Front Page Titles (by Subject) CHAPTER X.: OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER X.: OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD.
*[*167I come now to consider such injuries as affect that species of property which the laws of England have denominated real; as being of a more substantial and permanent nature than those transitory rights of which personal chattels are the object.1
Real injuries, then, or injuries affecting real rights, are principally six:—1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Disturbance.
Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession; for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that hath a right, to seek his legal remedy in order to gain possession and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods:—1. Abatement; 2. Intrusion; 3. Disseisin; 4. Discontinuance; 5. Deforcement. All of which, in their order, and afterwards their respective remedies, will be considered in the present chapter.
1. And first, an abatement is where a person dies seised of an inheritance and before the heir or devisee enters, a stranger **168]who has no right makes entry and gets possession of the freehold. This entry of him is called an abatement, and he himself is denominated an abator.(a) It is to be observed that this expression of abating, which is derived from the French, and signifies to quash, beat down, or destroy, is used by our law in three senses. The first, which seems to be the primitive sense, is that of abating or beating down a nuisance, of which we spoke in the beginning of this book;(b) and in a like sense it is used in statute Westm. 1, 3 Edw. I. c. 17, where mention is made of abating a castle or fortress; in which case it clearly signifies to pull it down and level it with the ground. The second signification of abatement is that of abating a writ or action, of which we shall say more hereafter; here it is taken figuratively, and signifies the overthrow or defeating of such writ by some fatal exception to it. The last species of abatement is that we have now before us; which is also a figurative expression, to denote that the rightful possession or freehold of the heir or devisee is overthrown by the rude intervention of a stranger.
This abatement of a freehold is somewhat similar to an immediate occupancy in a state of nature, which is effected by taking possession of the land the same instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice, considering man merely as an individual, is diametrically opposite to the law of society, and particularly the law of England; which, for the preservation of public peace, hath prohibited as far as possible all acquisitions by mere occupancy, and hath directed that lands on the death of the present possessor should immediately vest either in some person expressly named and appointed by the deceased as his devisee, or, on default of such appointment, in such of his next relations as the law hath selected and pointed out as his natural representative or heir. Every entry, therefore, of a mere stranger by way of intervention between the ancestor and heir or person next entitled, which keeps the heir or devisee out of possession, is one of the highest injuries to the right of real property.
*[*1692. The second species of injury by ouster, or amotion of possession from the freehold, is by intrusion; which is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seised of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion.(c) This entry and interposition of the stranger differ from an abatement in this; that an abatement is always to the prejudice of the heir or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. For example; if A. dies seised of lands in fee-simple, and before the entry of B. his heir, C. enters thereon, this is an abatement; but if A. be tenant for life, with remainder to B. in fee-simple, and after the death of A., C. enters, this is an intrusion. Also if A. be tenant for life on lease from B., or his ancestors, or be tenant by the curtesy, or in dower, the reversion being vested in B. and after the death of A., C. enters and keeps B. out of possession, this is likewise an intrusion. So that an intrusion is always immediately consequent upon the determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee-simple. And in either case the injury is equally great to him whose possession is defeated by this unlawful occupancy.
3. The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrongful putting out of him that is seised of the freehold.(d) The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack upon him who is in actual possession, and turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in deed. Disseisin may be effected either in corporeal inheritances, *[*170or incorporeal. Disseisin of things corporeal, as of houses, lands, &c., must be by entry and actual dispossession of the freehold;(e) as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or his servants out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession: for the subject itself is neither capable of actual bodily possession, or dispossession; but it depends on their respective natures, and various kinds; being in general nothing more than a disturbance of the owner in the means of coming at or enjoying them. With regard to freehold rent in particular, our antient lawbooks(f) mentioned five methods of working a disseisin thereof: 1. By enclosure; where the tenant so encloseth the house or land, that the lord cannot come to distrain thereon, or demand it: 2. By forestaller, or lying in wait; when the tenant besetteth the way with force and arms, or by menaces of bodily hurt affrights the lessor from coming: 3. By rescous; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the distress at such time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All or any of these circumstances amount to a disseisin of rent; that is, they wrongfully put the owner out of the only possession, of which the subject-matter is capable, namely, the receipt of it. But all these disseisins, of hereditaments, incorporeal, are only so at the election and choice of the party injured; if, for the sake of more easily trying the right, he is pleased to suppose himself disseised.(g) Otherwise, as there can be no actual dispossession, he cannot be compulsively disseised of any incorporeal hereditament.
And so, too, even in corporeal hereditaments, a man may frequently suppose himself to be disseised, when he is not so in fact, for the sake of entitling him self to the more easy and commodious remedy of an assize of novel disseisin, (which will be explained in the sequel of this chapter,) instead of being **171]driven to the more tedious process of a writ of entry.(h) The true injury of compulsive disseisin seems to be that of dispossessing the tenant, and substituting oneself to be the tenant of the lord in his stead; in order to which in the times of pure feodal tenure the consent or connivance of the lord, who upon every descent or alienation personally gave, and who therefore alone could change, the seisin or investiture, seems to have been considered as necessary. But when in process of time the feodal form of alienations wore off, and the lord was no longer the instrument of giving actual seisin, it is probable that the lord’s acceptance of rent or service, from him who had dispossessed another, might constitute a complete disseisin. Afterwards, no regard was had to the lord’s concurrence, but the dispossessor himself was considered as the sole disseisor: and this wrong was then allowed to be remedied by entry only, without any form of law, as against the disseisor himself; but required a legal process against his heir or alience. And when the remedy by assize was introduced under Henry II. to redress such disseisins as had been committed within a few years next preceding, the facility of that remedy induced others, who were wrongfully kept out of the freehold, to feign or allow themselves to be disseised, merely for the sake of the remedy.
These three species of injury, abatement, intrusion, and disseisin, are such wherein the entry of the tenant ab initio, as well as the continuance of his possession afterwards, is unlawful. But the two remaining species are where the entry of the tenant was at first lawful, but the wrong consists in the detaining of possession afterwards.
4. Such is, fourthly, the injury of discontinuance;2 which happens when he who hath an estate-tail maketh a larger estate of the land than by law he is entitled to do:(i) in which case the estate is good, so far as his power extends who made it, but no further. As if tenant in tail makes a feoffment in feesimple, or for the life of the feoffee, or in tail; all **172]which are beyond his power to make, for that by the common law extends no further than to male a lease for his own life; in such case the entry of the feoffee is lawful during the life of the feoffor; but if he retains the possession after the death of the feoffor, it is an injury, which is termed a discontinuance: the antient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discontinued.3 For, in this case, on the death of the alienors, neither the heir in tail, nor they in remainder or reversion expectant on the determination of the estate-tail, can enter on and possess the lands so alienated. Also, by the common law, the alienation of a husband who was seised in the right of his wife, worked a discontinuance of the wife’s estate, till the statute 32 Hen. VIII. c. 28 provided, that no act by the husband alone shall work a discontinuance of, or prejudice, the inheritance or freehold of the wife; but that, after his death, she or her heirs may enter on the lands in question. Formerly, also, if an alienation was made by a sole corporation, as a bishop or dean, without consent of the chapter, this was a discontinuance.(j) But this is now quite antiquated by the disabling statutes of 1 Eliz. c. 19 and 13 Eliz c. 10, which declare all such alienations absolutely void ab initio, and therefore at present no discontinuance can be thereby occasioned.4
5. The fifth and last species of injuries by ouster or privation of the freehold, where the entry of the present tenant or possessor was originally lawful, but his detainer is now become unlawful, is that by deforcement. This, in its most extensive sense, is nomen generalissimum; a much larger and more comprehensive expression than any of the former: it then signifying the holding of any lands or tenements to which another person hath a right.(k) So that this includes as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possession. But, as contradistinguished from the former, it is only such a detainer of the *[*173freehold from him that hath the right of property, but never had any possession under that right, as falls within none of the injuries which we have before explained. As in case where a lord has a seignory, and lands escheat to him propter defectum sanguinis, but the seisin of the lands is withheld from him; here the injury is not abatement, for the right vests not in the lord as heir or devisee; nor is it intrusion, for it vests not in him who hath the remainder or reversion; nor is it disseisin, for the lord was never seised; nor does it at all bear the nature of any species of discontinuance; but, being neither of these four, it is therefore a deforcement.(l) If a man marries a woman, and during the coverture is seised of lands, and alienes, and dies; is disseised, and dies; or dies in possession; and the alienee, disseisor, or heir enters on the tenements and doth not assign the widow her dower; this is also a deforcement to the widow, by withholding lands to which she hath a right.(m) In like manner, if a man lease lands to another for term of years, or for the life of a third person, and the term expires by surrender, efflux of time, or death of the cestuy que vie; and the lessee or any stranger, who was at the expiration of the term in possession, holds over, and refuses to deliver the possession to him in remainder or reversion, this is likewise a deforcement.(n) Deforcements may also arise upon the breach of a condition in law: as if a woman gives lands to a man by deed, to the intent that he marry her, and he will not when thereunto required, but continues to hold the lands: this is such a fraud on the man’s part, that the law will not allow it to devest the woman’s right of possession; though, his entry being lawful, it does devest the actual possession, and thereby becomes a deforcement.(o) Deforcements may also be grounded on the disability of the party deforced: as if an infant do make an alienation of his lands, and the alienee enters and keeps possession: now, as the alienation is voidable, this possession as against the infant (or, in case of his decease, as against his heir) is after avoidance wrongful, and therefore a deforcement.(p) The same happens **174]when one of non-sane memory alienes his lands or tenements, and the alienee enters and holds possession; this may also be a deforcement.(q) Another species of deforcement is, where two persons have the same title to land, and one of them enters and keeps possession against the other: as where the ancestor dies seised of an estate in fee-simple, which descends to two sisters as coparceners, and one of them enters before the other, and will not suffer her sister to enter and enjoy her moiety; this is also a deforcement.(r) Deforcement may also be grounded on the non-performance of a covenant real: as if a man, seised of lands, covenants to convey them to another, and neglects or refuses so to do, but continues possession against him; this possession, being wrongful, is a deforcement:(s) whence, in levying a fine of lands, the person against whom the fictitious action is brought upon a supposed breach of covenant is called the deforciant. And, lastly, by way of analogy, keeping a man by any means out of a freehold office is construed to be a deforcement; though, being an incorporeal hereditament, the deforciant has no corporeal possession. So that whatever injury (withholding the possession of a freehold) is not included under one of the four former heads, is comprised under this of deforcement.
The several species and degrees of injury by ouster being thus ascertained and defined, the next consideration is the remedy; which is, universally, the restitution or delivery of possession to the right owner; and, in some cases, damages also for the unjust amotion. The methods, whereby these remedies, or either of them, may be obtained, are various.
1. The first is that extrajudicial and summary one, which we slightly touched in the first chapter of the present book,(t) of entry by the legal owner, when another person, who hath no right, hath previously taken possession of lands or tenements. In this case the party entitled may make a formal, but peaceable, entry thereon, declaring that thereby he takes possession; which notorious act of ownership is equivalent to a feodal investiture by the lord;(u) or he may enter on any **175]part of it in the same county, declaring it to be in the name of the whole;(v) but if it lies in different counties he must make different entries; for the notoriety of such entry or claim to the pares or freeholders of Westmoreland is not any notoriety to the pares or freeholders of Sussex. Also if there be two disseisors, the party disseised must make his entry on both; or if one disseisor has conveyed the lands with livery to two distinct feoffees, entry must be made on both:(w) for as their seisin is distinct, so also must be the act which devests that seisin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim as near to the estate as he can, with the like forms and solemnities; which claim is in force for only a year and a day.(x) And this claim, if it be repeated once in the space of every year and a day, (which is called continual claim,) has the same effect with, and in all respects amounts to, a legal entry.(y) Such an entry gives a man seisin,(z) or puts into immediate possession him that hath right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himself by either descent or purchase.5
This remedy by entry takes place in three only of the five species of ouster, viz., abatement, intrusion, and disseisin;(a) for as in these the original entry of the wrong-doer was unlawful, they may therefore be remedied by the mere entry of him who hath right. But, upon a discontinuance or deforcement, the owner of the estate cannot enter, but is driven to his action; for herein, the original entry being lawful, and thereby an apparent right of possession being gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant. Yet a man may enter(b) on his tenant by sufferance: for such tenant hath no freehold, but only a bare possession; which may be defeated, like a tenancy at will, by the mere entry of the owner. But if the owner thinks it more expedient to suppose or admit(c) such tenant to have *[*176gained a tortious freehold, he is then remediable by writ of entry, ad terminum qui prœteriit.
On the other hand, in case of abatement, intrusion, or disseisin, where entries are generally lawful, this right of entry may be tolled, that is, taken away by descent.6 Descents which take away entries(d) are when any one, seised by any means whatsoever of the inheritance of a corporeal hereditament, dies;7 whereby the same descends to his heir:8 in this case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the freehold is taken away, and he cannot recover possession against the heir by this summary method, but is driven to his action to gain a legal seisin of the estate. And this first, because the heir comes to the estate by act of law, and not by his own act; the law therefore protects his title, and will not suffer his possession to be devested till the claimant hath proved a better right. Secondly, because the heir may not suddenly know the true state of his title; and therefore the law, which is ever indulgent to heirs, takes away the entry of such claimant as neglected to enter on the ancestor, who was well able to defend his title; and leaves the claimant only the remedy of an action against the heir.(e) Thirdly, this was admirably adapted to the military spirit of the feodal tenures, and tended to make the feudatory bold in war, since his children could not by any mere entry of another be dispossessed of the lands whereof he died seised. And, lastly, it is agreeable to the dictates of reason and the general principles of law.
For, in every complete title(f) to lands, there are two things necessary: the possession or seisin, and the right of property therein;(g) or, as it is expressed in Fleta, juris et seisinæ conjunctio(h) Now, if the possession be severed from the property, if A. has the jus proprietatis, and B. by some unlawful means has gained possession of the lands, this is an injury to A., for which the law gives a remedy by putting **177]him in possession, but does it by different means according to the circumstances of the case. Thus, as B., who was himself the wrong-doer, and hath obtained the possession by either fraud or force, hath only a bare or naked possession, without any shadow of right, A., therefore, who hath both the right of property and the right of possession, may put an end to his title at once by the summary method of entry. But if B. the wrong-doer dies seised of the lands, then B.’s heir advances one step further towards a good title; he hath not only a bare possession, but also an apparent jus possessionis, or right of possession. For the law presumes that the possession which is transmitted from the ancestor to the heir is a rightful possession until the contrary be shown; and therefore the mere entry of A. is not allowed to evict the heir of B.; but A. is driven to his action at law to remove the possession of the heir, though his entry alone would have dispossessed the ancestor.9
So that, in general, it appears that no man can recover possession by mere entry on lands which another hath by descent. Yet this rule hath some exceptions(i) wherein those reasons cease upon which the general doctrine is grounded; especially if the claimant were under any legal disabilities during the life of the ancestor, either of infancy, coverture, imprisonment, insanity, or being out of the realm: in all which cases there is no neglect or laches in the claimant, and therefore no descent shall bar or take away his entry.(k) And this title of taking away entries by descent is still further narrowed by the statute 32 Hen. VIII. c. 33, which enacts that, if any person disseises or turns another out of possession, no descent to the heir of the disseisor shall take away the entry of him that has a right to the land, unless the disseisor had peaceable possession five years next after the disseisin. But the statute extendeth not to any feoffee or donee of the disseisor, mediate or immediate;(l) because such a one by the genuine feodal constitutions always came into the tenure solemnly **178]and with the lord’s concurrence, by actual delivery of seisin, that is, open and public investiture. On the other hand, it is enacted by the statute of limitations, 21 Jac. I. c. 16, that no entry shall be made by any man upon lands, unless within twenty years after his right shall accrue.10 And by statute 4 & 5 Anne, c. 16, no entry shall be of force to satisfy the said statute of limitations, or to avoid a fine levied of lands, unless an action be thereupon commenced within one year after, and prosecuted with effect.11
Upon an ouster by the discontinuance of tenant in tail, we have said that no remedy by mere entry is allowed; but that, when tenant in tail alienes the lands entailed, this takes away the entry of the issue in tail, and drives him to his action at law to recover the possession.(m) For, as in the former cases, the law will not suppose, without proof, that the ancestor of him in possession acquired the estate by wrong, and therefore, after five years’ peaceable possession, and a descent cast, will not suffer the possession of the heir to be disturbed by mere entry without action; so here the law will not suppose the discontinuor to have aliened the estate without power so to do, and therefore leaves the heir in tail to his action at law, and permits not his entry to be lawful. Besides, the alienee, who came into possession by a lawful conveyance, which was at least good for the life of the alienor, hath not only a bare possession, but also an apparent right of possession; which is not allowed to be devested by the mere entry of the claimant, but continues in force till a better right be shown, and recognised by a legal determination. And something also perhaps, in framing this rule of law, may be allowed to the inclination of the courts of justice, to go as far as they could in making estates-tail alienable, by declaring such alienations to be voidable only, and not absolutely void.
In case of deforcement also, where the deforciant had originally a lawful possession of the land, but now detains it wrongfully, he still continues to have the presumptive prima *[*179facie evidence of right; that is, possession lawfully gained. Which possession shall not be overturned by the mere entry of another; but only by the demandant’s showing a better right in a course of law.
This remedy by entry must be pursued, according to statute 5 Ric. II. st. 1, c. 8, in a peaceable and easy manner; and not with force or strong hand. For, if one turns or keeps another out of possession forcibly, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate restitution; which puts the antient possessor in statu quo: the criminal injury, or public wrong, by breach of the king’s peace, is punished by fine to the king. For by the statute 8 Hen. VI. c. 9, upon complaint made to any justice of the peace, of a forcible entry, with strong hand, on lands or tenements; or a forcible detainer after a peaceable entry; he shall try the truth of the complaint by jury, and, upon force found, shall restore the possession to the party so put out: and in such case, or if any alienation be made to defraud the possessor of his right, (which is likewise declared to be absolutely void,) the offender shall forfeit, for the force found, treble damages to the party grieved, and make fine and ransom to the king. But this does not extend to such as endeavour to keep possession manu forti, after three years’ peaceable enjoyment of either themselves, their ancestors, or those under whom they claim; by a subsequent clause of the same statute, enforced by statute 31 Eliz. c. 11.12
II. Thus far of remedies, when tenant or occupier of the land hath gained only a mere possession, and no apparent shadow of right. Next follow another class, which are in use where the title of the tenant or occupier is advanced one step nearer to perfection; so that he hath in him not only a bare possession, which may be destroyed by a bare entry, but also an apparent right of possession, which cannot be removed but by orderly course of law; in the process of which it must be shown, that though he hath at present possession, and therefore hath **180]the presumptive right, yet there is a right of possession, superior to his, residing in him who brings the action.
These remedies are either by a writ of entry, or an assize; which are actions merely possessory; serving only to regain that possession, whereof the demandant (that is, he who sues for the land) or his ancestors have been unjustly deprived by the tenant or possessor of the freehold, or those under whom he claims. They decide nothing with respect to the right of property; only restoring the demandant to that state or situation, in which he was (or by law ought to have been) before the dispossession committed. But this without any prejudice to the right of ownership: for, if the dispossessor has any legal claim, he may afterwards exert it, notwithstanding a recovery against him in these possessory actions. Only the law will not suffer him to be his own judge, and either take or maintain possession of the lands, until he hath recovered them by legal means:(n) rather presuming the right to have accompanied the antient seisin, than to reside in one who had no such evidence in his favour.
1. The first of these possessory remedies is by writ of entry; which is that which disproves the title of the tenant or possessor, by showing the unlawful means by which he entered or continues possession.(o) The writ is directed to the sheriff, requiring him to “command the tenant of the land that he render (in Latin, præcipe quod reddat) to the demandant the land in question, which he claims to be his right and inheritance; and into which, as he saith, the said tenant had not entry but by (or after) a disseisin, intrusion, or the like, made to the said demandant, within the time limited by law for such actions; or that upon refusal he do appear in court on such a day, to show wherefore he hath not done it.”(p) This is the original process, the præcipe upon which all the rest of the suit is grounded: wherein it appears, that the tenant is required, either to deliver *[*181seisin of the lands, or to show cause why he will not. This cause may be either a denial of the fact of having entered by or under such means as are suggested, or a justification of his entry by reason of title in himself or in those under whom he makes claim: whereupon the possession of the land is awarded to him who produces the clearest right to possess it.
In our antient books we find frequent mention of the degrees within which writs of entry are brought. If they be brought against the party himself that did the wrong, then they only charge the tenant himself with the injury; “non habuit ingressum nisi per intrusionem quam ipse fecit.” But if the intruder, disseisor, or the like has made any alienation of the land to a third person, or it has descended to his heir, that circumstance must be alleged in the writ, for the action must always be brought against the tenant of the land; and the defect of his possessory title, whether arising from his own wrong or that of those under whom he claims, must be set forth. One such alienation or descent makes the first(q) degree, which is called the per, because then the form of a writ of entry is this; that the tenant had not entry but by the original wrong-doer, who alienated the land, or from whom it descended to him: “non habuit ingressum, nisi per Gulielmum, qui se in illud intrusit, et illud tenenti dimisit.”(r) A second alienation or descent makes another degree, called the per and cui; because the form of a writ of entry, in that case, is, that the tenant had not entry but by or under a prior alienee, to whom the intruder demised it; “non habuit ingressum nisi per Ricardum, cui Gulielmus illud dimisit, qui se in illud intrusit.”(s) These degrees thus state the original wrong, and the title of the tenant who claims under such wrong. If more than two degrees (that is, two alienations or descents) were past, there lay no writ of entry at the common law. For as it was provided, for the *[*182quietness of men’s inheritances, that no one, even though he had the true right of possession, should enter upon him who had the apparent right by descent or otherwise, but he was driven to his writ of entry to gain possession; so, after more than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this possessory action; but was driven to his writ of right, a long and final remedy, to punish his neglect in not sooner putting in his claim, while the degree subsisted, and for the ending of suits and quieting of all controversies.(t) But by the statute of Marlberge, 52 Hen. III. c. 30, it was provided, that when the number of alienations or descents exceeded the usual degrees, a new writ should be allowed without any mention of degrees at all. And accordingly a new writ has been framed, called a writ of entry in the post, which only alleges the injury of the wrong-doer, without deducing all the intermediate title from him to the tenant: stating it in this manner; that the tenant had not entry unless after, or subsequent to, the ouster or injury done by the original dispossessor; “non habuit ingressum nisi post intrusionem quam Gulielmus in illud fecit;” and rightly concluding, that if the original title was wrongful, all claims derived from thence must participate of the same wrong. Upon the latter of these writs it is (the writ of entry sur disseisin in the post) that the form of our common recoveries of landed estates(u) is usually grounded; which, we may remember, were observed in the preceding volume(v) to be fictitious actions brought against the tenant of the freehold, (usually called the tenant to the præcipe, or writ of entry,) in which by collusion the demandant recovers the land.
This remedial instrument, or writ of entry, is applicable to all the cases of ouster before mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. Such is that of deforcement of dower, by not assigning any dower to the widow within the time limited by *[*183law; for which she has her remedy by writ of dower, unde nihil habet.(w) But if she be deforced of part only of her dower, she cannot then say that nihil habet; and therefore she may have recourse to another action, by writ of right of dower; which is a more general remedy, extending either to part or the whole; and is (with regard to her claim) of the same nature as the grand writ of right, whereof we shall presently speak, is with regard to claims in fee-simple.(x) On the other hand, if the heir (being within age) or his guardian assign her more than she ought to have, they may be remedied by a writ of admeasurement of dower.(y) But in general the writ of entry is the universal remedy to recover possession, when wrongfully withheld from the owner. It were therefore endless to recount all the several divisions of writs of entry, which the different circumstances of the respective demandants may require, and which are furnished by the laws of England:(z) being plainly and clearly chalked out in that most antient and highly venerable collection of legal forms, the registrum omnium brevium, or register of such writs as are suable out of the king’s court, upon which Fitzherbert’s natura brevium is a comment; and in which every man who **184]is injured will be sure to find a method of relief, exactly adapted to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance. So that the wise and equitable provision of the statute Westm. 2, 13 Edw. I. c. 24, for framing new writs when wanted, is almost rendered useless by the very great perfection of the antient forms. And indeed I know not whether it is a greater credit to our laws, to have such a provision contained in them, or not to have occasion, or at least very rarely, to use it.
In the times of our Saxon ancestors the right of possession seems only to have been recoverable by writ of entry,(a) which was then usually brought in the county-court. And it is to be observed that the proceedings in these actions were not then so tedious when the courts were held and process issued from and was returnable therein at the end of every three weeks, as they became after the conquest, when all causes were drawn into the king’s courts, and process issued only from term to term; which was found exceedingly dilatory, being at least four times as slow as the other. And hence a new remedy was invented in many cases, to do justice to the people and to determine the possession in the proper counties, and yet by the king’s judges. This was the remedy by assize, which is called, by statute Westm. 2, 13 Edw. I. c. 24, festinum remedium, in comparison with that by a writ of entry; it not admitting of many dilatory pleas and proceedings to which other real actions are subject.(b)13
2. The writ of assize is said to have been invented by Glanvil, chief justice to Henry the Second;(c) and if so, it seems to owe its introduction to the parliament held at Northampton in the twenty-second year of that prince’s reign; when justices in eyre were appointed to go round the kingdom in order to take these assizes: and the assizes themselves **185](particularly those of mort d’ancestor and novel disseisin) were clearly pointed out and described.(d) As a writ of entry is a real action which disproves the title of the tenant by showing the unlawful commencement of his possession, so an assize is a real action which proves the title of the demandant merely by showing his or his ancestor’s possession:(e) and these two remedies are in all other respects so totally alike that a judgment or recovery in one is a bar against the other; so that when a man’s possession is once established by either of these possessory actions it can never be disturbed by the same antagonist in any other of them. The word assize is derived by Sir Edward Coke(f) from the Latin assideo, to sit together; and it signifies, originally, the jury who try the cause and sit together for that purpose. By a figure it is now made to signify the court or jurisdiction which summons this jury together by a commission of assize, or ad assisas capiendas; and hence the judicial assemblies held by the king’s commission in every county, as well to take these writs of assize, as to try causes at nisi prius, are termed in common speech the assizes. By another somewhat similar figure the name of assize is also applied to this action, for recovering possession of lands; for the reason, saith Littleton,(g) why such writs at the beginning were called assize, was, for that in these writs the sheriff is ordered to summon a jury or assize; which is not expressed in any other original writ.(h)
This remedy, by writ of assize, is only applicable to two species of injury by ouster, viz., abatement, and a recent or novel disseisin. If the abatement happened upon the death of the demandant’s father or mother, brother or sister, uncle or aunt, nephew or niece, the remedy is by an assize of mort d’ancestor, or death of one’s ancestor. This *[*186writ directs the sheriff to summon a jury or assize, who shall view the land in question, and recognise whether such ancestor was seised thereof on the day of his death, and whether the demandant be the next heir:(i) soon after which the judges come down by the king’s commission to take the recognition of assize: when, if these points are found in the affirmative, the law immediately transfers the possession from the tenant to the demandant. If the abatement happened on the death of one’s grandfather or grandmother, then an assise of mort d’ancestor no longer lies, but a writ of ayle or de avo: if on the death of the great-grandfather or great-grandmother, then a writ of besayle or de proavo: but if it mounts one degree higher, to the tresayle, or grandfather’s grandfather, or if the abatement happened upon the death of any collateral relation other than those before mentioned, the writ is called a writ of cosinage or de consanguineo.(k) And the same points shall be inquired of in all these actions ancestrel as in an assize of mort d’ancestor; they being of the very same nature:(l) though they differ in this point of form, that these ancestrel writs (like all other writs of præcipe) expressly assert a title in the demandant, (viz., the seisin of the ancestor at his death, and his own right of inheritance,) the assize asserts nothing directly, but only prays an inquiry whether those points be so.(m) There is also another ancestrel writ, denominated a nuper obiit, to establish an equal division of the land in question, where, on the death of an ancestor who has several heirs, one enters and holds the others out of possession.(n) But a man is not allowed to have any of these actions ancestrel for an abatement consequent on the death of any collateral relation beyond the fourth degree;(o) though in the lineal ascent he may proceed ad infinitum.(p) For there must be some boundary, else the privilege would be universal; which is absurd: and therefore the law pays no regard to the possession of a collateral ancestor who was no nearer than the fifth degree.
*[*187It was always held to be a law(q) that where lands were devisable in a man’s last will by the custom of the place, there an assize of mort d’ancestor did not lie. For where lands were so devisable, the right of possession could never be determined by a process which inquired only of these two points, the seisin of the ancestor and the heirship of the demandant. And hence it may be reasonable to conclude, that when the statute of wills, 32 Hen. VIII. c. 1, made all socage-lands devisable, an assize of mort d’ancestor no longer could be brought of lands held in socage;(r) and that now, since the statute 12 Car. II. c. 24, (which converts all tenures, a few only excepted, into free and common socage,) no assize of mort d’ancestor can be brought of any lands in the kingdom, but that, in case of abatements, recourse must be properly had to the writs of entry.14
An assize of novel (or recent) disseisin is an action of the same nature with the assize of mort d’ancestor before mentioned, in that herein the demandant’s possession must be shown. But it differs considerably in other points; particularly in that it recites a complaint by the demandant of the disseisin committed, in terms of direct averment; whereupon the sheriff is commanded to reseize the land and all the chattels thereon, and keep the same in his custody till the arrival of the justices of assize, (which in fact hath been usually omitted;)(s) and in the mean time to summon a jury to view the premises, and make recognition of the assize before the justices.(t) At which time the tenant may plead either the general issues nul tort, nul disseisin, or any special plea. And if, upon the general issue, the recognitors find an actual seisin in the demandant, and his subsequent disseisin by the present tenant, he shall have judgment to recover his seisin, and damages for the injury sustained: being the only case in which damages were recoverable in any possessory actions at the common law;(u) the tenant being in all other cases allowed to retain the intermediate profits of the **188]land, to enable him to perform the feodal service. But costs and damages were annexed to many other possessory actions by the statutes of Marlberge, 52 Hen. III. c. 16, and Glocester, 6 Edw. I. c. 1. And to prevent frequent and vexatious disseisins, it is enacted by the statute of Merton, 20 Hen. III. c. 3, that if a person disseised recover seisin of the land again by assize of novel disseisin, and be again disseised of the same tenements by the same disseisor, he shall have a writ of re-disseisin; and if he recover therein, the re-disseisor shall be imprisoned; and by the statute of Marlberge, 52 Hen. III. c. 8, shall also pay a fine to the king: to which the statute Westm. 2, 13 Edw. I. c. 26 hath superadded double damages to the party aggrieved. In like manner, by the same statute of Merton, when any lands or tenements are recovered by assize of mort d’ancestor, or other injury, or any judgment of the court, if the party be afterwards disseised by the same person against whom judgment was obtained, he shall have a writ of post-disseisin against him; which subjects the post-disseisor to the same penalties as a re-disseisor. The reason of all which, as given by Sir Edward Coke,(w) is because such proceeding is a contempt of the king’s courts, and in despite of the law; or, as Bracton more fully expresses it,(x) “talis qui it a convictus fuerit, dupliciter delinquit contra regem: quia facit disseisinam et roberiam contra pacem suam; et etiam ausu temerario irrita facit ea, quæ in curia domini regis rite acta sunt: et propter duplex delictum merito sustinere debet pœnam duplicatam.”
In all these possessory actions there is a time of limitation settled, beyond which no man shall avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary. For, if he be negligent for a long and unreasonable time, the law refuses afterwards to lend him any assistance, to recover the possession merely; both to punish his neglect, (nam leges vigilantibus, non dormientibus, subveniunt,) and also because it is presumed that the supposed wrong-doer has in such a length of time procured a legal title, otherwise *[*189he would sooner have been sued. This time of limitation by the statute of Merton, 20 Hen. III. c. 8, and Westm. 1, 3 Edw. I. c. 39, was successively dated from particular eras, viz., from the return of king John from Ireland, and from the coronation, &c. of king Henry the Third. But this date of limitation continued so long unaltered that it became indeed no limitation at all; it being above three hundred years from Henry the Third’s coronation to the year 1540, when the present statute of limitations(y) was made. This, instead of limiting actions from the date of a particular event, as before, which in process of years grew absurd, took another and more direct course, which might endure forever: by limiting a certain period, as fifty years for lands, and the like period(z) for customary and prescriptive rents, suits, and services, (for there is no time of limitation upon rents created by deed, or reserved on a particular estate,)(a) and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seisin, or dispossession of his ancestors, beyond such certain period. But this does not extend to services which by common possibility may not happen to become due more than once in the lord’s or tenant’s life; as fealty, and the like.(b) And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseisin complained of; for if it be an older date, it can with no propriety be called a fresh, recent, or novel disseisin; which name Sir Edward Coke informs us was originally given to this proceeding, because the disseisin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone.(c) And we may observe,(d) that the limitation, prescribed by Henry the Second at the first institution of the assize of novel disseisin, was from his own return into England, after the peace made between him and the young king his son; which was but the year before.15
*[*190What has been here observed may throw some light on the doctrine of remitter, which we spoke of in the second chapter of this book; and which we may remember was where one who hath right to lands, but is out of possession, hath afterwards the freehold cast upon him by some subsequent defective title, and enters by virtue of that title. In this case the law remits him to his antient and more certain right, and by an equitable fiction supposes him to have gained possession in consequence and by virtue thereof: and this, because he cannot possibly obtain judgment at law to be restored to his prior right, since he is himself the tenant of the land, and therefore hath nobody against whom to bring his action. This determination of the law might seem superfluous to a hasty observer; who perhaps would imagine, that since the tenant hath now both the right and also the possession, it little signifies by what means such possession shall be said to be gained. But the wisdom of our antient law determined nothing in vain. As the tenant’s possession was gained by a defective title, it was liable to be overturned by showing that defect in a writ of entry; and then he must have been driven to his writ of right, to recover his just inheritance: which would have been doubly hard, because during the time he was himself tenant he could not establish his prior title by any possessory actions. The law therefore remits him to his prior title, or puts him in the same condition as if he had recovered the land by writ of entry. Without the remitter, he would have had jus, et seisinam separate; a good right, but a bad possession: now, by the remitter, he hath the most perfect of all titles, juris et seisinæ conjunctionem.
III. By these several possessory remedies the right of possession may be restored to him that is unjustly deprived thereof. But the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right of property, which may still subsist in another man. For, as **191]one man may have the possession, and another the right of possession, which is recovered by these possessory actions; so one man may have the right of possession, and so not be liable to eviction by any possessory action, and another may have the right of property, which cannot be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as are in the nature of a writ of right.
This happens principally in four cases: 1. Upon discontinuance by the alienation of tenant in tail: whereby he who had the right of possession hath transferred it to the alienee; and therefore his issue, or those in remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant hath so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action: for such judgment, if obtained by him who hath not the true ownership, is held to be a species of deforcement; which, however, binds the right of possession, and suffers it not to be ever again disputed, unless the right of property be also proved. 4. In case the demandant, who claims the right, is barred from these possessory actions by length of time and the statute of limitations before mentioned: for an undisturbed possession for fifty years ought not to be devested by any thing but a very clear proof of the absolute right of property. In these four cases the law applies the remedial instrument of either the writ of right itself, or such other writs as are said to be of the same nature.
1. And first, upon an alienation by tenant in tail, whereby the estate-tail is discontinued, and the remainder or reversion is by failure of the particular estate displaced, and turned into a mere right, the remedy is by action of formedon, (secundum formam doni,) which is in the nature of a writ of right,(e) and is the highest action that tenant in tail can have.(f) For he cannot have an absolute writ of right, which is confined only to such as claim in fee-simple: and for that reason this writ of formedon was granted him by the statute de donis or **192]Westm. 2, 13 Edw. I. c. 1, which is therefore emphatically called his writ of right.(g) This writ is distinguished into three species: a formedon in the descender, in the remainder, and in the reverter. A writ of formedon in the descender lieth, where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is disseised of them, and dies; in this case the heir in tail shall have this writ of formedon in the descender, to recover these lands so given in tail against him who is then the actual tenant of the freehold.(h) In which action the demandant is bound to state the manner and form of the gift in tail, and to prove himself heir secundum formam doni. A formedon in the remainder lieth, where a man giveth lands to another for life or in tail, with remainder to a third person in tail or in fee, and he who hath the particular estate dieth without issue inheritable, and a stranger intrudes upon him in remainder and keeps him out of possession.(i) In this case the remainder-man shall have his writ of formedon in the remainder, wherein the whole form of the gift is stated, and the happening of the event upon which the remainder depended. This writ is not given in express words by the statute de donis; but is founded upon the equity of the statute, and upon this maxim in law, that if any one hath a right to the land, he ought also to have an action to recover it. A formedon in the reverter lieth, where there is a gift in tail, and afterwards by the death of the donee or his heirs without issue of his body the reversion falls in upon the donor, his heirs, or assigns: in such case the reversioner shall have his writ to recover the lands, wherein he shall suggest the gift, his own title to the reversion minutely derived from the donor, and the failure of issue upon which his reversion takes place.(k) This lay at common law, before the statute de donis, if the donee aliened before he had performed the condition of the gift, by having issue, and afterwards died without any.(l) The time of limitation in a formedon, by statute 21 Jac. I. c. 16, is twenty years;16 within *[*193which space of time after his title accrues, the demandant must bring his action, or else he is forever barred.17
2. In the second case; if the owners of a particular estate, as for life, in dower, by the curtesy, or in fee-tail, are barred of the right of possession by a recovery had against them, through their default or non-appearance in a possessory action, they were absolutely without any remedy at the common law: as a writ of right does not lie for any but such as claim to be tenants of the fee-simple. Therefore the statute Westm. 2, 13 Edw. I. c. 4 gives a new writ for such persons, after their lands have been so recovered against them by default, called a quod ei deforceat; which, though not strictly a writ of right, so far partakes of the nature of one, as that it will restore the right to him who has been thus unwarily deforced by his own default.(m) But in case the recovery were not had by his own default, but upon defence in the inferior possessory action, this still remains final with regard to these particular estates, as at the common law: and hence it is, that a common recovery (on a writ of entry in the post) had, not by default of the tenant himself, but (after his defence made and voucher of a third person to warranty) by default of such vouchee, is now the usual bar to cut off an estate-tail.(n)
3, 4. Thirdly, in case the right of possession be barred by a recovery upon the merits in a possessory action, or lastly by the statute of limitations, a claimant in fee-simple may have a mere writ of right; which is in its nature the highest writ in the law,(o) and lieth only of an estate in fee-simple, and not for him who hath a less estate. This writ lies concurrently with all other real actions, in which an estate of fee-simple may be recovered: and it also lies after them, being as it were an appeal to the mere right, when judgment hath been had as to the possession in an inferior possessory *[*194action.(p) But though a writ of right may be brought, where the demandant is entitled to the possession, yet it rarely is advisable to be brought in such cases; as a more expeditious and easy remedy is had, without meddling with the property, by proving the demandant’s own, or his ancestor’s, possession, and their illegal ouster, in one of the possessory actions. But in case the right of possession be lost by length of time, or by judgment against the true owner in one of these inferior suits, there is no other choice: this is then the only remedy that can be had; and it is of so forcible a nature, that it overcomes all obstacles, and clears all objections that may have arisen to cloud and obscure the title. And, after issue once joined in a writ of right, the judgment is absolutely final; so that a recovery had in this action may be pleaded in bar of any other claim or demand.(q)
The pure, proper, or mere writ of right lies only, we have said, to recover lands in fee-simple, unjustly withheld from the true proprietor. But there are also some other writs which are said to be in the nature of a writ of right, be cause their process and proceedings do mostly (though not entirely) agree with the writ of right: but in some of them the fee-simple is not demanded; and in others not land, but some incorporeal hereditament. Some of these have been already mentioned, as the writ of right of dower, of formedon, &c., and the others will hereafter be taken notice of under their proper divisions. Nor is the mere writ of right alone, or always, applicable to every case of a claim of lands in fee-simple: for if the lord’s tenant in fee-simple dies without heir, whereby an escheat accrues, the lord shall have a writ of escheat,(r) which is in the nature of a writ of right.(s) And if one of two or more coparceners deforces the other, by usurping the sole possession, the party aggrieved shall have a writ of right, de rationabili parte,(t) which may be grounded on the **195]seisin of the ancestor at any time during his life; whereas in a nuper obiit (which is a possessory remedy)(u) he must be seised at the time of his death. But, waiving these and other minute distinctions, let us now return to the general writ of right.
This writ ought to be first brought in the court-baron(w) of the lord, of whom the lands are holden; and then it is open or patent: but if he holds no court, or hath waived his right, remisit curiam suam, it may be brought in the king’s courts by writ of præcipe originally;(x) and then it is a writ of right close;(y) being directed to the sheriff and not the lord.(z) Also, when one of the king’s immediate tenants in capite is deforced, his writ of right is called a writ of præcipe in capite, (the improper use of which, as well as of the former præcipe quia dominus remisit curiam, so as to oust the lord of his jurisdiction, is restrained by magna carta,)(a) and, being directed to the sheriff and originally returnable in the king’s courts, is also a writ of right close.(b) There is likewise a little writ of right close, secundum consuetudinem manerii, which lies for the king’s tenants in antient demesne,(c) and others of a similar nature,(d) to try the right of their lands and tenements in the court of the lord exclusively.(e) But the writ of right patent itself may also at any time be removed into the county-court, by writ of tolt,(f) and from thence into the king’s courts by writ of pone(g) or recordari facias, at the suggestion of either party that there is a delay or defect of justice.(h)
In the progress of this action,(i) the demandant must allege some seisin of the lands and tenements in himself,18 or else in some person under whom he claims, and then derive the right **196]from the person so seised to himself; to which the tenant may answer by denying the demandant’s right, and averring that he has more right to hold the lands than the demandant has to demand them: and this right of the tenant being shown, it then puts the demandant upon the proof of his title: in which, if he fails, or if the tenant hath shown a better, the demandant and his heirs are personally barred of their claim; but if he can make it appear that his right is superior to the tenant’s, be shall recover the land against the tenant and his heirs forever. But even this writ of right, however superior to any other, cannot be sued out at any distance of time. For by the antient law no seisin could be alleged by the demandant, but from the time of Henry the First;(k) by the statute of Merton, 20 Hen. III. c. 8, from the time of Henry the Second; by the statute of Westm. 1, 3 Edward I. c. 39, from the time of Richard the First; and now, by statute 32 Henry VIII. c. 2, seisin in a writ of right shall be within sixty years. So that the possession of lands in fee-simple uninterruptedly, for threescore years, is at present a sufficient title against all the world; and cannot be impeached by any dormant claim whatsoever.19
I have now gone through the several species of injury by ouster and dispossession of the freehold, with the remedies applicable to each. In considering which I have been unavoidably led to touch upon such obsolete and abstruse learning, as it lies intermixed with, and alone can explain the reason of, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is impossible to form any clear idea of the meaning and connection of those disjointed parts which still form a considerable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any considerable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, so *[*197absolutely antiquated as to be out of force, though the whole is certainly out of use: there being but a very few instances for more than a century past of prosecuting any real action for land by writ of entry, assize, formedon, writ of right, or otherwise. The forms are indeed preserved in the practice of common recoveries; but they are forms and nothing else; for which the very clerks that pass them are seldom capable to assign the reason. But the title of lands is now usually tried in actions of ejectment or trespass; of which in the following chapters.20
[1 ] “The different degrees of title which a person dispossessing another of his lands acquires in them in the eye of the law, (independently of any anterior right,) according to the length of time and other circumstances which intervene from the time such dispossession is made, form different degrees of presumption in favour of the title of the dispossessor; and in proportion as that presumption increases, his title is strengthened. The modes by which the possession may be recovered vary; and more, or rather different, proof is required from the person dispossessed to establish his title to recover. Thus, if A. is disseised by B., while the possession continues in B. it is a mere naked possession, unsupported by any right, and A. may restore his own possession, and put a total end to the possession of B., by an entry on the lands, without any previous action. But if B. dies, the possession descends on the heir by act of law. In this case the heir comes to the land by a lawful title, and acquires in the eye of the law an apparent right of possession, which is so far good against the person disseised that he has lost his right to recover the possession by entry, and can only recover it by an action at law. The actions used in these cases are called possessory actions, and the original writs by which the proceedings upon them are instituted are called writs of entry. But if A. permits the possession to be withheld from him beyond a certain period of time without claiming it, or suffers judgment in a possessory action to be given against him, by default or upon the merits,—in all these cases 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. These last actions are called droiturel actions, in contradistinction to possessory actions. They are the ultimate resort of the person disseised, so that if he fails to bring his writ of right within the time limited for the bringing of such writ, he is remediless, and the title of the dispossessor is complete. The original writs by which droiturel actions are instituted are called writs of right. The dilatoriness and niceties in these processes introduced the writ of assize. The invention of this proceeding is attributed to Glanville, chief justice to Henry II. See Mr. Reeves’s History of the English Law, part 1, ch. 3. It was found so convenient a remedy that persons, to avail themselves of it, frequently supposed or admitted themselves to be disseised by acts which did not, in strictness, amount to a disseisin. This disseisin, being such only by the will of the party, is called a disseisin by election, in opposition to an actual disseisin: it is only a disseisin as between the disseisor and disseisee, the disseisee still continuing the freeholder as to all persons but the disseisor. The old books, particularly the reports of assize, when they mention disseisins, generally relate to those cases where the owner admits himself disseised. See 1 Burr. 111; and see Bract. 1, b. 4, cap. 3. As the processes upon writs of entry were superseded by the assize, so the assize and all other real actions have been since superseded by the modern process of ejectment. This was introduced as a mode of trying titles to lands in the reign of Henry VII. From the ease and expedition with which the proceedings in it are conducted, it is now become the general remedy in these cases. Booth, who wrote about the end of the last century, mentions real actions as then worn out of use. It is rather singular that this should be the fact, as many cases must frequently have occurred in which a writ of ejectment was not a sufficient remedy. Within these few years past, some attempts have been made to revive real actions; and the most remarkable of these are the case of Tissen vs. Clarke, reported in 3 Wils. 419, 541, and that of Carlos & Shuttleworth vs. Lord Dormer. The writ of summons in this last case is dated the 1st day of December, 1775. The summons to the four knights to proceed to the election of the grand assize is dated the 22d day of May, 1780. To this summons the sheriff made his return; and there the matter rested. The last instance in which a real action was used is the case of Sidney vs. Perry. All these were actions on the right. The part of Sir William Blackstone’s Commentary which treats upon real actions is not the least valuable part of that most excellent work.” See Co. Litt. 239, a., note 1. In M. T. 1825, a writ of right stood for trial in the court of Common Pleas; but, the four knights summoned for the purpose not appearing, the case was adjourned to the next term.—Chitty.
[(a) ] Finch, L. 195.
[(b) ] Page 5.
[(c) ] Co. Litt. 277. F. N. B. 203, 204.
[(d) ] Co. Litt. 277.
[(e) ] Ibid. 181.
[(f) ] Finch, L. 165, 166. Litt. 237, &c.
[(g) ] Litt. 588, 589.
[(h) ]Hengh. parv. c. 7. 4 Burr. 110.
[2 ] See, in general, Adams on Ejectment, 35 to 41. Com. Dig. Discontinuance. Bac. Abr. Discontinuance. Vin. Abr. Discontinuance. Cru. Dig. Index, Discontinuance. Co. Litt. 325. 2 Saund. Index, tit. Discontinuance. The term “discontinuance” is used to distinguish those cases where the party whose freehold is ousted can restore it by action only from those in which he may restore it by entry. Now, things which lie in grant cannot either be devested or restored by entry. The owner therefore of any thing which lies in grant has in no stage, and under no circumstances, any other remedy but by action. The books often mention both disseisins and discontinuances of incorporeal hereditaments; but these disseisins and discontinuances are only at the election of the party, for the purpose of availing himself of the remedy by action. Co. Litt, 330, b., n. But a disseisin or discontinuance of corporeal hereditaments necessarily operates as a disseisin or discontinuance of all the incorporeal rights or incidents which the disseisee or discontinuee has himself in, upon, or out of the land affected by the disseisin or discontinuance. Ib. 332, a., n. 1. Conveyances by feoffment and livery, or by fine or recovery by tenant in tail in possession, work a discontinuance; but if by covenants to stand seised to uses, under the statute, lease and release, bargain and sale, they do not, (Co. Litt. 330, a., n. 1,) unless accompanied with a fine, as one and the same assurance in the two latter instances, (10 Co. 95;) but if the fine be a distinct assurance it is otherwise. 2 Burr. 704. See ante, 2 book, 301. See, further, Adams on Ejectment, 35, &c. 2 Saund. Index, Discontinuance. See 2 D. & R. 373. 1 B. & C. 238.—Chitty.
[(i) ] Finch, L. 190.
[3 ] Bacon (New Abr. tit. Discontinuance) defines it to be “such an alienation of the possession whereby he who has a right to the inheritance cannot enter, but is driven to his action.” The question whether any particular act has this effect depends not so much on the quantity of estate which the wrong-doer has, as upon the mode of conveyance by which he has done it. For example, by the old law the disseisor, who has but a naked possession, might, by feoffment and livery of seisin to a third person, discontinue the lawful estate of the disseisee,—that is, take from him his right to revest it by mere entry; on the other hand, the tenant in tail, who has all but the fee-simple, may be lease and release profess to convey the inheritance in fee to one and his heirs, and yet discontinue no estate, the form of the instrument operating to pass only whatever he lawfully can grant.
In order to effect a general discontinuance, the alienation must be made with livery of seisin, or what is equivalent to it,—though the estates of particular persons may be discontinued by other modes, in order to avoid circuity, as lease and release by tenant in tail with warranty will displace the estate of the issue on whom the warranty descends. See ante, vol. ii. p. 301. Litt. s. 592. Co. Litt. 325, a., n. 278, &c.—Coleridge.
[(j) ] F. N. B. 194.
[4 ] But now, by stat. 3 & 4 W. IV. c. 27, s. 39, no discontinuance shall defeat any right of entry or action for the recovery of land; and, by stat. 8 & 9 Vict. c. 106, s. 4, a feoffment made after October 1, 1845, shall not have a tortious operation, so as to create an estate by wrong; and therefore a discontinuance would seem now to be impossible.—Stewart.
[(k) ] Co. Litt. 277.
[(l) ] F. N. B. 143.
[(m) ] F. N. B. 8, 147.
[(n) ] Finch, L. 263. F. N. B. 201, 205, 206, 207. See book ii. ch. 9, p. 151.
[(o) ] F. N. B. 205.
[(p) ] Finch, L. 264. F. N. B. 192.
[(q) ] Finch, ibid. F. N. B. 202.
[(r) ] Finch, L. 293, 294. F. N. B. 197.
[(s) ] F. N. B. 146.
[(t) ] See page 5.
[(u) ] See book ii. ch. 14, p. 209.
[(v) ] Litt. 417.
[(w) ] Co. Litt. 252.
[(x) ] Litt. 422.
[(y) ] Litt. 419, 423.
[(z) ] Co. Litt. 15.
[5 ] But now, by statute 3 & 4 W. IV. c. 27. s. 10, no person shall be deemed to have been in possession of any land within the meaning of that act, merely by reason of having made an entry thereon; and, by s. 11, no continual or other claim upon or near any land shall preserve any right of making an entry. The distinction between the law as laid down by Blackstone and the present law as to an entry is, that by the former a bare entry on land was attended with a certain effect in keeping a right alive, whereas by the latter it has no effect whatever unless there be a change of possession. When this takes place, the remedy by entry is still in operation; when not, an entry is of no avail, and this remedy no longer exists.—Stewart.
[(a) ] Ibid. 237, 238.
[(b) ] See book ii. page 150.
[(c) ] Co. Litt. 57.
[6 ] See the doctrine as to descents cast clearly explained in Adams on Ejectment, 41 to 45; and see H. Chitty on Descents, 25, 43, 56. Taylor vs. Horde, 1 Burr. 60. 12 East, 141. Watkins on Descents. Com. Dig. Descents. Bac. Abr. Descents. It is scarcely possible to suggest a case in which the doctrine of descent cast can be now so applied as to prevent a claimant from maintaining ejectment. Adams, 41, note e. We have before seen that where the entry of the party or his ancestor was originally lawful, and the continuance in possession only unlawful, the entry is not tolled. See Dowl. & R. 41. “If a disseisor make a lease for term of his own life, and dieth, this descent shall not take away the entry of the disseisee; for though the fee and franktenement descend to the heir of the disseisor, yet the disseisor died not seised of the fee and franktenement; and Littleton saith, unless he hath the fee and franktenement at the time of his decease, such descent shall not take away the entry.” Co. Litt. 239, b., c. It was laid down in Carter vs. Tash, by Holt, C. J., that if a feme-covert is disseisee, and after her husband dies she takes a second husband, and then the descent happens, this descent shall take away the entry of the feme, for she might have entered before the second marriage and prevented the descent. 1 Salk. 241. See also 4 T. R. 300.—Chitty.
[(d) ] Litt. 385-413.
[7 ] He must die seised of the freehold; for if disseisor make a lease for life of the premises, retaining a reversion, and die, this descent does not take away the entry of the disseisee; because the disseisor died not possessed of the freehold, but merely of the reversion. Co. Litt. 239, b.—Archbold.
[8 ] This descent must be immediate; for if any other estate intervene between the death of the disseisor and the descent to the heir, it will not be a descent capable of tolling entry. Thus, if a woman be seised of an estate upon which another has a right of entry, and she marry, have issue, and die, her husband remaining tenant by the curtesy,—if upon the husband’s death the issue enter, this descent does not toll entry, because it is not immediate from the mother, the estate by the curtesy intervening. See Litt. s. 394.—Archbold.
[(e) ] Co. Litt. 237.
[(f) ] See book ii. ch. 13.
[(g) ] Mirror, c. 2, 27.
[(h) ]L. 3, c. 15, 5.
[9 ] But this distinction is now entirely abolished, having been found to lead to many useless subtleties in practice, it being enacted, by stat. 3 & 4 W. IV. c. 27, s. 39, that no descent which may happen to be made after the 31st of December, 1833, shall toll or defeat any right of entry for the recovery of land.—Stewart.
[(i) ] See the particular cases mentioned by Littleton, b. iii. ch. 6, the principles of which are well explained in Gilbert’s Law of Tenures.
[(k) ] Co. Litt. 246.
[(l) ] Ibid. 256.
[10 ] But by the second section, the same exceptions as are enumerated above, of infancy, coverture, imprisonment, insanity, and absence beyond seas, are made, in which case the party entitled may enter within ten years after the disability ceases, notwithstanding the twenty years should have elapsed after his title first accrued; and to his heir the statute gives ten years after the death of such party dying under the disability. It gives the heir ten years and no more, whatever disability he may labour under during all that time. 6 East, 85. And in 4 T. R. 300, it was agreed by the court that in every statute of limitations, if a disability be once removed, the time must continue to run notwithstanding any subsequent disability, either voluntary or involuntary. And in 5 B. & A., Abbott, C. J., said, the several statutes of limitation, being all in pari materia, ought to receive a uniform construction notwithstanding any slight variations of phrase, the object and intention being the same.—Chitty.
[11 ] However, by stat. 3 & 4 W. IV. c. 27, one period of limitation is established for all lands and rents; and it is enacted by s. 2, that after the 31st of December, 1833, no person shall make an entry or bring an action to recover any land but within twenty years next after the time at which the right to make such entry or bring such action shall have first accrued to some person through whom he claims, or, if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or bring such action shall have first accrued to the person making or bringing the same.—Stewart.
[(m) ] Co. Litt. 325.
[12 ] It was doubted whether, under the statutes mentioned in the text, any but a freeholder could have restitution; and therefore the 21 Jac. I. c. 25 applied the power conferred by them to the restitution of possession of which tenants for terms of years, tenants by copy of court-roll, guardian by knight-service, and tenants by elegit, statute-merchant, or statute-staple, had been forcibly deprived. The justices of the peace are bound to grant a writ of restitution; but when the indictment is found at the assizes the judge may exercise his discretion. The Queen vs. Harland, 8 Add. & Ell. 326. 2 Moo. & Rob. 141. In an indictment made under the statutes, the prosecutor’s interest in the premises must be stated, (Rex vs. Wilson, 8 T. R. 360, 362;) whence it seems to follow that where a tenant, wrongfully holding over after the expiration of his term, is forcibly dispossessed by the landlord, the case is not within them: otherwise the justices would be compellable to award restitution to the tenant, although his previous possession would not have supported an action of trespass quare clausum fregit against the landlord. Turner vs. Meymott, 1 Bing. 158; Taunton vs. Costar, 7 T. R. 431. Perhaps, however, the landlord may be indicted for a forcible entry at common law. It is laid down, indeed, by Hawkins that no indictment for a forcible entry lay at common law where the party had lawful right of entry. But in The King vs. Bathurst, Sayer’s Rep. 225, a forcible entry into a dwelling-house was held indictable at common law; and the correctness of what Hawkins said may be doubted. See per lord Kenyon, Rex vs. Wilson, supra, 364. The landlord is undoubtedly liable to an action for a trespass to the person of the tenant, or to an indictment, if the entry be attended with circumstances that of themselves amount to a breach of the peace. Rex vs. Storr, [Editor: illegible character] Burr. 1678. Rex vs. Bake, id., 1731. Newton vs. Harland, 1 M. & G. 644.—Couch.
[(n) ] Mir. c. 4, 24.
[(o) ] Finch, L. 261.
[(p) ] See book ii. Append. No. V. 1.
[(q) ] Finch, L. 262. Booth indeed (of Real Actions, 172) makes the first degree to consist in the original wrong done, the second in the per, and the third in the per and cui. But the difference is immaterial.
[(r) ] Booth, 181.
[(s) ] Finch, L. 263. F. N. B. 203, 204.
[(t) ] 2 Inst. 153.
[(u) ] See book ii. Append. No. V.
[(v) ] Book ii. ch. 21.
[(w) ] F. N. B. 147.
[(x) ] Ibid. 16.
[(y) ] F. N. B. 148. Finch, L. 314. Stat. Westm. 2, 13 Edw. c. 7.
[(z) ] See Bracton, l 4. tr. 7, c. 6, 4. Britton, c. 14, fol. 264. The most usual were,—1. The writs of entry sur disseisin and of intrusion, (F. N. B. 191, 203,) which are brought to remedy either of those species of ouster. 2. The writs of dum fuit infra ætatem and dum fuit non compos mentis, (ibid. 192, 202,) which lie for a person of full age, or one who hath recovered his understanding, after having (when under age or insane) aliened his lands, or for the heirs of such alienor. 3. The writs of cui in vita and cui ante divortium, (ibid. 193, 204,) for a woman, when a widow or divorced, whose husband during the coverture (cui in vita sua, vel cui ante divortium, ipsa contradicere non potuit) hath aliened her estate. 4. The writ ad communem legem, (ibid. 207,) for the reversioner, after the alienation and death of the particular tenant for life. 5. The writs in casu proviso and in consimili casu, (ibid. 205, 206,) which lay not ad communem legem, but are given, by stat. Gloc. 6 Edw. I. c. 7, and Westm. 2, 13 Edw. I. c. 24, for the reversioner after the alienation, but during the life, of the tenant in dower or other tenant for life. 6. The writ ad terminum qui præterut, (ibid. 201,) for the reversioner, when the possession is withheld by the lessee or a stranger after the determination of a lease for years. 7. The writ causa matrimonii prælocuti, (ibid. 205,) for a woman who giveth land to a man in fee or for life, to the intent that he may marry her, and he doth not. And the like in case of other deforcements.
[(a) ] Gilb. Ten. 42.
[(b) ] Booth, 262.
[13 ] The remedy by writ of entry was abolished by 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(c) ] Mirror, c. 2, 25.
[(d) ] 9. Si dominus feodi negat hæredibus defuncti saisinam ejusdem feodi, justitiarii domini regis faciant inda fieri, recognitionem per xii. legales homines, qualem saisinam defunctus inde habuit, die qua fuit vivus et mortuus; et, sicut recognitum fuerit, ita hæredibus ejus restituant. 10. Justitiarii domini regis faciant fieri recognitionem de dissaisinis factis super assisam, a tempore quo dominis rea venit in Angliam proxime post pacem factam inter ipsum et regem filium suum. Spelm. Cod. 330.
[(e) ] Finch, L. 284.
[(f) ] 1 Inst. 153.
[(g) ] 234.
[(h) ] Co. Litt. 159.
[(i) ] F. N. B. 195. Finch, L. 290.
[(k) ] Finch, L. 266, 267.
[(l) ] Stat. Westm. 2, 13 Edw. I. c. 20.
[(m) ] 2 Inst. 399.
[(n) ] F. N. B. 197. Finch, L. 298.
[(o) ] Hale on F. N. B. 221.
[(p) ] Fitz. Abr. tit. con[Editor: illegible character]age, 15.
[(q) ] Bracton, l. 4, de assis. mortis antecessoris, c. 13, F. N. B. 196.
[(r) ] See 1 Leon. 267.
[14 ] In Launder vs. Brooks and others, Cro. Car. 562, the court of King’s Bench “resolved that an assize of mort d’ancestor lies of lands devisable; but if the defendant plead that the land is by custom devisable, and was devised to him, it is a good bar to the action.” This seems more sensible than to deny generally a form of action to the heir because in a particular case there may be a good bar to his right.—Coleridge.
[(s) ] Booth, 211. Bract. 4, 1, 19, 7.
[(t) ] F. N. B. 177.
[(u) ] Bract. 187. Stat. Marlbr. c. 16.
[(w) ] 2 Inst. 83, 84.
[(x) ]L. 4, c. 49.
[(y) ] 32 Hen. VIII. c. 2.
[(z) ] So Berthelet’s original edition of the statute, ad 1540, and Cay’s, Pickering’s, and Ruffhead’s editions, examined with the record. Rastell’s and other intermediate editions, which Sir Edward Coke (2 Inst. 95) and other subsequent writers have followed, make it only forty years for rents, &c.
[(a) ] 8 Rep. 65.
[(b) ] Co. Litt. 115.
[(c) ] 1 Inst. 153. Booth, 210.
[(d) ] See page 184.
[15 ] But all these distinctions are now chiefly of interest as matters of antiquity; for all writs of assize are abolished. 3 & 4 W. IV. c. 27, s. 36.—Stewart.
[(e) ] Finch, L. 267.
[(f) ] Co. Litt. 316.
[(g) ] F. N. B. 255.
[(h) ] F. N. B. 211, 212.
[(i) ] Ibid. 217.
[(k) ] Ibid. 219. 8 Rep. 88.
[(l) ] Finch, L. 268.
[16 ] The twenty years within which a formedon in the descender ought to be commenced under the 21 Jac. I. c. 16, begin to run when the title descends to the first heir in tail, unless he lie under a disability; and the heirs of such person who suffers the twenty years to elapse without commencing the formedon are utterly excluded, and the right of entry is forever lost. 3 Brod. & Bing. 217. 6 East, 83; and see note 10, ante, 178.—Chitty.
[17 ] It might seem, and has been contended, that a fresh title accrues to the issue in tail of a person who has been barred by the lapse of time, and therefore that such issue would have another twenty years in which to bring his formedon. But if this construction prevailed at all, it is obvious that it would equally prevail through any number of descents, and would virtually repeal the statute in the most pernicious manner. In the case of Tolson vs. Kaye, 3 Brod. & Ping. 217, the court of Common Pleas, therefore, determined that the first descent of the title, within twenty years after which the statute requires the formedon to be sued out, is the descent upon that Slaimant who, being free from any disability, suffers twenty years to elapse without asserting his right; and, consequently, that the bar which operates upon him equally concludes all claiming as his heirs.—Coleridge.
[(m) ] F. N. B. 155.
[(n) ] See book ii. ch. 21.
[(o) ] F. N. B. 1.
[(p) ] Ibid. 1, 5.
[(q) ] Ibid. 6. Co. Litt. 158.
[(r) ] F. N. B. 143.
[(s) ] Booth, 135.
[(t) ] F. N. B. 9.
[(u) ] See page 186.
[(w) ] Append. No. I. 1.
[(x) ] F. N. B. 2. Finch, L. 313.
[(y) ] Booth, 91.
[(z) ] Append. No. I. 4.
[(a) ] C. 24.
[(b) ] F. N. B. 5.
[(c) ] See book ii. ch. 6.
[(d) ] Kitchen, tit. Copyhold.
[(e) ] Bracton, l. 1, c. 11, l. 4, tr. 1, c. 9, and tr. 3, c. 13, 9. Old Tenur. t. tenir en socage. Old N. B. t. garde, and t. briefe de recto claus. F. N. B. 11.
[(f) ] Append. No. I. 2.
[(g) ] Ibid. 3.
[(h) ] F. N. B. 3, 4.
[(i) ] Append. No. I. 5.
[18 ] A writ of right cannot be maintained without showing an actual seisin by taking the esplees, either in the demandant himself or the ancestor from whom he claims. 1 H. B. 1. And the demandant must allege in his count that his ancestor was seised of right, as well as that he was seised in his demesne as of fee. 2 B. & P. 570. 5 East, 272. And if the count state that the lands descended to four women, as nieces and co-heirs of J. S., it must also show how they were nieces. 3 B. & P. 453. 1 N. R. 66. Proof of possession of land and pernancy of the rents is prima facie evidence of a seisin in fee of the pernor. But proof of forty years’ subsequent possession by a daughter, while a son and heir lived near and knew the fact, is much stronger evidence that the first possessor had only a particular estate. 5 Taunt. 326. 1 Marsh 68. The court requires a strict observance of the prescribed forms in this proceeding, and will not assist the demandant who applies to rectify omissions or irregularities. 2 N. R. 429. 1 Marsh, 602. 1 Taunt. 415. 1 Bing. 208. The court will not permit the mise joined in a writ of right to be tried by a jury instead of the grand assize, though both parties desire it. 1 B. & P. 192. As to summoning and swearing the four knights, see 3 Moore, 249. 1 Taunt. & Brod. 17. They may be summoned from the grand jury when present at the assizes. Ib. As to the tender of the demymark, and what the demandant must prove previous to the tenant being put upon proof of his title, see Holt C. N. P. 657; and see the precedents and notes, 3 Chitty on Pl. 4th ed. 1355 to 1390.—Chitty.
[(k) ] Glanv. l. 2, c. 3. Co. Litt. 114.
[19 ] This is far from being universally true; for an uninterrupted possession for sixty years will not create a title where the claimant or demandant had no right to enter within that time; as where an estate in tail, for life, or for years continues above sixty years, still the reversioner may enter and recover the estate; the possession must be adverse, and lord Coke says, “It has been resolved that although a man has been out of possession of land for sixty years, yet if his entry is not tolled he may enter and bring any action of his own possession; and if his entry be congeable, and he enter, he may have an action of his own possession.” 4 Co. 11, b.—Christian.
[20 ] All the real actions which have been mentioned in this chapter, and all others whatsoever, with the exceptions of the writ of right of dower, the writ of dower unde nihil habet, and writ of quare impedit, have been abolished; and the title to lands is now always tried, as it was usually in the time of Blackstone, by an action of ejectment or of trespass.—Stewart.