 (explaining the misunderstood case of Sawyer v. Kendall, cited in the next note)]; Fitzrandolph v. Norman, 2 Tayl. 131; Candler v. Lunsford, 4 Dev. & B. 407; Davis v. McArthur, 78 N. C. 357; Cowles v. Hall, 90 N. C. 330. See, also, 1 Dart, V. & P. (6 ed.) 464-6; Pollock and Wright, Possession, 23.
[2 ]San Francisco v. Fulde, 37 Cal. 349; Doe v. Brown, 4 Ind. 143 (semble); Sawyer v. Kendall, 10 Cush. 241; Witt v. St. Paul Co., 38 Minn. 122 (semble); Locke v. Whitney, 63 N. H. 597 (semble); Jackson v. Leonard, 9 Cow. 653; Moore v. Collishaw, 10 Barr, 224; Shrack v. Zubler, 34 Pa. 38; Erck v. Church, 87 Tenn. 575; Graeven v. Dieves, 68 Wis. 317 (semble). See, also, Riopelle v. Hilman, 23 Mich. 33.
[1 ]Brandt v. Ogden, 1 Johns. 156; Malloy v. Bruden, 86 N. C. 251; Taylor v. Burnside, 1 Grat. 165. See, also, Brown v. Hanauer, 48 Ark. 277.
[2 ]Agency Co. v. Short, 13 App. Cas. 793; [Solling v. Broughton,  A. C. 556, 561; Louisville Co. v. Philyan, 88 Ala. 264, 268; Downing v. Magee, 153 Ill. 330, 335; Wishart v. McKnight, 178 Mass. 356, 360; Cunningham v. Patton, 6 Barr, 355, 358, 359; Jarrett v. Stevens, 36 W. Va. 445, 450].
[3 ]It is a significant fact that in most of these cases Brandt v. Ogden, 1 Johns. 156, a case where the adverse possession was not continuous, was cited as a decision in point.
[1 ]In Norment v. Smith, 1 Humph. 46; Moffatt v. Buchanan, 11 Humph. 369; Wells v. Ragland, 1 Swan. 501; Hobbs v. Ballard, 5 Sneed, 395, there was in fact a privity; but the court thought otherwise, and accordingly disallowed tacking, as the same court denies the right to tack in the case of land if there is no privity.
[2 ]Ex parte Drake, 5 Ch. Div. 866; Re Scarth, 10 Ch. 234; Eberle Co. v. Jones, 18 Q. B. Div. 459; Sharpe v. Gray, 5 B. Mon. 4; Norrill v. Corley, 2 Rich. Eq. 288, n. (a).
[3 ]Lacon v. Barnard, Cro. Car. 35; Put v. Rawsterne, T. Ray. 472, 2 Show. 211 (semble); Hitchin v. Campbell, 2 W. Bl. 827; Lovejoy v. Wallace, 3 Wall. 1, 16 (semble); Barb v. Fish, 8 Black, 481; Rembert v. Hally, 10 Humph. 513. Serjeant Manning’s Note, 6 M. & G. 160, n. a; Daniel v. Holland, 4 J. J. Marsh, 18, 26; Woolley v. Carter, 2 Halst. 85; Outcalt v. Durling, 1 Dutch. 443; Dietz v. Field, (N. Y. Ap. Div. 1896) 41 N. Y. S. 1087 (but see Union Co. v. Schiff, 78 Fed. 216, 86 Fed. 1023). Similarly, if the converted chattel has been sold, the owner, by recovering a judgment in assumpsit, extinguishes all his other remedies against the converter. Smith v. Baker, L. R. 8 C. P. 350 (semble); Bradley v. Brigham, 149 Mass. 141, 144-5; Boots v. Ferguson, 46 Hun, 129; Wright v. Ritterman, 4 Rob. 704.
[4 ]The chattel may therefore be taken on execution by a creditor of the converter. Rogers v. Moore, Rice, 60; Norrill v. Corley, 2 Rich. Eq. 288, n. (a); Foreman v. Neilson, 2 Rich. Eq. 287. See, also, Morris v. Beckley, 2 Mill, C. R. 227. [But compare Bush v. Bush, 1 Strob. Eq. 377.] A purchaser from a converter after judgment should take a perfect title. Goff v. Craven, 34 Hun, 150, contra, would seem to be a hasty decision. [If, after a judgment against a converter, but before its satisfaction, the dispossessed owner retakes the chattel, the converter, upon satisfying the judgment may maintain trover against the former owner. Smith v. Smith, 51 N. H. 571. This decision as well as that in Hepburn v. Sewell, 5 Har. & J. 211 was based upon the doctrine of relation, by which the converter’s title, after satisfaction of the judgment, was made to relate back to the date of his conversion. The decision seems to be correct, but the doctrine of relation seems far fetched and has been deservedly criticised by Holmes J. in Miller v. Hyde, 161 Mass. 472, 481.]
[1 ]Matthews v. Menedger, 2 McL. 145; Spivey v. Morris, 18 Ala. 254; Dow v. King, 52 Ark. 282; Atwater v. Tupper, 45 Conn. 144; Sharp v. Gray, 5 B. Mon. 4; Osterhout v. Roberts, 8 Cow. 43; [Ledbetter v. Embree (Ind. 1895) 40 N. E. R. 928]. But see contra, Marsh v. Pier, 4 Rawle, 273, 286 (semble); Fox v. Northern Liberties, 3 W. & S. 103, 106 (semble); Wilburn v. Bogan, 1 Speer, 179.
[2 ]Morris v. Robinson, 2 B. & C. 196.
[3 ]Cooper v. Shepherd, 3 C. B. 266.
[1 ]Lovejoy v. Murray, 3 Wall. 1; Elliot v. Porter, 5 Dana, 299; Elliott v. Hayden, 104 Mass. 180; Floyd v. Brown, 1 Rawle, 121 (semble); Fox v. Northern Liberties, 3 W. & S. 103 (semble); Sanderson v. Caldwell, 2 Aik. 195; [Sessions v. Johnson, 95 U. S. 347, 349; Birdsell v. Shaliol, 112 U. S. 485, 489; Knight v. Nelson, 117 Mass. 488; Miller v. Hyde, 161 Mass. 472; Tolman v. Waite, 119 Mich. 341; Hyde v. Noble, 13 N. H. 494; Osterhout v. Roberts, 8 Cow. 43; Russell v. McCall, 141 N. Y. 437; Turner v. Brook, 6 Heisk. 50].
[2 ]The writer has discovered a further illustration, which should be added to those given in a preceding number of this Review, in support of the principle that a wrongful possessor acquires title whenever the injured owner’s right of action is barred. If a disseisee levied a fine, nothing passed to the conusee, but the fine barred the conusor’s right. The disseisor, therefore, gained an absolute title. 2 Prest. Abs. 206.
[1 ]The ancient appeals of battery, mayhem, imprisonment, robbery, and larceny were actions for vengeance, and from their strictly personal character naturally died with the party injured. Trespass for a personal injury, and de bonis asportatis, and quare clausum fregit, being for the recovery of damages only, also came within the maxim actio personalis moritur cum persona. By St. 4 Edw. III., c. 7, an executor was allowed to recover damages for goods taken from the testator by a trespass. And such has been the elasticity of this statute that under it actions for a conversion, for a false return, for infringement of a trademark, for slander of title, for deceit,—in short, actions for any tort whose immediate effect is an injury to or a diminution of another’s property, have been held to survive. But not actions for torts which directly affect the person or reputation, and only indirectly cause a loss of property. In the United States the argument that a wrong-doer ought not to profit by the death of his victim, has led to legislation greatly increasing the actions that survive.
[2 ]Attornment was necessary before the conusee could distrain or bring an action against the tenant for services or rent. But the tenant could be compelled to attorn by the writs Quid juris clamat, and Per quæ servitia. 2 Nich. Britt. 46-48.
[3 ]Y. B. 19 H. VI. 24-47; Co. Lit. 322 a.
[1 ]1 Nich. Britt. 269-270; Maund’s Case, 7 Rep. 28 b; Co. Lit. 144, Butler’s note ; Scott v. Lunt, 7 Pet. 596.
[2 ](1233) 2 Bract. Note Book, pl. 804; Y. B. 21 Edw. I. 137; Old Nat. Br., Rast. L. Tr. 67; Fitz. Nat. Br. 145.
[3 ](1233) 2 Bract. Note Book, pl. 804; Bract. f. 37 b, 381 b, 390, 391; 1 Nich. Britt. 255-256; (1285) Fitz. Ab. Garr. 93. These citations from Bracton are hardly reconcilable with the interpretation which Mr. Justice Holmes has given in “The Common Law” (pp. 373-4) of an obscure and possibly corrupt passage in Bracton, f. 17 b. In view of Professor Brunner’s investigations (Zeitschrift f. d. gesammte Handelsrecht, Vol. 22, p. 59, and Vol. 23, p. 225), the distinguished judge would doubtless be among the first to correct his remark on p. 374: “By mentioning assigns the first grantor did not offer a covenant to any person who would thereafter purchase the land.”
[4 ]Lampet’s Case, 10 Rep. 48 a.
[5 ]“But in regard to choses in action, as the same doctrine has been adopted in every other state of Europe, it may be doubted whether the reason, which has been the foundation of the rule everywhere else, was not also the reason for its introduction in this country; namely, that the credit being a personal right of the creditor, the debtor being obliged toward that person could not by a transfer of the credit, which was not an act of his, become obliged towards another.” 2 Spence, Eq. Jur. 850. See also Pollock, Contracts (5 ed.), 206; Holmes, Common Law, 340-341; Maitland, 2 L. Q. Rev. 495.
[6 ]Supra, 315.
[1 ]In general, whatever would survive to an executor passes to the assignee of a bankrupt.
[1 ]The rationale of this doctrine is as follows: The so-called assignee of a claim is in reality an attorney with a power to sue for his own use. Being thus dominus of the chose in action, he enters into a bilateral contract with the obligor, promising the latter never to enforce his claim in return for the obligor’s promise to pay him what is due thereon. This promise of perpetual forbearance operates as an equitable release of the old claim, and also as a consideration for the obligor’s new promise.
[2 ]In 1 Lilly’s Ab. 125, it is said: “A statute merchant or staple, or bond, etc., can not be assigned over to another so as to vest an interest whereby the assignee may sue in his own name, but they are every day transferred by letter of attorney, etc. Mich. 22 Car. B. R.” See also Deering v. Carrington, 1 Lilly, Ab. 124; Shep. Touchst. (6 ed.) 240; 2 Blackst. Com. 442; Leake, Cont. (2 ed.) 1183; Gerard v. Laws, L. R. 2 C. P. 308, 309, per Willes, J. These letters of attorney for the attorney’s own use, whether borrowed from the similar procuratio in rem suam of the Roman law or not, are of great antiquity. (1309) Riley, Memorials of London, 68. “Know ye that I do assign and attorn in my stead E., my dear partner, to demand and receive the same rent of forty shillings with the arrears and by distress the same to levy in my name . . . and all things to do as to the same matter for her own profit as well as ever I myself could have done in my own proper person.” See also West, Symbol. § 521.
[3 ]Y. B. 9 H. VI. 64-17; Y. B. 34 H. VI. 30-15; Y. B. 37 H. VI. 13-3; Y. B. 15 H. VII. 2-3; Penson v. Hickbed (1588), 4 Leon. 99, Cro. Eliz. 170; South v. March (1590), 3 Leon. 234; Harvey v. Bateman (1600), Noy, 52; Barrow v. Gray (1600), Cro. Eliz. 551; Loder v. Chesleyn (1665), 1 Sid. 212; Note (1667-1772), Freem. C. C. 145. See also Pollock, Cont. (5 ed.) 701; 1 Harv. L. Rev. 6, n. 2.
[1 ]Formerly an express power of attorney was indispensable (Mallory v. Lane, Cro. Jac. 342), the notion of an implied power being as much beyond the conception of lawyers three centuries ago as the analogous idea of an implied promise. 2 Harv. L. Rev. 52, 58. To-day, of course, the power will be implied from circumstantial evidence. [Formerly a deed could not be delivered in escrow without express words to that effect. Bowker v. Burdekin, 11 M. & W. 128, 147.]
[2 ]Accordingly an assignment in New York, where, by statute, actions must be brought by the real party in interest, did not enable the assignee to sue in Massachusetts, when the old rule that an assignee must sue in the assignor’s name prevailed. Leach v. Greene, 116 Mass. 534; Glenn v. Busey, 5 Mack. 733. If the statute truly effected a change of title, the assignee, like the indorsee of a bill, could sue in his own name anywhere.
[3 ]The assignee of an equitable chose in action, e. g., a trust, of course sues in his own name without the aid of a statute. But here, too, there is no novation. If the Hibernicism may be pardoned, the assignee of a trust, like an attorney, stands in the place of his assignor, but does not displace him. A release from the assignor to the innocent trustee frees the latter’s legal title from the equitable incumbrance. Newman v. Newman, 28 Ch. D. 674. So, if a cestui que trust should assign his trust first to A. and then to B., and B. should, in good faith, obtain a conveyance of the legal title from the trustee, he could hold it against A. What is true of the equitable trust is equally true of the analogous legal bailment. By judicial legislation the purchaser from a bailor is allowed to proceed in his own name against the bailee. But a bailee who, for value and in ignorance of the bailor’s sale of his interest, receives a release from the latter, may keep the chattel. [If a bailee, in ignorance of a sale by the bailor, should deliver the goods to the bailor or to some person designated by the bailor, he could not be charged by the bailor’s vendee. He would simply have performed his contract according to its tenor. Saxeby v. Wynne, 3 Stark. Ev. (3d ed.) 1159; Glynn v. E. I. Co. 7 App. Cas. 591; Jones v. Hodgkins, 61 Me. 480; Woods v. McGee, 7 Oh. 127 (as explained in Newhall v. Langdon, 39 Oh. St. 87, 92; McGee v. French, 49 S. Ca. 452 (semble);] and if a bailor should sell his interest successively to A. and B., and B. should obtain possession from the bailee, A. could not recover the chattel from B. Upon principle and by the old precedents the bailor’s interest is no more transferable than that of a creditor. Y. B. 22 Ed. IV. 10-29; Wood v. Foster, 1 Leon. 42, 43, pl. 54; Marvyn v. Lyds, Dy. 90 b, pl. 6; [Rich v. Aldred 6 Mod. 216]; 2 Blackst. Com. 453. As late as 1844, that great master of the common law, Mr. Baron Parke, ruled that a purchaser from a pledgor could not maintain an action in his own name against the pledgee. The court in banc reversed this ruling. Franklin v. Neate, 13 M. & W. 481. [See also Goodman v. Boycott, 2 B. & S. 1; Bristol Bank v. Midland Co.  2 Q. B. 653.] The innovation has been followed in this country. Carpenter v. Hale, 8 Gray, 157; Hubbard v. Bliss, 12 All. 590; Meyers v. Briggs, 11 R. I. 180; [Jack v. Eagles, 2 All. (N. B.) 95].
[1 ](1134) 1 Rot. Cur. Reg. 42, cited by Brunner, 1 Zeitschrift für Vergleichende Rechtswissenschaft, 367. See also “A Boke of Presidents,” fol. 86, b: “Noveritis me P. loco meo posuisse T. meum verum et legitimum atturnatum ad prosequendum . . . vice et nomine meo pro omnibus illis terris . . . vocatis W. . . . quæ mihi . . . descendebant et quæ in presenti a me injuste detinentur. Necnon in dictas terras . . . vice et nomine meo ad intrandum ac plenam . . . possessionem et seisinam . . . capiendum . . . et super hujusmodi possessione sic capta et habita dictas terras . . . ad usum dicti t. custodiendum gubernandum occupandum et ministrandum.”
[1 ]Steeple v. Downing, 60 Ind. 478; Vail v. Lindsay, 67 Ind. 528; Wade v. Lindsey, 6 Met. 407; Cleaveland v. Flagg, 4 Cush. 76; Farnum v. Peterson, 111 Mass. 148; McMahan v. Bowe, 114 Mass. 140; Rawson v. Putnam, 128 Mass. 552, 553; Stockton v. Williams, 1 Doug. (Mich.) 546; Betsey v. Torrance, 34 Miss. 132; Hamilton v. Wright, 37 N. Y. 502; Wilson v. Nance, 11 Humph. 189, 191; Edwards v. Roys, 18 Vt. 473; University v. Joslyn, 21 Vt. 61; Edwards v. Parkhurst, 21 Vt. 472; Park v. Pratt, 38 Vt. 545; [Paton v. Robinson, (Conn. 1909) 71 Atl. R. 730; Brinley v. Whiting, 5 Pick. 348; Livingston v. Proseus, 2 Hill, 526; Dever v. Hagerty, 169 N. Y. 481; Galbraith v. Payne, 12 N. Dak. 164; Ten Eyck v. Witbeck, 55 N. Y. Ap. Div. 165, affirmed 170 N. Y. 564; Saranac Co. v. Roberts, 125 N. Y. Ap. Div. 333, 341; Hasbrouck v. Bunce, 62 N. Y. 475].
[2 ]Stogdel v. Fugate, 2 A. K. Marsh. 136; Holly v. Huggeford, 8 Pick. 73; Boynton v. Willard, 10 Pick. 166; Clark v. Wilson, 103 Mass. 219, 222; Jordan v. Gillen, 44 N. H. 424; North v. Turner, 9 S. & R. 244.
[3 ]Lazard v. Wheeler, 22 Cal. 139; Final v. Backus, 18 Mich. 218; Brady v. Whitney, 24 Mich. 154; Grant v. Smith, 26 Mich. 201; Smith v. Kennett, 18 Mo. 154; Doering v. Kenamore, 86 Mo. 588; McKee v. Judd, 12 N. Y. 622; Robinson v. Weeks, 6 How. Pr. 161; Butler v. N. Y. Co., 22 Barb. 110; McKeage v. Hanover Co., 81 N. Y. 38; Birdsall v. Davenport, 43 Hun, 552; [Lincoln Co. v. Allen, 82 Fed. 148; Howe v. Johnson, 117 Cal. 37; Lawrence v. Wilson, 64 N. Y. Ap. Div. 562].
[1 ]In addition to the early English authorities cited supra, pp. 34-35, see Scott v. McAlpine, 6 Up. Can. C. P. 302; Murphy v. Dunham, 38 Fed. Rep. 503, 506; Goodwyn v. Lloyd, 8 Port. 237; Brown v. Lipscomb, 9 Port. 472; Dunklin v. Williams, 5 Ala. 199; Huddleston v. Huey, 73 Ala. 215; Foy v. Cochran, 88 Ala. 353; McGoon v. Ankeny, 11 Ill. 558; O’Keefe v. Kellogg, 15 Ill. 347; Taylor v. Turner, 87 Ill. 296 (semble); Ericson v. Lyon, 26 Ill. Ap. 17; Stogdel v. Fugate, 2 A. K. Marsh. 136; Young v. Ferguson, 1 Litt. 298; Davis v. Herndon, 39 Miss. 484; Warren v. St. Louis Co., 74 Mo. 521; Doering v. Kenamore, 86 Mo. 588; Gardner v. Adams, 12 Wend. 297; Blount v. Mitchell, 1 Tayl. (N. C.) 130; Morgan v. Bradley, 3 Hawks, 159; Stedman v. Riddick, 4 Hawks, 29; Overton v. Williston, 31 Pa. 155.
[2 ]Brig Sarah Ann, 2 Sumn. 206, 211; Tome v. Dubois, 6 Wall. 548; Cartland v. Morrison, 32 Me. 190; Webber v. Davis, 44 Me. 147; Clark v. Wilson, 103 Mass. 219, 222-3 (semble); Dahill v. Booker, 140 Mass. 308, 311 (semble); Serat v. Utica Co., 102 N. Y. 681 (semble); Kimbro v. Hamilton, 2 Swan, 190.
[3 ]Brig Sarah Ann, 2 Sumn. 206, 211.
[1 ]See Overton v. Williston, 31 Pa. 155, 160.
[1 ]This Essay was originally published in the Law Quarterly Review, 1886, vol. II, pp. 481-496.
[2 ]A biographical note of this author is prefixed to Essay No. 1, in Volume I of this Collection.
[3 ]Co. Lit. 17 a, 153 a, 200 b.
[4 ]Law Quarterly Review, July, 1885. The Seisin of Chattels. I am indebted to Mr. M. M. Bigelow, Mr. H. W. Elphinstone, and a learned critic in the Solicitors’ Journal for several new examples, both very early and very late, of the use of the word seisin in connection with chattels. (See Litt. sec. 177, also Paule v. Moodie, 2 Roll. Rep. 131.) But as to the usage of the thirteenth century, I have now, after having copied more than a thousand cases, no doubt whatever: the words possideo, possessio are extremely rare, but one can be seised of anything, even of a wife or of a husband. I have known a woman assert, in proof of her marriage, that she remained seised of her husband’s body after his death.
[1 ]Bracton, f. 113, from Dig. 41. 2 (de acquir. vel amit. poss.) 12. § 1.
[2 ]Co. Lit. 369 a, 17 a, b.
[1 ]8 & 9 Vict. c. 106, sec. 6.
[2 ]Goodright v. Forrester, 1 Taunt. 613.
[3 ]Co. Lit. 213 b; Lampet’s Case. 10 Rep. 48 a.
[1 ]Stubbs, Const. Hist. § 295.
[2 ]Co. Lit. 293 a.
[3 ]Bracton, f. 376.
[4 ]1 Vic. cap. 26, sec. 3.
[5 ]32 Hen. VIII, cap. 1.
[6 ]34 Hen. VIII, cap. 5.
[1 ]The cases are collected in Jarman on Wills, 4th ed., vol. 1, pp. 49, 50. Perhaps they leave open some questions which will never now be answered. But the main doctrine seems beyond dispute. See Co. 3 Rep. 35 a.
[2 ]Y. B. 39 Hen. VI. f. 18 (Mich. pl. 23).
[3 ]3 & 4 Will. 4. c. 106; Co. Lit. 11 b.
[1 ]8 Ass. f. 17, pl. 27.
[2 ]3 & 4 Will. 4. cap. 105.
[3 ]Co. Lit. 31 a.
[4 ]Co. Lit. 15 b, 29 a, 31 a, 181 a.
[5 ]It may be more to the point that Mr. Challis (Real Property, p. 182) has written to the same effect. See Leach v. Jay, 9 C. D. 42.
[1 ]Winchester’s Case, 3 Rep. 2 b.
[2 ]It may be convenient if I here collect in chronological order the main authorities as to escheat and forfeiture of rights of entry and rights of action. Reg. Brev. f. 164 (F. N. B. f. 144); 27 Ass. pl. 32. f. 136, 137; Fitz. Abr. Entre Congeable, pl. 38 (Hil. 2. Ric. 2); 2 Hen. 4. f. 8. (Mich. pl. 37); 7 Hen. 4. f. 17 (Trin. pl. 10); 32 Hen. 6. f. 27 (Hil. pl. 16), comp. Litt. sec. 390; 37 Hen. 6. f. 1 (Mich. pl. 1); 15 Edw. 4. f. 14 (Mich. pl. 17), per Brian; 6 Hen. 7. f. 9 (Mich. pl. 4); 10 Hen. 7. f. 27 (Trin. pl. 13); 13 Hen. 7. f. 7 (Mich. pl. 3); Bro. Abr. Eschete, pl. 18; Co. Lit. 240 a, 268 a, b; 3 Inst. 19; 3 Rep. 2, 3, 35 a; 8 Rep. 42 b; Hale, P. C. Part I, ch. 23; Hawk, P. C. Bk. 2, ch. 49, sec. 5: Burgess v. Wheate, Eden, 177, 243. It will be noticed that none of these authorities, except perhaps the writ in the Register, is older than the middle of the fourteenth century.
[3 ]3 Rep. 35 a; Co. Lit. 76 b.
[1 ]Fitz. Abr. Garde, pl. 10.
[2 ]See Asher v. Whitlock, L. R. 1 Q. B. 1. Holmes, Common Law, p. 244.
[3 ]I refer of course to Taylor v. Horde, 1 Burr. 60, a case which profoundly dissatisfied the great conveyancers of the last century, and which has lately put Mr. Challis to his Greek (Real Property, p. 329). Butler’s note on this case (Co. Lit. 330 b) seems to me the best modern account of seisin that we have.
[1 ]Holmes, Common Law, p. 241.
[2 ]Coke (Co. Lit. 245 b) says that ‘by the ancient law’ the entry of the disseisee was tolled not only by a descent cast, but by the disseisor’s feoffment followed by non-claim for year and day. There was very similar law both in France and in Germany, as may be seen at large in Laband, Die Vermögensrechtlichen Klagen, and Heusler, Die Gewere. I have never been able to find definite authority for Coke’s statement, but it looks to me very probable. It deprives the descent cast of its isolated singularity, and fits in with the learning of fines.
[1 ]Capiendo inde expleta; this phrase conveys a sense of manifest and successful achievement. When the possessor takes a crop from his land, he achieves, exploits his seisin; his seisin is now explicit. See Skeat, s. v. explicit, exploit. There is a great mass of information in Ducange, s. v. expletum. Coke, 6 Rep. 58, gives almost the true meaning, though his etymology is at fault; he derives the word from expleo (instead of explico) and says that the grantee of a rent hath not a perfect and explete or complete estate until he hath reaped the esplees, scilicet the profit and commodity thereof.
[2 ]4 & 5 Ann. c. 16. sec. 9.
[1 ]Bract. f. 81 b, 82. The writs for compelling attornment are the Quid juris clamat and the Per quae servitia.
[2 ]Co. Lit. 309 a; Lit. sec. 569.
[3 ]Lit. sec. 567.
[4 ]Co. Lit. 48 b; Bettisworth’s Case, 2 Rep. 31, 32.
[5 ]Co. Lit. 311 b.
[6 ]Brediman’s Case, 6 Rep. 56 b.
[1 ]Orme’s Case, L. R., 8 C. P. 281; Hadfield’s Case, ibid. 306. The last Reform Act (48 Vict. c. 3, sec. 4) has, one regrets to say, made it improbable that we shall have in the future similar displays of antique learning.
[2 ]Benjamin, Sales, 2nd ed., p. 132.
[3 ]Farina v. Home, 16 M. & W. 119. I believe that it was Parke, B. who first introduced the term ‘attornment’ into the discussion of cases concerning the sale of goods; but in this I may be wrong.
[1 ]I have framed my Latin phrases on the model of Savigny’s possessio ad interdicta. Seisin, we may say, is ‘assize-possession.’
[2 ]Britton, vol. 2, p. 303.
[3 ]I am not sure that it was ever technically correct to say that the overlord is seised of the land; but in thirteenth century cases, he certainly has and holds the land, he has and holds it not in demesne, but in service. See Br. f. 432, 433. I have seen many cases to this effect; and I have seen nunquam aliquam seisinam habuit nec in dominico nec in servicio.
[1 ]Bracton, f. 52 b.
[2 ]Bracton, f. 54, 55, 246. See Nichols, Britton, vol. 2, p. 185, note f.
[3 ]Ld. Raym. 938, 953.
[1 ]Stat. Westm. the Second (13 Edw. I), c. 5. The law is clearly stated by Blackstone, vol. 3, p. 243.
[1 ]Pollock, Principles of Contract, 4th ed., Appendix, Note G.
[1 ]There is one rule of our present Common Law which, were it very old, would make much against what I have said, the rule, namely, that the ownership of movables can be transferred by mere agreement, by bargain and sale without delivery. I have not forgotten this, but it seemed impossible to discuss in a paper already too miscellaneous a question which has divided two masters of the Year Books. Serjeant Manning has maintained that the rule is quite modern. Lord Blackburn, on the other hand, has found it in the books of Edward the Fourth. He was not concerned, however, to trace it any further, and it seems to me that the law of an earlier time required a change of possession on the one side or the other, delivery or part-delivery of the goods, payment or part-payment of the price. Perhaps at some future time I may be allowed to state what I have been able to find about this matter. Since this article was in print examples (ad 1305) of pleadings referring to the seisin of chattels have been brought to my notice by Mr. G. H. Blakesley: see Registrum Palatinum Dunelmense (ed. Hardy), vol. 4, pp. 45, 49, 63, 73.
[1 ]This Essay forms part of a “Treatise on the Trial of Title to Land, including Ejectment, Trespass to Try Title, Writs of Entry, and Statutory Remedies for the Recovery of Real Property” (New York: Baker, Voorhis, & Co., 1886), 2d edition, being pp. 1-47 of Chapter I, with a few omissions.
[2 ]Member of the New York Bar. Harvard University, A. B. 1864, LL. B. 1866; editor of the American Law Review, 1873; lecturer on law, Lowell Institute, Boston, 1885.
[3 ]Member of the New York Bar. Union College (Albany Law School), LL. B. 1874; Secretary of Barnard College for Women (Columbia University); Secretary of the Legislative Committee of the New York Bar Association.
[1 ]See chap. II.
[2 ]See §§ 3, 5, 6.
[3 ]See § 45. Booth on Real Actions, p. 159.
[4 ]Doe d. Hodsden v. Staple, 2 T. R. 684, per Lord Kenyon. See Stearns on Real Actions, p. 149; Reeves’ Hist. Eng. Law (ed. 1880), vol. 4, p. 241. Mr. Reeves says: “The precision of the proceeding in real actions, where the matter in question was thoroughly canvassed in pleading, and reduced to a simple point before it was trusted to a jury, is thought to be ill changed for the present course, (by ejectment,) where the whole question is at once sent in the gross to trial upon the general issue, without any previous attempt to simplify or decide it with less circuity and expense.” Reeves’ Hist. Eng. Law, vol. 4, p. 241.
[1 ]Gilbert’s Hist. and Prac. Common Pleas, p. 107.
[2 ]See § 94.
[3 ]Hale’s Common Law (ed. 1794), p. 301.
[4 ]Hale’s Common Law, p. 301.
[5 ]Stearns on Real Actions (2d ed.), pp. 86-134; Booth on Real Actions (Am. ed., 1808), p. 2.
[1 ]See Treat v. McMahon, 2 Greenl. (Me.) 120.
[2 ]See Stearns on Real Actions (2d ed.), p. 181 .
[3 ]Ibid, p. 186 .
[4 ]Com. D., title Abridgment A, 2.
[5 ]Somes v. Skinner, 16 Mass. 348, 357.
[6 ]Reeves’ Hist. Eng. Law, vol. 4, p. 69.
[7 ]Aslin v. Parkin, 2 Burr. 665, 668.
[8 ]Calling in a grantor who had warranted the title to defend the action.
[9 ]This consisted in the issuance of a writ requiring the sheriff to cause the tenant to have view of the land in dispute, which the demandant was required to point out to the tenant, indicating the metes and bounds.
[1 ]This was a petition for help, as, for instance, calling in a reversioner or other interested party, to aid in the defense of the writ.
[2 ]See Pierce v. Jaquith, 48 N. H. 231.
[3 ]See Crandall v. Gallup, 12 Conn. 366, 371.
[4 ]Adams on Ejectment (4th Am. ed. 1854, by Waterman), p. 10, *9. We have, in writing this chapter, made use of Mr. Adams’ excellent work on Ejectment. This book is the highest authority as to the early practice and procedure in the remarkable action of which it treats, but its usefulness has been superseded in America by the radical changes effected by modern legislation in our system of remedial law, more especially by the abolition of the fictions. Cole on Ejectment (Sweet, London), appeared in 1857. The learned author observes in his preface, that “the Common Law Procedure Acts of 1852 and 1854, and the New Rules, have rendered all previous Treatises of Ejectment of little or no value” in England. Longfield on Ejectment, 2d ed. Dublin, 1846, treats of the remedy in the Superior Courts of Ireland. These books are of very little practical value in this country.
[1 ]3 Bla. Com. p. 184.
[1 ]See § 6.
[2 ]See § 19.
[3 ]It seems an anomalous condition of affairs that jealousies existing between the different courts and their respective practitioners should have exerted any influence in formulating remedies. Mr. Baron Gilbert observes that in 14 H. 7 “it began to be resolved that an habere facias possessionem would lie to recover the term itself. It seems that about this time long terms had their beginning; and that since lessees for years could not by law recover the land itself, they used, when molested, to go into equity against the lessors for a specific performance; and against strangers, for perpetual injunctions, to quiet their possessions. This, drawing the business in the courts of equity, induced the courts of law to resolve, that they should recover the land itself by an habere facias possessionem.” Gilbert on Ejec. pp. 3, 4. See § 18.
[1 ]See Bates v. Sparrell, 10 Mass. 323; 2 Bla. Com. p. 140.
[2 ]See Dorsey on Ejectment, p. 9.
[3 ]See Stearns on Real Actions (2nd ed.), p. 116; Dorsey on Ejectment, p. 9.
[4 ]Stearns on Real Actions, p. 116.
[5 ]Reeves’ Eng. Law (ed. 1880), vol. 4, p. 349.
[6 ]3 Bla. Com. p. 200.
[7 ]Ibid, p. 200; Reg. Brev. p. 227.
[8 ]Baron Gilbert, after observing that formerly estates for years were only “a precarious possession,” says of the tenants that “if they were ousted by strangers, they could only have recovered damages for the loss of their possessions; and if they were ousted by their lessors, they could only seek a remedy from their covenants.” Gilbert on Ejectment, by Runnington, p. 3.
[9 ]Reg. Brev. p. 227. “Provision was made,” says Bracton, “de consilio curiæ.” (Bracton, f. 220).
[1 ]Reg. Brev. p. 227; F. N. B. p. 197.
[2 ]Bracton, f. 220; Reeves’ Hist. Eng. Law (Am. ed. 1880), vol. 2, p. 137.
[3 ]Reeves’ Hist. Eng. Law (ed. 1880), vol. 3, p. 232.
[4 ]18 Edw. II, f. 599.
[5 ]Reeves’ Hist. Eng. Law (ed. 1880), vol. 2, p. 136; Bracton, f. 220.
[6 ]See Adams on Ej. (4th ed. 1854) p. 7, *4, where Mr. Reeves’ interpretation of Bracton is shown to be erroneous.
[7 ]See Stat. Abr. Title “Quare Ejecit.” “In quare ejecit plaintiff shall recover his term, and damages by him sustained by reason of the sale.” Reg. Brev. p. 227: “Sciendum est quod breve (sc. Quare Ejecit), . . . habet fieri quando A, dimisit B, decem acras terræ ad terminum decem annorum, & idē A, durante termino illo vendit eandem terram C, in feodo, occasione cujus venditionis durante adhuc termino prædicto, idem C, ipsum B, de prædicta terra ejecit. . . . Fuit hoc breve inventum per discretum virum Wilhelmum de Merton ut terminarius recuperet catalla sua versus feoffatum.” See, also, 18 Edw. II, f. 599; Hil. Term, 46 Edw. III, f. 4, pl. 12; Gilbert on Ejectment (2nd ed.), p. 123; also, Roscoe on Actions Relating to Real Property, p. : Quare ejecit, &c., only lies where the ejector claims title under the lessor, and not against a mere stranger, for, in the latter case, the remedy was by ejectione firmæ. F. N. B. II, p. 197; 19 Henry VI, p. 56, f. 19; 21 Edw. IV, pp. 10, 30, per Choke, J.: “Quare Ejecit, &c., lieth where one is in by title, ejectione firmæ, where one is in by wrong.” See Reeves’ Hist. Eng. Law (1880), vol. 3, p. 232, note (a).
[1 ]Gilbert on Ejectment, p. 2; Stearns on Real Actions (2nd ed.), p. 56 ; Runnington on Ejectment, p. 5.
[2 ]See § 12, note.
[3 ]“A certain Adam brings writ of trespass against R. of S., and K. of D., for that with force and arms he ejected him from a manor, which he holds for a term under the lease of one B.” 44 Edw. III, f. 22, pl. 26.
[4 ]See § 12.
[1 ]Reg. Brev. f. 227, 228.
[2 ]3 Bla. Com. p. 199.
[3 ]Mr. Reeves falls into the same error. “The second (sc. quare ejecit infra terminum) lay only against the alienee of the ejector.” Reeves’ Hist. Eng. Law (1880), vol. 4, p. 237. See Bel. p. 159.
[4 ]Reeves’ Hist. Eng. Law (ed. 1880), vol. 3, p. 233.
[1 ]Reeves’ Hist. Eng. Law (ed. 1880), vol. 4, pp. 237, 238; 3 Bla. Com. p. 200. The nature of this equitable jurisdiction cannot be clearly defined. The authorities usually cited are Lill. Prac. Reg. p. 496, quoting 27 Henry VIII, p. 15; Litt. Rep. p. 166; 3 Bulst. p. 34 (Court of Marches), where it was held that the chancellor and the Counsell del Marches could quiet possessions, but had not the power to determine the title. The same equitable jurisdiction is exercised in some of the courts of the United States.
[2 ]See Dorsey on Ejectment, p. 10; Gilbert on Eject. p. 4. See § 12.
[3 ]Bel. p. 159.
[4 ]Mich. 33, Henry VI, f. 42, pl. 19.
[5 ]7 Edw. IV, f. 5-10. Per Fairfax: si home port ejectione firmæ, le Plaintiff recovera fon terme qui est arrere, si bien come in quare ejecit infra terminum; et, ei nul soit arrere, donques tout m Damages. (Bro. Abr. tit. Quare ejecit infra terminum, pl. 6.) See Gilbert on Eject. p. 4. See, also, 21 Edw. IV, f. 11; Jenk. Cent. p. 67, case 26.
[6 ]14 Henry VII; Rast. Ent. f. 252.
[7 ]Reeves’ Hist. Eng. Law (ed. 1880), vol. 4, p. 235. Mr. Gilbert observes that it “is a question, which has been much agitated, whether the term was recoverable in ejectment, prior to the reign of Henry VII. . . . Ejectment was never laid with a continuando; consequently the plaintiff in such action could never recover damages for the mesne profits. Hence it may be inferred that the term was recoverable in ejectment, even prior to the reign of Hen. VII; for else, the plaintiff not recovering damages, the action must have been nugatory.” Gilbert on Eject. p. 4.
[1 ]Alden’s Case, 6 Rep. 105 (1601). Plea to a writ of ejectione firmæ was ancient demesne. It was answered and resolved that the plea was good, because the common intendment is, that the title and rights of the land will come in debate. “And forasmuch as at this day all titles of lands are for the greatest part tried in actions of ejectments, if in them ancient demesne should not be a good plea, the ancient privileges . . . would be utterly taken away and defeated.” See Doe d. Poole v. Errington, 1 Ad. & El. 750; especially the learned note at page 756.
[2 ]Report of the English Real Property Commissioners, p. 42.
[3 ]Report of the Commissioners to Revise the General Statutes of Mass., part 3, p. 154, n.
[4 ]3 Bla. Com. p. 201.
[1 ]3 Bla. Com. p. 201; 1 Chanc. Rep. App. p. 39 [*76]; see Stat. 32 Henry VIII, c. 9, s. 2. Mr. Gilbert says: “The ancient practice was, that leases of ejectment, to try the title, should be actually sealed and delivered; because otherwise the plaintiff could maintain no title to the term; and they were also to be sealed on the land itself, it being maintenance to convey out of possession.” Gilbert on Ejectment, p. 7.
[2 ]Lill. Prac. Reg. p. 674.
[3 ]Wilson v. Woddel, 1 Brownl. 143; Yelv. p. 144.
[1 ]Lill. Prac. Reg. p. 673.
[2 ]3 Bla. Com. p. 202.
[3 ]Rules B. R. Trin. 14 Car. II; Cooke’s Rules and Orders.
[4 ]See Longfield on Ejectment, p. 33.
[5 ]Adams on Ejectment (4th ed.), p. 17 [*14].
[1 ]An actual entry was necessary to avoid a fine. Lord Audley v. Pollard, Cro. Eliz. 561; see 4 H. VII, c. 24.
[2 ]See Payne v. Treadwell, 5 Cal. 310.
[1 ]See Gilbert on Ejec. p. 8.
[2 ]Styles’ Reports, p. 368. “If one move that the title of land doth belong unto him, and that the plaintiff hath made an ejector of his own, and thereupon prays that, giving security to the ejector to save him harmless, he may defend the title, this court will grant it,” &c. The practice is mentioned in the Court Rules in 1662; Cooke’s Rules and Orders, B. R. Trin. 14 Car. II, and was continued under Charles II; See Davies’ Case, 1 Keb. 28, P. 13, Car. II.
[3 ]See Cooke’s Rules and Orders, B. R. Mich. 1654. We find a rule forbidding any attorney from acting as lessee in an ejectment, which shows that the lessee was not then an imaginary person.
[4 ]3 Bla. Com. p. 203. The parties were imaginary in many cases in 1678. See Addison v. Otway, 1 Mod. 250-252.
[1 ]See Archbold’s Practical Forms (N.Y. 1828), p. 363.
[2 ]Doe d. Darwent v. Roe, 3 Dowl. 336.
[3 ]Middleton’s Case, 1 Keb. 246.
[4 ]Dennis’ Lessee v. Kelso, 28 Md. 337.
[5 ]Styles’ Rep. 368; Roch v. Plumpton, 1 Keb. 706; Anon., 12 Mod. 211; Roe d. Leak v. Doe, Barnes, 193.
[1 ]Balderidge v. Paterson, Barnes, 172; Goodright d. Duke of Montague v. Wrong, Barnes, 175; see Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1290, especially the learned argument of Mr. Harvey, one of the counsel, and Lord Mansfield’s admirable statement of the nature of ejectment.
[2 ]See Lamb v. Archer, Comb. 208 (5 W. & M.); Jones v. Carwithen, Comb. 339 (7 Will. III); Strike and Dikes, Comb. 332.
[3 ]See Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1290, per Lord Mansfield.
[4 ]See Chap. XXI.
[5 ]See Jackson v. Haviland, 13 Johns. (N. Y.), 229-234; Witbeck v. Van Rensselaer, 64 N. Y. 27-31; People ex rel. Scudder v. Cooper, 20 Hun (N. Y.), 486; Doe d. Morgan v. Bluck, 3 Campb. 447; Equator Mining & Smelting Co. v. Hall, 106 U. S. 86; s. c. 5 Mor. Trans. 92.
[6 ]Clerke v. Rowell, 1 Mod. 10.
[7 ]Stark v. Starrs, 6 Wall. 409. See Chap. XX.
[1 ]See Caperton v. Schmidt, 26 Cal. 500.
[2 ]Sturdy v. Jackaway, 4 Wall. 174. This subject is discussed at length in Chapter XX, on the Judgment. See, further, Dawley v. Brown, 79 N. Y. 390; Doyle v. Hallam, 21 Minn. 515; Wilson v. Henry, 40 Wis. 594; Phillpotts v. Blasdel, 10 Nev. 19; Brownsville v. Cavazos, 100 U. S. 138; Gordinier’s Appeal, 89 Pa. St. 528; Amesti v. Castro, 49 Cal. 325.
[3 ]Kimmel v. Benna, 70 Mo. 52; Hogan v. Smith, 11 Mo. App. 314; Dunn v. Miller, 8 Mo. App. 467.
[1 ]See Chap. XXII.
[2 ]Ferrer’s Case, 3 Coke, 274.
[3 ]Ferrer’s Case, 3 Coke, 274.
[4 ]Booth on Real Actions, p. 156; See Humphrey’s Observations on Real Property, p. 134.
[5 ]Booth on Real Actions, p. 159.
[1 ]Runnington on Ejectment (ed. 1806), p. 12.
[2 ]4 Bro. P. C. 373.
[3 ]12 Peters, 410.
[4 ]See 6 Peters, 763.
[1 ]Addison v. Otway, 1 Mod. 250-252.
[2 ]Anon. Salk. 260. Such release was void. Close v. Vaux, Comb. 8.
[3 ]Moore v. Goodright, Stra. 899.
[1 ]Wright v. Wheatley, Cro. Eliz. 854; Ibgrave v. Lee, Dyer, 116, b. (71).
[2 ]Barwick v. Fenwood, Comb. 250.
[3 ]Adams on Ejectment (4th Am. ed.), p. 20 .
[4 ]Doe d. Watson v. Fletcher, 8 B. & C. 25; Hillingsworth v. Brewster, Salk. 256. See Wrotesley v. Adams, Plowd. 187, 199.
[5 ]Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1290, 1295.
[6 ]Doe d. Feldon v. Roe, 8 T. R. 646; Ralph, Lessee, v. Ejector, 3 Ir. Law Rec. N. S. 141.
[7 ]See note to Keech v. Hall, Doug. 21, 23.
[8 ]Bull. N. P. 110; Doe d. Bristow v. Pegge, 1 T. R. 758 n.
[9 ]Weakly d. Yea v. Bucknell, Cowp. 473.
[10 ]See Doe d. Hodsden v. Staple, 2 T. R. 684, per Kenyon, Ch. J.; Watkins v. Holman, 16 Peters 25, 58.
[1 ]Aslin v. Parkin, 2 Burr. 665, per Lord Mansfield. See note to Doe d. Bailey v. Smyth, Anthon’s Nisi Prius, 242, 244.
[2 ]Woodward v. Brown, 13 Peters 1.
[3 ]Walden v. Craig, 9 Wheat. 576. “Amendments are allowed rather more liberally in ejectments than in other actions.” Longfield on Ejectment, p. 96.
[1 ]Cresap’s Lessee v. Hutson, 9 Gill (Md.) 274; Warner v. Hardy. 6 Md. 525.
[2 ]Cole on Ejectment, p. 1.
[3 ]Longfield on Ejectment, p. 25; citing Adams v. Goose, Cro. Jac. 96; Tesmond v. Johnson, Cro. Jac. 428; Osbourn v. Rider. Cro. Jac. 135; Brigate v. Short, Cro. Jac. 154; Merrell v. Smith, Cro. Jac. 311.
[4 ]Heatherley d. Worthington v. Weston, 2 Wils. 232; Moore v. Fursden, 1 Show 342; Mantle v. Wollington, Cro. Jac. 166.
[5 ]See §§ 2, 3, 5, 6.
[1 ]Booth on Real Actions, pp. 74, 75; Pilford’s Case, 10 Rep. 115, b. (5 Coke, 459); Stearns on Real Actions (2d ed.), pp. 346 (389), 90 (94); Jackson on Real Actions, p. 99.
[2 ]Graves v. Amoskeag Mfg. Co., 44 N. H. 462.
[3 ]3 Bla. Com. 117.
[4 ]Plympton v. Baker, 10 Pick. (Mass.) 474. See §§ 1, 64.
[5 ]Roscoe on Actions Relating to Real Property, p. 2; Stearns on Real Actions (2d ed.), p. 83 ; Markal’s Case, 6 Rep. 3 b. (3 Coke, 264.)
[1 ]3 Bla. Com. p. 193; Fitz. N. B. 1.
[2 ]Gil. Ten. . See Roscoe on Actions Relating to Real Property, p. 19.
[3 ]Jackson on Real Actions, p. 276; Lyon v. Mottuse, 19 Ala. 463.
[4 ]Booth on Real Actions, p. 1. For distinction between a writ of right patent and a writ of right close, see Liter v. Green, 2 Wheat. 311.
[5 ]Inglis v. Trustees of Sailor’s Snug Harbor, 3 Pet. 99. See § 509.
[6 ]Jackson on Real Actions, p. 2.
[7 ]Roscoe on Actions Relating to Real Property, p. 88.
[8 ]See Judge Jackson’s article on this subject, 2 Am. Jur. p. 65.
[9 ]Jackson on Real Actions, p. 12.
[1 ]Report of the Comrs. to Revise the General Statutes of Mass.; Part 3, p. 154 n.
[2 ]Chapin v. First Universalist Soc., 8 Gray (Mass.), 580, per Shaw, C. J.; Eastman v. Fletcher, 45 Me. 302. Compare s. p. in Ejectment, Smith v. McCann, 24 How. 398; Emeric v. Penniman, 26 Cal. 119; Peck v. Newton, 46 Barb. (N. Y.) 173.
[3 ]Ela v. Pennock, 38 N. H. 154; s. p. Moody v. Farr, 33 Miss. 192; but compare Cutting v. Pike, 21 N. H. 347. See Chap. XVIII.
[4 ]Eastman v. Fletcher, 45 Me. 305; s. p. Houston v. Jordan, 35 Me. 520; Shaw v. Wise, 10 Me. 113.
[5 ]Wilbur v. Ripley, 124 Mass. 468.
[6 ]Kerley v. Kerley, 13 Allen (Mass.), 286. See Creighton v. Proctor, 12 Cush. (Mass.) 438.
[7 ]Stearns on Real Actions, p. 321; Booth on Real Actions (1st Am. ed.), p. 138.
[8 ]Frost v. Cloutman, 7 N. H. 9.
[9 ]See § 45. The writ of assize once so popular in England was probably introduced during the reign of Henry II. Its history is of little practical value with us.
[1 ]Ejectment did not flourish in Virginia. New York was then under control of the Dutch.
[2 ]Stearns on Real Actions (2d ed. 1831), p. 352  n.
[3 ]Cole on Ejectment, p. 2.
[4 ]See Chap. XX.
[5 ]1 Story’s Eq. Jur. § 56 and note.
[1 ]Stearns on Real Actions (2nd ed. 1831), p. 352 .
[2 ]Report of the Commissioners to Revise the General Statutes of Mass., Part 3, p. 154. But see Hodgkins v. Price, 137 Mass. 15.
[3 ]We do not intend to imply that American lawyers did not become familiar with real writs. The following cases among others attest the skill that was early acquired in this branch of law in the new world Green v. Liter, 8 Cranch, 229: Green v. Watkins, 7 Wheat. 27; Inglis v. Trustees of Sailor’s Snug Harbor, 3 Peters, 133; Barker v. Salmon, 2 Met. (Mass.) 32; St. Croix v. Sands, 1 Johns. (N. Y.) 328; Swift v. Livingstone, 2 Johns. Cas. (N. Y.), 112; Frost v. Cloutman, 7 N. H. 9.
[4 ]Stearns on Real Actions (2d ed.), p. 92 .
[1 ]Jackson on Real Actions, p. 194. Prof. Pomeroy says of our modern statutory ejectment that “it does not bear the slightest resemblance to the action of ‘ejectment’ as that was contrived by the old judges and lawyers, and only confusion and misconception result from applying to it that name.” Pomeroy’s Remedies, etc., § 294.
[2 ]Jackson on Real Actions, p. 162.
[3 ]Report of English Real Property Commissioners, Vol. 1, p. 42.
[4 ]Potter v. Baker, 19 N. H. 166.
[5 ]Derby v. Jacques, 1 Cliff. 425.
[6 ]Hodgkins v. Price, 137 Mass. 13; Fay v. Taft, 12 Cush. (Mass.) 448; Merrill v. Bullock, 105 Mass. 493.
[1 ]McCann v. Rathbone, 8 R. I. 297.
[2 ]Crandall v. Gallup, 12 Conn. 371.
[3 ]Caperton v. Schmidt, 26 Cal. 479, 496.
[4 ]Genin v. Ingersoll, 2 W. Va. 558.
[5 ]Newell v. Woodruff, 30 Conn. 497. See Field v. Hawley, 126 Mass. 327; Towle v. Ayer, 8 N. H. 57; Smith v. Burtis, 6 Johns. (N. Y.) 217. See § 93.
[1 ]Stat. at Large, S. C. vol. V, p. 170; since repealed. See Chapter 147, Revised Statutes, 1873, p. 801.
[2 ]Kennedy v. Campbell, 2 Const. Rep. (S. C.) 760.
[3 ]Lynch v. Withers, 2 Bay (S. C.), 115-119, in notis.
[4 ]Massey v. Trantham, 2 Bay (S. C.), 421; Underwood v. Sims, 2 Bailey (S. C.), Law, 81.
[5 ]Spigener v. Cooner, 8 Rich. (S. C.), Law, 301.
[6 ]See §§ 15, 19, 39, 40.
[1 ]Stat. at Large, S. C. vol. V, p. 170, § 4.
[2 ]Frost ads. Brown, 2 Bay (S. C.), 133-144.
[3 ]Revised Statutes South Carolina (ed. 1873), p. 586; Ibid, chap. 147, p. 801.
[4 ]Greenl. on Ev. vol. 2, § 303, p. 286.
[1 ]This Essay was first published in the Harvard Law Review (1903-4), vol. XVII, pp. 549-557, vol. XVIII, pp. 36-50.
[2 ]Reader in English Law in the University of Cambridge, since 1907; Lecturer in Law at Emmanuel College, Cambridge, since 1906, and Fellow of Emmanuel College, since 1908. A. B. Brown University, 1894; LL. B. Harvard University, 1898; J. U. D., Berlin University, 1905; Hon. M. A., Cambridge University, 1906. Lecturer in the Law School of the University of Chicago, 1906. Professor of Law in the University of Wisconsin, 1908.
[1 ]Cf. Thayer, Evidence at the Common Law 393.
[1 ]On Schuld and Haftung compare von Amira, Nordgermanisches Obligationenrecht (Altschwedisches Obligationenrecht ) 22-42, and (Westnordisches Obligationenrecht ) 56 et seq.; 2 Brinz, Pandekten (1879) 1 et seq. See also 1 Chironi, Trattato dei privilegi, delle ipoteche e del pegno (1894) 1 et seq.
[2 ]For the details of this view of the Germanic development in general, but without a consideration of the English texts, see 2 Heusler, Institutionen des deutschen Privatrechts 128-153, 225-250; Wigmore, The Pledge-Idea, 10 Harv. L. Rev. 321-341 (citing, in his discussion of the historical significance of the “release” and “quit-claim,” Professor Ames’ essays on Disseisin, 3 Harv. L. Rev. 23, 313, 327, unfortunately not accessible to the present writer during the preparation of this article). Compare also Wigmore, The Pledge-Idea, 11 Harv. L. Rev. 29.
[1 ]See 1 Dernburg, Pfandrecht 1-95.
[2 ]See von Meibom, Das deutsche Pfandrecht; Brunner, Grundzüge der deutschen Rechtsgeschichte 188-191.
[3 ]See Franken, Das französische Pfandrecht im Mittelalter 1-36; Viollet, Histoire du droit civil français (1893) 733-748.
[4 ]On the medieval law on the continent see especially Franken, Das französische Pfandrecht im Mittelalter 207, 208; and Brunner, Grundzüge der deutschen Rechtsgeschichte 188-191. Compare also Beauchet, Histoire de la propriété foncière en Suède (1904) 424 et seq.
[1 ]“See Brunner, Zur Rechtsgeschichte der römischen und germanischen Urkunde 194-198; Kohler, Pfandrechtliche Forschungen 95, 96. Compare Lodge, The Anglo-Saxon Land Law (Essays in Anglo-Saxon Law 106, 107).
[2 ]Glanvill, X. 6, 8. Compare 1 Robbins, Law of Mortgages (1897) 1-5; Fisher, Law of Mortgage (1897) 4-7; 3 Gray, Cases on Property 411, n. 1. The English vivum vadium corresponds, therefore, to the German Todsatzung and the English mortuum vadium to the German Zinssatzung.
[1 ]Glanvill, X. 8; 2 Pollock and Maitland, Hist. Eng. Law (1898) 119. The principle of the vivum vadium is found in Madox, Formulare, No. CXLII. Compare Round, Ancient Charters, No. 56.
[2 ]2 Pollock and Maitland, Hist. Eng. Law 111, 112, 117, 121, 122. Compare the Rentenkauf of the German Middle Ages. 1 Heusler, Institutionen des deutschen Privatrechts 338, 355, 375, 2 idem 150-153.
[3 ]Co. Lit. 205a.
[4 ]See 1 Robbins, Law of Mortgages (1897) 1-31; Pollock, Land Laws (1896) 133.
[1 ]Glanvill, X. 6. See also 1 Spence, Equitable Jurisdiction (1846) 600, 601; Chaplin, Story of Mortgage Law, 4 Harv. L. Rev. 8; 2 Pollock and Maitland, Hist. Eng. Law 120.
[1 ]Glanvill, X. 6-8. On the burden of proof see Chaplin, Story of Mortgage Law, 4 Harv. L. Rev. 9.
[2 ]Glanvill, X. 8; 2 Pollock and Maitland, Hist. Eng. Law 120. On the equitable nature of certain features of this procedure in the king’s court and their similarity to the “equity of redemption” and “decree of foreclosure” in the courts of equity at a later day, see Chaplin, Story of Mortgage Law, 4 Harv. L. Rev. 9, 10; 2 Pollock and Maitland, Hist. Eng. Law 120.
[1 ]Glanvill, X. 11, XIII. 28, 29; 2 Pollock and Maitland, Hist. Eng. Law 120, 121. See further Chaplin, Story of Mortgage Law, 4 Harv. L. Rev. 6, 7.
[2 ]Glanvill, X. 11; 2 Pollock and Maitland, Hist. Eng. Law 120, 121. See Bracton, f. 268.
[3 ]Glanvill, X. 6, 8-10, XIII. 26-30.
[4 ]Glanvill, X. 6-8, 11, 12.
[1 ]2 Pollock and Maitland, Hist. Eng. Law 120, 121.
[2 ]Bracton, f. 20, 268, 269; 3 Britton XV, §§2-7; Bracton’s Note Book, pl. 889; Madox, Formulare, No. DIX; Cart. Guisborough 144; 2 Pollock and Maitland, Hist. Eng. Law 122. See also Round, Ancient Charters, No. 56; 1 Chron. de Melsa 303; Madox, Formulare, No. CCIII; Y. B. 21-22 Ed. I. pp. 125, 222-224.
[3 ]See Littleton, §§ 349, 350; Co. Lit. 216-218; 2 Pollock and Maitland, Hist. Eng. Law 122, 123.
[4 ]See Bracton’s Note Book, pl. 458; Y. B. 20-21 Ed. I. p. 422; Y. B. 30-31 Ed. I. pp. 208-212; Madox, Formulare, Nos. DLX-DLXII, DLXIX, DLXXIX; Littleton, §§ 332-344. According to modern practice in England the mortgage takes the form of an absolute conveyance to the mortgagee, with an agreement on his part to reconvey when the loan is paid. See Ames, Specific Performance, 17 Harv. L. Rev. 174.
[1 ]Franken, Franzosisches Pfandrecht 162, 163.
[2 ]See the authorities cited in note 4, p. 655.
[3 ]On a similar form of conditional conveyance for purposes of security in the Anglo-Saxon period see Brunner, Zur Rechtsgeschichte der römischen und germanischen Urkunde 194-198.
[4 ]Franken, Das französische Pfandrecht im Mittelalter 7, and Brunner, Grundzüge der deutschen Rechtsgeschichte 189, 190, take this view as to the Germanic law on the Continent. 2 Heusler, Institutionen des deutschen Privatrechts 135, 143-150, maintains that both the gage with and the gage without the creditor’s possession appear equally early in old German law, and that indeed there is no direct connection between judicial execution and the origin of the gage with debtor’s possession. For views of other legal scholars see 2 Heusler, Institutionen 144, and Wigmore, The Pledge-Idea, 10 Harv. L. Rev. 341-350. Although the present writer alone is responsible for views held in this paper, he wishes to express indebtedness to his friends Professor Gierke and Dr. Neubecker, of the University of Berlin, for suggestions as to the nature of the gage with possession of the debtor, more especially the German Hypothek.
[1 ]For the German law see 2 Heusler, Institutionen 135, 147, 148.
[2 ]See Glanvill, III.; Bracton, f. 257b-261b, 380-399b; Beames, notes to Glanvill, III., Beale’s edition; Holmes, Common Law 372; 1 Gray, Cases on Property 416-419. Compare 2 Brunner, Deutsche Rechtsgeschichte 516; 2 Pollock and Maitland, Hist. Eng. Law 663.
[3 ]See Bracton, f. 399, and 2 Pollock and Maitland, Hist. Eng. Law 218, n. 4, 664. Compare Rawle, Covenants for Title, 5th ed., 12, 16.
[1 ]Bracton, f. 382. In the later Middle Ages a mere warranty would not bind the other lands of the warrantor in whatsoever hands they might come. To create a lien on the land it was necessary to bring an action of warantia cartae and get a judgment pro loco et tempore. See Rawle, Covenants for Title, 5th ed., 12, 13.
[2 ]See Bracton, f. 382, 388b, and the thirteenth-century annotations to Bracton’s Note Book, pl. 748.
[3 ]Bracton, f. 382; Bracton’s Note Book, pl. 748, and thirteenth-century annotations; Y. B. 20-21, Ed. I., pp. 359-361. See Maitland, Bracton’s Note Book, pl. 748, note 7.
[4 ]Bracton, f. 382, 382b, 388, 388b; Bracton’s Note Book, pl. 748, thirteenth-century annotations.
[5 ]See Bracton, f. 380-382b, 388, 388b; Bracton’s Note Book, pl. 638, 748, 1024; Fleta, lib. VI. c. 23, § 17; Maitland, Bracton’s Note Book, pl. 748, note 7; Holmes, Common Law 394, 395. Holmes, Common Law 395: “Fleta writes that every possessor will be held. There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful.” The various writs will be found very fully collected in Bracton, f. 380-399b.
[6 ]The endowment is at the door of the church to insure publicity and solemnity. See Coke on Littleton 34a; Beames, Translation of Glanville, Beale’s ed. 94, n. 2; 2 Pollock and Maitland, Hist. Eng. Law 374, 375.
[7 ]Compare Co. Lit. 30b, 31a.
[1 ]In the later Middle Ages the dos nominata may be more than a third of all the lands. See Littleton, §§ 37, 39; 2 Pollock and Maitland, Hist. Eng. Law 421, 425, 426. Compare Co. Lit. 33b.
[2 ]Glanvill, VI. 1, 2, 17; Bracton, f. 92; 1 Reeves, Hist. Eng. Law 155, 156; 2 Pollock and Maitland, Hist. Eng. Law 420, 421, 425.
[3 ]1 Nichols, Britton, pp. xli, xlii, and 2 idem 238, 242; 2 Pollock and Maitland, Hist. Eng. Law 421.
[4 ]Littleton, § 37; Co. Lit. 33b. Compare 2 Reeves, Hist. Eng. Law 577-579.
[5 ]Bracton, f. 299b; 2 Pollock and Maitland, Hist. Eng. Law 422, 423. On the legal nature of the wife’s right in the land before the husband’s death, compare Bracton, f. 300b; Beames, Translation of Glanville, Beale’s ed., 97, n. 3. See Glanvill, VI. 3.
[1 ]Bracton, f. 300; 2 Pollock and Maitland, Hist. Eng. Law 423, 426. For the writs of the dowager see Glanvill, VI.; Bracton, f. 296-317b; 2 Britton, liv. V., c. IV.-XIII.
[2 ]See, for instance, Stat. Glouc., 6 Ed. I. c. 4; Stat. West. II, 13 Ed. I. c. 21; 1 Britton, liv. II. c. XVIII, § 10; Holmes, Common Law 388. Similar in its effect is the so-called Abmeierungsrecht in the case of the German Erbpacht and the emphyteusis of Roman law and the German common law. Compare also von Amira, Das Altnorwegische Vollstreckungsverfahren (1874) 314 et seq.
[3 ]Note, further, the special significance of the rent-charge in the English medieval period. Compare 2 Heusler, Institutionen 150-153.
[4 ]See 2 Chron. Abingd. 128; Wright, Tenures 197-199; Gilbert, Rents 3, 4; Robinson, Gavelkind 195; 2 Reeves, Hist. Eng. Law 186; 1 Pollock and Maitland, Hist. Eng. Law 354. See also Placita Ang.-Norm. 97.
[1 ]See Stat. Glouc., 6 Ed. I. c. 4; Stat. West. II, 13 Ed. I., c. 21; F. N. B. f. 208 H, 209, 210 A.; Coke, 2 Inst. 295, 400, 460; 3 Blackstone c. 15, § I; Co. Lit. 47a, n. 4; Co. Lit. 142a, n. 2; Co. Lit. 143b, n. 5; Booth, Real Actions 133-135; Wright, Tenures 202; Robinson, Gavelkind 193-195; 1 Pollock and Maitland, Hist. Eng. Law, 353.
[2 ]Consuetudines Cantiae, 1 Statutes of the Realm 224a, 225; Lambarde, Perambulation of Kent 498, 499, 526-528; 2 Reeves, Hist. Eng. Law 186, 187; Robinson, Gavelkind 195, 196. Compare Co. Lit. 142a, n. 2.
[1 ]Consuetudines Cantiae, 1 Statutes of the Realm 225; Lambarde, Perambulation 528; Robinson, Gavelkind 196.
[2 ]For details as to this question see De Wandlesworth’s Case, reported in Robinson, Gavelkind 197; 1 Statutes of the Realm 225, n. 1; Lambarde, Perambulation 449; Robinson, Gavelkind 196-202; 1 Pollock and Maitland, Hist. Eng. Law 355, n. 1. Compare 2 idem 591-593.
[3 ]Statutum de Gaveleto in London, 1 Statutes of the Realm, 222; Robinson, Gavelkind 194; Co. Lit. 142a, n. 2; 2 Reeves, Hist. Eng. Law 186, 187.
[1 ]Cowel, Interpreter (1727), s. v. Foreschoke: “Foreschoke (Direlictum) signifies originally as much as forsaken in our modern language.”
[2 ]Glanvill, IX, 8; Bracton, f. 205b, 217, 218; Bracton’s Note Book, pl. 2, 270, 348, 370; Wright, Tenures 199-201; Co. Lit. 142a, n. 2; 1 Pollock and Maitland, Hist. Eng. Law 352-355. Compare Gilbert, Rents 3, 4. It is true that feoffors and feoffees may expressly agree that, on default, the feoffor may by re-entry get back the land; but such agreements are, before the middle of the thirteenth century, very rare indeed. 1 Pollock and Maitland, Hist. Eng. Law 352.
[1 ]Lit. § 327; Co. Lit. 202b, 203a. See Co. Lit. 205a, and marginal note (d).
[2 ]See, further, 3 Hoveden 266, 267; Bracton, f. 13, 386b; 2 Blackstone, c. 20; Plowden, Usury 95-98; Horwood, Y. B. 32-33 Ed. I., pp. xii, xlii; Jacobs, Jews of Angevin England; Gross, Exch. of the Jews (printed in 1 Publications of Anglo-Jewish Hist. Exhibition); 1 Pollock and Maitland, Hist. Eng. Law 468-475, 2 idem 123, 124; Rigg, Jewish Exch. (Seld. Soc.) ix-lxii; Hazeltine, Exch. of the Jews, 18 L. Quart. Rev. 305-309.
[1 ]See, further, preambles to Stat. Act. Burnel, 11 Ed. I., and Stat. Merchant, 13 Ed. I.; Coke, 2 Inst. 677-680, 4 Inst. 237, 238; Bac. Abr. tit. Execution; Comyn, Digest, tit. Obligation (K); Wright, Tenures 170-171; 2 Blackstone, c. 10, § V, c. 20, § 2, 3 idem c. 26, § 5, 4 idem c. 33, § III; 2 Reeves, Hist. Eng. Law 71, 72, 276-279, 3 idem 289; Coote, Mortgage, 2 ed., 66; Rogers, Indus. and Com. Hist. Eng. (1892) 71, 72; Cunningham, Eng. Indus. and Com. during Early and Middle Ages, (1896) 222, n. 3, 281-283, 290, 316, 317; Cunningham and McArthur, Eng. Indus. Hist.; 2 Pollock and Maitland, Hist. Eng. Law 203, 204, 596, 597; Brodhurst, Merchants of the Staple, 17 L. Quart. Rev. 62-74; Carter, Eng. Legal Institutions (1902) 250-270.
[1 ]See on this system of archae and rotuli the authorities cited in n. 2, p. 664, supra. Compare Rigg, Jewish Exch. (Seld. Soc.), pp. xiii, xxxvii, 136 (s. v. stallare). On the enrolment of documents in the Great Exchequer see 1 Hall, Red Book of Exchequer, pp. xix-xxxv.
[2 ]See Jacobs, Jews 57, 66, 67, 70-72, 99, 215, 216, 220, 221, 234; Jewish Exch. (Seld. Soc.) 45. On the gaging of rents and chirographs of debt see Jacobs 99; Jewish Exch. (Seld. Soc.) 28, 29, 33, 34, 43-45.
[3 ]Rigg, Jewish Exch. (Seld. Soc.) p. xiii.
[4 ]See Jewish Exch. (Seld. Soc.) p. xix, n. 1, 33, 34, 92-94, 102; Webb, Question, App. Nos. 19, 30, 31. See further Jewish Exch. (Seld. Soc.) 67, 68, 91, 93.
[5 ]The Jewish gage of chattels seems to be a gage with immediate possession of creditor. See an article by the present writer entitled The Exchequer of the Jews, 18 L. Quart. Rev. 308. Compare Rigg, Jewish Exch. (Seld. Soc.) p. xiii.
[6 ]See the cases in Jewish Exch. (Seld. Soc.) 18, 63; Les Estatutes de la Jeuerie, 1 Stats. of Realm 221; 1 Madox, Hist. Exch. 233, n. (y). Compare the case of De Sawston v. De Senlis, Jewish Exch. (Seld. Soc.) 53. The alienee may, however, vouch his warrantor. See the case in Jewish Exch. (Seld. Soc.) 63.
[1 ]Our sources are full of actions of Debt. See, e. g., Tovey, Anglia Judaica 42, 43, 50; Prynne, Demurrer, part 2, p. 11; Cole, Documents of 13th and 14th Centuries 285-332; Jewish Exch. (Seld. Soc.), s. v. Debt.
[2 ]See Jacobs, Jews 57, 90, 231 (and compare 233), 234; Webb, Question, App. No. 4; Bracton’s Note Book, pl. 301; Plac. Abb. (Rec. Com.) p. 58; “Exchequer Receipt Roll, 1185” (with preface by Hubert Hall) 31; Les Estatutes de la Jeuerie, 1 Stats. of Realm 221a; Goldschmidt, Geschichte der Juden in England 69, n. 37; Jewish Exch. (Seld. Soc.) pp. xiii, xxxviii, n. 1, 63, and Index s. v. Seisin. Compare Rigg, Jewish Exch. (Seld. Soc.) p. xxxv. Similarly, the assignee of the Jewish creditor may obtain seisina of the gaged land per praeceptum Domini Regis. See Webb, Question, App. No. 6.
[3 ]1 Foedera 51 (see Jacobs, Jews 134-138); 1 Rotuli Chartarum, ed. Hardy, 93 (see also Tovey, Ang. Jud. 62-64, and Jacobs, Jews 212-214); Goldschmidt, Juden in England 21, 22; Rigg, Jewish Exch. (Seld. Soc.) xiii. See Webb, Question, App. No. 14. Richard I.’s Carta quâ plurimae libertates Judeis conceduntur & confirmantur (1190), 1 Foedera 51: Et liceat predictis Judeis quiete vendere vadia sua, postquam certum erit illos ipsa per unum annum integrum & unum diem tenuisse.
[4 ]See Jewish Exch. (Seld. Soc.) xiii, xxxviii, n. 1, lvii, 19-27, 43-45, 89-91; Chapitles Tuchaunz La Gyuerie, Jewish Exch. (Seld. Soc.) lvi; Les Estatutes de la Jeuerie. 1 Stats. of Realm 221a; Jacobs, Jews 233.
[5 ]See Jacobs, Jews 231; Webb, Question, App. Nos. 4, 6; Rigg, Jewish Exch. (Seld. Soc.) xiii, xxxviii, n. 1.
[6 ]See Plac. Abb. (Rec. Com.) 64, 82, 175; Bracton’s Note Book, pl. 301, 1825; Jacobs, Jews 191, 234; Webb, Question, App. No. 6.
[7 ]Compare 2 Pollock and Maitland, Hist. Eng. Law 90-92; Wigmore, The Pledge-Idea, 10 Harv. L. Rev. 335. Sometimes, by collusion with powerful personages, it was contrived to defer the redemption indefinitely, “thus compassing by sharp practice what we now call foreclosure.” Rigg, Jewish Exch. (Seld. Soc.) xxxvii.
[1 ]See n. 4, p. 667. The Jews were expelled from England in 1290.
[2 ]See Stat. Acton Burnel, 11 Ed. I.; Stat. Merc. 13 Ed. I.; Stat. West. II, 13 Ed. I., c. 18; Stat. 5 Ed. II., c. 33; 14 Ed. III., Stat. 1, c. 11; Stat. Staple, 27 Ed. III., Stat. 2, c. 9; Stat. 36 Ed. III., c. 7; Stat. 10 Hen. VI., c. 1; Stat. 23 Hen. VIII., c. 6; Stat. 32 Hen. VIII., c. 5; Stat. 2 & 3 Ed. VI., c. 31; Reg. Brev. f. 146-153, 299; Viner, Abr. tit. Stats. Merchants &c.; Bac. Abr. tit. Execution (B); 1 Ro. Abr. 311, 892; 2 Ro. Abr. 466, 472, 473; Bro. Abr. tit. Stat. Merc. & Stat. Staple; F. N. B. f. 266, 267 D.; Coke, 2 Inst. 395, 396, 679; Co. Lit. 289b, 290a; Wright, Tenures 170, 171; 2 Lilly, Pract. Reg. 658, 659; 2 Blackstone, c. 10, § IV., V.; 2 idem c. 20, 3 idem c. 26, § 4, 4 idem c. 33, § III.; Co. Lit. 191a, n. VI. 9; 2 Tidd, Practice 1101, 1102; 2 Wms. Saunders, 197, n. (a), 199, n. (c), 208, n. (u), 217, n. (3), 218, n. (c); 2 Reeves, Hist. Eng. Law 96, 97, 3 idem 289; Williams, Real Prop. 262, 263, 266, 283, 284, 371, 372, 407, 408. On the modern law see Coote, Mortgage, 2nd ed., 68, 72, 82, 83; Williams, Real Prop. 261 et seq.
[1 ]See Stat. Merc. 13 Ed. I.; Stat. 23 Hen. VIII., c. 6; F. N. B. f. 122 D; Viner, Abr. tit. Stat. Merc. &c.; Bro. Abr. tit. Stat. Marc. &c.; Bac. Abr. tit. Execution (B). As to a “statute staple” see, however, Viner, Abr. tit. Stat. Merc. &c.; 2 Lilly, Pract. Reg. 659.
[2 ]Stat. West. II, c. 18; Stat. Merc. 13 Ed. I.; Stat. Staple, 27 Ed. III., c. 9; Y. B. 15 Ed. III., 327; Y. B. 15 Hen. VII., 16; Y. B. 2 Rich. III., 8; Y. B. 17 Ed. III., 3; Reg. Brev. f. 299; F. N. B. f. 130-132, 266 A.; F. N. B. 8 ed. 304, n. (a); 1 Ro. Abr. 311; 2 Ro. Abr. 472-475, 478; Bro. Abr. tit. Stat. Marc., pl. 16, 43, 49, 50; Viner, Abr. tit. Stat. Merc. &c.; Bac. Abr. tit. Execution (B); Coke, 2 Inst. 395, 396, 471, 678-680; Co. Lit. 290a; 2 Blackstone c. 10, § 5, 3 idem c. 26, § 4; 2 Wms. Saunders, 220, n. (3), 221, n. (3), 260, n. (6); 2 Tidd, Prac. 1083, 1084; Wms., Real Prop. 268. Compare Wms., Real Prop. 281, 282. On the judgment creditor’s right of sale in modern law see Wms., Real Prop. 268.
[3 ]See Coke, 2 Inst. 679, note; 2 Blackstone c. 10, § IV.
[1 ]See Reg. Brev. f. 299; Rastell, Entries, 543, 545; F. N. B. f. 178 G, 189 I; 2 Ro. Abr. 475; Coke, 2 Inst. 396; 2 Blackstone c. 10, § IV., V., 3 idem c. 26, § 4; 2 Wms. Saunders 203, n. (1); Wms., Real. Prop. 268.
[2 ]See Butler’s note to Co. Lit. 208a; Leake, Digest 205. Compare F. N. B. f. 178 G.
[3 ]28 Ass. pl. 7; F. N. B. f. 178; Coke, 2 Inst. 396; Co. Lit. 42a, 43b; 4 Co. 82a, Corbet’s Case; 2 Blackstone ch. 10, § V.; Butler’s note to Co. Lit. 208a; Leake, Digest 205.
[4 ]Co. Lit. 43b.
[5 ]Compare Savigny’s theory as to the gagee’s “derived possession” (abgeleiteter Besitz). For the literature and a criticism of the theory see 1 Dernburg, Pandekten (1900) § 172. See also 2 Puchta, Institutionen (1893) § 229; 3 Dernburg, Das burgerliche Recht (1904) § 10.
[1 ]See Stat. Merc. 13 Ed. I.; F. N. B. f. 130, 131; Co. Lit. 43b; 2 Blackstone, ch. 10, § V.; Butler’s note to Co. Lit. 208a. In Butler’s note to Co. Lit. 208a these principles as to the nature of the tenant by statute’s interest in the land are compared with the rules of Equity in regard to the classical mortgage by conditional feoffment.
[2 ]F. N. B., 8th ed. 412, n. (e), citing 12 Hen. 6, 4.
[3 ]See Stat. Merc. 13 Ed. I.; Coke, 2 Inst. 396, 678, 679; and authorities cited in n. 2, p. 668, supra.
[4 ]See Coke, 2 Inst. 679, note; Viner, Abr. tit. Stat. Merc. &c. On the doctrine of Equity as to an accounting by the conusee, see Shep. Touch. 357, n. (i).
[5 ]One of the most significant features of the modern development is the transformation of the old mortgage of Littleton and the classical common law into a form of security where the debtor usually remains in possession until default and where, instead of foreclosure, the mortgaged land may under certain circumstances be sold, either under a power of sale or by order of the court, the surplus going to the debtor. See, further, Franken, Französisches Pfandrecht, 8, 9, 164-170; 5 Glasson, Histoire du droit et des institutions de l’Angleterre, 485; 6 idem 385-406; Williams, Real Property (1901) 527-559.
[1 ]In modern German law it is possible to satisfy the claim of the creditor out of the fruits of the land (Zwangsverwaltung) or out of the substance of the res itself (Zwangsversteigerung). See Das Reichsgesetz über die Zwangsversteigerung und Zwangsverwaltung of March 24, 1897, revised May 20, 1898.
[1 ]This Essay was first published in A Century of Law Reform, 1901 (London: MacMillan & Co.), cc. IX, X, pp. 280-340.
[2 ]Barrister of Lincoln’s Inn. M. A. Dublin University, LL. D. 1881; sometime Reader of the Law of Property in the Inns of Court; one of the six Conveyancing Council to the High Court of Justice, 1905.
[1 ]Whitby v. Mitchell, 44 Ch. D. 85.
[2 ]Cadell v. Palmer: Tudor’s L. C. Conveyancing, 578.
[1 ]3 and 4 Will. IV. c. 74.
[1 ]Hamlet. Act V. sc. 1.
[2 ]3 and 4 Vict. c. 55 and 8 and 9 Vict. c. 56.
[3 ]27 and 28 Vict. c. 114.
[4 ]33 and 34 Vict. c. 56.
[5 ]34 and 35 Vict. c. 84.
[6 ]19 and 20 Vict. c. 120.
[7 ]40 and 41 Vict. c. 18.
[1 ]45 and 46 Vict. c. 38.
[1 ]8 and 9 Vict. c. 106.
[1 ]3 Ch. D. 393.
[2 ]40 and 41 Vict. c. 33.
[3 ]Tudor’s Leading Cases in Conveyancing, 578.
[4 ]39 and 40 Geo. III. c. 98.
[1 ]41 Ch. D. 532.
[2 ]Re Courtier, 34 Ch. D. 136.
[3 ]Re de Teissier, (1893) 1 Ch. 153.
[1 ]3 and 4 Will. IV. c. 74.
[2 ]34 L. J. Ch. 203.
[3 ]33 and 34 Vict. c. 93.
[4 ]45 and 46 Vict. c. 75.
Lyrics of Lincoln’s Inn.
[2 ]18 and 19 Vict. c. 43.
[3 ]31 and 32 Vict. c. 40 and 39 and 40 Vict. c. 17.
[1 ]40 and 41 Vict. c. 18.
[2 ]44 and 45 Vict. c. 41.
[3 ]17 Ed. II. cc. 9 and 10.
[1 ]53 Vict. c. 5.
[2 ]3 and 4 Will. IV. c. 105.
[3 ]53 and 54 Vict. c. 29.
[1 ]3 and 4 Will. IV. c. 106.
[2 ]17 and 18 Vict. c. 113, 30 and 31 Vict. c. 69, and 40 and 41 Vict. c. 34.
[1 ]22 and 23 Vict. c. 35.
[1 ]No doubt the Limitation Act, 1623, limited the right to bring an action of ejectment to 20 years, but it did not prevent real actions or writs of right being brought within 60.
[2 ]3 and 4 Will. IV. c. 27.
[3 ]37 and 38 Vict. c. 57.
[1 ]3 Ed. I. c. 39.
[2 ]3 and 4 Will. IV. c. 71.
[1 ]7 App. Cas. 633.
[2 ]6 App. Cas. 740.
[1 ]Temp. Ed. IV.
[1 ]57 and 58 Vict. c. 46.
[2 ]20 Hen. III. c. 4.
[1 ]8 and 9 Vict. c. 118.
[2 ]29 and 30 Vict. c. 122, and 32 and 33 Vict. c. 107.
[3 ]39 and 40 Vict. c. 56.
[4 ]43 Ch. D. 484.
[1 ]56 and 57 Vict. c. 57.
[2 ]6 and 7 Will. IV. c. 71, amended by a long series of Acts.
[3 ]54 Vict. c. 8.
[1 ]34 and 35 Vict. c. 79.
[1 ]22 and 23 Vict. c. 35, secs. 4-9.
[2 ]23 and 24 Vict. c. 126, sec. 2.
[3 ]44 and 45 Vict. c. 41.
[4 ]Covenants against assigning or underletting, and covenants in mining leases and conditions for forfeiture on bankruptcy of the tenant. But as to the last see Conveyancing Act, 1892, sec. 3.
[1 ]See 37 and 38 Vict. c. 78, sec. 7, and 38 and 39 Vict. c. 87.
[1 ]29 Car. II. c. 3.
[2 ]1 Vict. c. 26.
[1 ]8 and 9 Vict. c. 106.
[2 ]44 and 45 Vict. c. 41.
[3 ]44 and 45 Vict. c. 44.
[1 ]60 and 61 Vict. c. 65.
[1 ]At present it is confined to the County of London.
[1 ]Act of 1897, sec. 7 sub-sec. 3.