The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo-american Legal History: Volume Iii History of Particular Topics, Continued
• Part V.: Commercial Law
• 47.: Thomas Edwar Scrutton, General Survey of the History of the Law Merchant 1
• 48.: Spencer Brodhurst, the Merchants of the Staple 1
• 49.: Francis Marion Burdick, Contributions of the Law Merchant to the Common Law 1
• 50.: Edward Jenks, the Early History of Negotiable Instruments 1
• 51.: William Cranch, Promissory Notes Before and After Lord Holt 1
• 52.: William Reynolds Vance, the Early History of Insurance Law 1
• 53.: Edward Wyndham Hulme, the Early History of the English Patent System 1
• 54.: Joseph Henry Beale, Jr., the History of the Carrier’s Liability 1
• 55.: Cecil Thomas Carr, Early Forms of Corporateness 1
• 56.: William Mitchell, Early Forms of Partnership 1
• 57.: Samuel Williston, the History of the Law of Business Corporations Before 1800 1
• 58.: Simeon Eben Baldwin, History of the Law of Private Corporations In the Colonies and States 1
• Part VI.: Contracts
• 59.: James Barr Ames, the History of Assumpsit 1
• 60.: James Barr Ames, the History of Parol Contracts Prior to Assumpsit 1
• 61.: John William Salmond, the History of Contract 1
• 62.: Crawford Dawes Hening, History of the Beneficiary’s Action In Assumpsit 1
• 63.: Oliver Weldell Holmes, Jr., the History of Agency 1
• Part VII: Torts
• 64.: James Barr Ames, the History of Trover 1
• 65.: Van Vechten Veeder, the History of the Law of Defamation 1
• 66.: John Henry Wigmore, Responsibility For Tortious Acts: Its History 1
• Part VIII: Property (in General)
• 67.: James Barr Ames, the Disseisin of Chattels 1
• 68.: Frederick William Maitland, the Mystery of Seisin 1
• 69.: Arthur George Sedwick and Frederick Scott Wait, the History of the Action of Ejectment In England and the United States 1
• 70.: Harold Dexter Hazeltine, the Gage of Land In MediÆval England 1
• 71.: Arthur Underhill, Changes In the English Law of Real Property During the Nineteenth Century 1
• Part IX.: Wills, Descent, Marriage
• 72.: Charles Gross, the MediÆval Law of Intestacy 1
• 73.: Oliver Weldell Holmes, Jr., Executors In Earlier English Law 1
• 74.: Robert Caillemer, the Executor In England and On the Continent 1
• 75.: Melville Madison Bigelow, the Rise of the English Will 1
• 76.: James Bryce, Marriage and Divorce Under Roman and English Law 1
• List of Authors Contributing

69.

THE HISTORY OF THE ACTION OF EJECTMENT IN ENGLAND AND THE UNITED STATES1

By Arthur George Sedgwick2and Frederick Scott Wait3

§ 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

The writ was drawn either as a præcipe or a si te fecerit securum. When first introduced the former was considered the better form,2 but in the time of Edward III the latter was universally adopted.3

§ 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.

. . . . . . . . . .

§ 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

. . . . . . . . . .

§ 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

. . . . . . . . . .

§ 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

. . . . . . . . . .

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.

[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.

Other Publications: editor of the 5th, 7th, and 8th editions of (his father) T. S. Sedgwick’s Treatise on the Measure of Damages, 1869-1890; Constitutional Protection of Property Rights, 1882; Elements of Damages, 2d ed. 1909.

[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.

Other Publications: Fraudulent Conveyances and Creditors’ Bills, 3d ed. 1897; Insolvent Corporations, 1888; and articles in legal journals and encyclopedias.

[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 [208].

[3 ]Ibid, p. 186 [215].

[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. [98]: 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 [54]; 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.

Suits to quiet title.—The statutes in force in many States permitting persons in possession to maintain a suit in equity, against any party claiming an interest in the land, adverse to the possessor, for the purpose of determining such claim and quieting the title, confer “a jurisdiction beyond that ordinarily exercised by courts of equity, to afford relief in the quieting of title and possession of real property. By the ordinary jurisdiction of those courts a suit would not lie for that purpose, unless the possession of the plaintiff had been previously disturbed by legal proceedings on the part of the defendant, and the right of the plaintiff had been sustained by successive judgments in his favor.” Field, J., in Stark v. Starrs, 6 Wall. 409, citing Shepley v. Rangely, Daveis, 242; Devonsher v. Newenham, 2 Schoales & Lef. 208; Curtis v. Sutter, 15 Cal. 259.

[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 [18].

[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 [84]; Markal’s Case, 6 Rep. 3 b. (3 Coke, 264.)

[1 ]3 Bla. Com. p. 193; Fitz. N. B. 1.

[2 ]Gil. Ten. [47]. 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 [396] 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 [396].

[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 [97].

[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.