Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Injuries to Real Property, And First of Dispossession, or Ouster, of The Freehold
I 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.
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 wrongdoer gets into the actual occupation of the land or hereditament, and obliges him that has 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. Disseizin; 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 seized of an inheritance, and before the heir or devisee enters, a stranger 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.1 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:2 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 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, has prohibited as far as possible all acquisitions by mere occupancy; and has 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 has 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 rights of real property.
2. 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 dies seized of certain lands and tenements, and a stranger enters thereon, after such death of the tenant, and before any entry of him in remainder or reversion.3 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 seized 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 disseizin. Disseizin is a wrongful putting out of him that is seized of the freehold.4 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. This may be effected either in corporeal inheritances, or incorporeal. Disseizin, of things corporeal, as of houses, land, etc, must be by entry and actual dispossession of the freehold;5 as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him and his servants out of possession. Disseizin of incorporeal hereditaments cannot be an actual dispossession; for the subject itself is neither capable of actual bodily possession, nor dispossession: but is 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 ancient law-books6 mentioned five methods of working a disseizin thereof: 1. By enclosure; where the tenant so encloses 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 besets 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 work a disseizin 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. And all these disseizins, 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 disseized.7 Otherwise, as there can be no actual dispossession, he cannot be compulsively disseized of any incorporeal hereditament.
AND so too, even in corporeal hereditaments, a man may frequently suppose himself to be disseized, when he is not so in fact, for the sake of entitling himself to the more easy and commodious remedy of an assize of novel disseizin, (which will be explained in the sequel of this chapter) instead of being driven to the more tedious process of a writ of entry.8 The true injury of compulsive disseizin 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 feudal tenure the consent or connivance of the lord, who upon every descent or alienation personally gave, and who therefore alone could change, the seizin or investiture, seems to have been anciently necessary. But when in process of time the feudal form of alienations wore off, and the lord was no longer the instrument of giving actual seizin, it is probable that the lord’s acceptance of rent or service, from him who had dispossessed another, might constitute a complete disseizin. Afterwards, no regard was had to the lord’s concurrence, but the dispossessor himself was considered as the sole disseizor: and this wrong was then allowed to be remedied by entry only, without any form of law, as against the disseizor himself; but required a legal process against his heir or alienee. And when the remedy by assize was introduced under Henry II, to redress such disseizins 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 disseized, merely for the sake of the remedy.
THESE three species of injury, abatement, intrusion, and disseizin, 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; which happens when he who has an estate-tail, makes a larger estate of the land than by law he is entitled to do:9 in which case the estate is good, so far as his power extends who made it, but no farther. As if tenant in tail makes a feoffment in fee-simple, or for the life of the feoffee, or in tail; all which are beyond his power to make, for that by the common law extends no farther than to make a lease for his own life: here 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 ancient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discontinued. 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 an husband who was seized 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 should 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.10 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.
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 unlawful, is that by deforcement. And this, in its most extensive sense, is nomen generalissimum [most general name]; being a much larger and more comprehensive expression than any of the former, and signifying the holding of any lands or tenements to which another person have a right.11 So that this includes as well an abatement, an intrusion, a disseizin, or a discontinuance, as any other species of wrong whatsoever, whereby he that has right to the freehold is kept out of possession. But, as contradistinguished from the former, it is only such a detainer of the freehold, from him that has 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 seigniory, and lands escheat to him propter defectum sanguinis [through failure of issue], but the seizin 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 in remainder or reversion; nor is it disseizin, for the lord was never seized; nor does it at all bear the nature of any species of discontinuance; but, being neither of these four, it is therefore a deforcement.12 If a man marries a woman, and during the coverture is seized of lands, and alienes, and dies; is disseized, and dies; or dies in possession; and the alienee, disseizor, or heir, enters on the tenements and does not assign the widow her dower; this is also a deforcement to the widow, by withholding lands to which she has a right.13 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 cestui 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.14 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 thereupon 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 divest the woman’s right; though it does divest the possession, and thereby becomes a deforcement.15 Deforcements may also be grounded on the disability of the party deforced: as if an infant, or his ancestors being within age, 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 is wrongful, and therefore a deforcement.16 The same happens, when one of nonsane memory alienes his lands or tenements, and the alienee enters and holds possession, this is also a deforcement.17 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 seized 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.18 Deforcement may also be grounded on the non-performance of a covenant real: as if a man, seized 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.19 And hence, 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. Thus, lastly, keeping a man by any means out of a freehold office is a deforcement: and, indeed, from all these instances it fully appears, 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.
I. THE first is that extrajudicial and summary one, which we slightly touched in the first chapter of the present book,20 of entry by the legal owner, when another person, who has no right, has 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 feudal investiture by the lord:21 or he may enter on any part of it in the same county, declaring it to be in the name of the whole:22 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 Westmorland, is not any notoriety to the pares or freeholders of Sussex. Also if there be two disseizors, the party disseized must make his entry on both; or if one disseizor has conveyed the lands with livery to two distinct feoffees, entry must be made both:23 for as their seizin is distinct, so also must be the act which divests that seizin. 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 a year and a day only.24 And therefore this claim, if it be repeated once in the space of every year and day, (which is called continual claim) has the same effect with, and in all respects amounts to, a legal entry.25 Such an entry gives a man seizin,26 or puts him into immediate possession that has right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himself by either descent or purchase.
THIS remedy by entry takes place in three only of the five species of ouster, viz. abatement, intrusion, and disseizin:27 for, as in these the original entry of the wrongdoer was unlawful, they may therefore be remedied by the mere entry of him who has 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.
ON the other hand, in case of abatement, intrusion, or disseizin, where entries are generally lawful, this right of entry may be tolled, that is, taken away, by descent. Descents, which take away entries,28 are when any one, seized by any means whatsoever of the inheritance of a corporeal hereditament, dies, whereby the same descends to his heir: 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 seizin 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 divested, till the claimant has 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 a formal action against the heir.29 Thirdly, this was admirably adapted to the military spirit of the feudal 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 seized. And, lastly, it is agreeable to the dictates of reason and the general principles of law.
FOR, in every complete title30 to lands, there are two things necessary; the possession or seizin, and the right or property therein:31 or, as it is expressed in Fleta, the juris et seisinae conjunctio [conjunction of right and possession].32 Now, if the possession be severed from the property, if A has the jus proprietatis [right of property], and B by some unlawful means has gained possession of lands, this is an injury to A; for which the law gives a remedy, by putting him in possession, but does it by different means according to the circumstances of the case. Thus, as B, who was himself the wrongdoer, and has obtained the possession by either fraud or force, has only a bare or naked possession, without any shadow of right; A therefore, who has both the right of property and the right of possession, may put an end to his title at once, b the summary method of entry. But, if B the wrongdoer dies seized of the lands, then B’s heir advances one step farther towards a good title: he has 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.
SO that in general it appears, that no man can recover possession by mere entry on lands, which another has by descent. Yet this rule has some exceptions;33 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.34 And this title, of taking away entries by descent, is still farther narrowed by the statute 32 Hen. VIII. c. 33. which enacts, that if any person disseizes or turns another out of possession, no descent to the heir of the disseizor shall take away the entry of him that has right to the land, unless the disseizor had peaceable possession five years next after the disseizin. But the statute extends not to any feoffee or donee of the disseizor, mediate or immediate:35 because such a one by the genuine feudal constitutions always came into the tenure solemnly and with the lord’s concurrence, by actual of seizin or 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. And by statute 4&5; Ann. 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.
UPON an ouster, by the discontinuance of tenant in tail, we have fain that no remedy by mere entry is allowed; but that, when tenant in tail alienes the entailed, this takes away the entry of the issue in tail, and drives him to his action at law recover the possession.36 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 descent cast, will not suffer the possession of the heir to be disturbed by mere 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, has not only a bare possession, but also an apparent right of possession; which is not allowed to be divested by the mere entry of the claimant, but continues in force till a better right be shown, and recognized 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 not absolutely void.
IN case of deforcements 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 facie evidence of right; that is, possession lawfully gained. Which possession shall be overturned by the mere entry of another; but only by demandant’s showing a better right in 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, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate restitution; which puts the ancient 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 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 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 endeavor to keep possession manu forti [with a strong hand], 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.
II. THUS far of remedies, where the tenant or occupier of the land has gained only a mere possession, and no apparent shadow of right. Next follow or occupier is advanced one step nearer to perfection; so that he has in him not only a bare possession, which may be destroyed by entry, but also an apparent right of possession, which cannot be removed but course of law: in the process of which must be shown, that though he has at present possession and therefore has 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 meddle not with the right of property; only restoring the demandant to that state or situation, in which he was (or by law ought been) before the dispossession committed. But this without any prejudice to the right of ownership: for, if the dispossessor has any legal, he may afterwards exert it, not withstanding a recovery had against him in these possessory actions. Only the law will not suffer to be his own judge, and either take or maintain possession of the lands, until he has recovered them by legal means:37 rather presuming the right to have accompanied the ancient seizin, than to reside in one who had no such evidence in his favor.
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.38 The writ is directed to the sheriff, requiring him to “command the tenant of the land that he render (in Latin, praecipe quod reddat) to the demandant the premises in question, which he claims to be his right and inheritance; and into which, as he says, the said tenant has not entry but by a disseizin, intrusion, or the like, made to the said demandant, within the time limited by law, or that upon refusal he do appear in court on such a day, to show wherefore he has not done it.”39 This is the original process, the praecipe, upon which all the rest of the suit is grounded; and from hence it appears, that what is required of the tenant is in the alternative, either to deliver seizin of the lands, or to show cause why he will not. Which cause may be either a denial of the fact of having entered by such means as are suggested, or a justification of his entry by reason of title in himself, or those under whom he makes claim: and hereupon the possession of the land is awarded to him who produces the clearest right to possess it.
IN our ancient books we find frequent mention of the degrees, within which writs of entry are brought. If they be brought against the party himself who did the wrong, then they only charge the tenant himself with the injury; “non habuit ingressum nisi per intrusionem quam ipse fecit.” [“He had no entry but by the intrusion which he himself made.”] But if the intruder, disseizor, or the like, has made any alienation of the land to a third person, or it has descended to his heir, hat circumstance must be alleged in the writ, for 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 first40 degree, which is called the per, because then the form of a writ of entry is this; that the tenant had no right of entry, but by the original wrondgdoer, who alienated the land, or from whom it decended, to him: “non habuit ingressum, nisi per Guilielmum, qui se in illud intrusit, et illud tenenti dimisit.“41 [“He had no entry but through William who intruded himself on it, and demised it to the tenant.”] A second alienation or descent makes an other degree called the per and cui; because the form of a writ of entry, in that case, is, that the tenant had no title to enter, but by or under a prior alienee, to whom the intruder demised it; “non habuit ingressum, nisi per Ricardum, cui Guilielmus illud dimisit, qui se in illud intrusit.”42 [“He had no entry but through Richard, to whom William, who had intruded on the land, demised it.”] 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 quietness 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 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 on not sooner putting in his claim, while the degrees subsisted, and for the ending of suits, and quieting of all controversies.43 But by the statute of Marlbridge 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 wrongdoer, without deducing all the intermediate title from him to the tenant: stating it in this manner; that the tenant had no legal entry unless after, or subsequent to, the ouster or injury done by the original dispossessor; “non habuit ingressum nisi post intrusionem quam Guilielmus in illud fecit” [“he had no entrance but after the intrusion which William made on it”]; 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 disseizin in the post) that the form of our common recoveries of landed estates is usually grounded; which, we may remember, were observed in the preceding volume44 to be fictitious actions, brought against the tenant of the freehold (usually called the tenant to the praecipe, or writ of entry) in which by collusion the demandant recovers the land.
THIS remedial instrument, of writ of entry, is applicable to all the case of ouster before-mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. Such is that deforcement of dower, by not assigning any dower to the widow within the time limited by law; for which she has her remedy by a writ of dower, unde nihil habet [whereby she has nothing].45 But if she be deforced of part only of her dower, she cannot then say that nihil habet [she has nothing]; 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.46 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:47 being plainly and clearly chalked out in that most ancient and highly venerable collection of legal forms, the registrum omnium brevium [register of all writs], 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 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,48 is almost rendered useless by the very great perfection of the ancient forms. And indeed I know not whether it is a greater credit to our law, 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;49 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 every three weeks, as after the conquest, when all causes were drawn into the king’s courts, and process issued from term to term; which was found exceeding dilatory, being at least four times as flow 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, of which we next to speak.
2. THE writ of assize is said to have been invented by Glanvil, chief justice to Henry the second;50 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 (particularly those of mort d’ ancestor [death of ancestor] and novel disseisin [new disseizin]) were clearly pointed out and described.51 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 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.52 The word, assize, is derived by Sir Edward Coke53 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, s well to take these writs of assize, as to try causes at nisi prius [unless before], are termed in common speech the assizes. By another somewhat for recovering possession of lands: for the reason, says Littleton,54 why such writs at the beginning were called assizes, 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.55
THIS remedy, by writ of assize, is only applicable to two species of injury by ouster, viz. abatement, and a recent or novel disseizin. If the abatement happened upon the death56 of the nephew or niece, the remedy is by an assize of mort d’ ancestor, or the death of one’s ancestor: and the general purport of this writ is to direct the sheriff to summon a jury or assize, to view the land in question, and to recognize whether such ancestor were seized thereof on the day of his death, and whether the demandant be the next heir. And, in a short time after, the judges usually 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 assize of mort d’ ancestor no longer lies, but a writ of ayle, or de avo [from the grandfather]; if on the death of the great grandfather or great grandmother, then a writ of besayle, or de proavo [from the great-grandfather]; 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.57 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:58 though they differ in this point of form, that these ancestrel writs (like all other writs of praecipe) the assize asserts nothing directly, but only prays an inquiry whether those points be so.59 There is also another ancestrel writ, denominated a nuper obiit [he lately died], 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.60 But a man is not allowed to have any of these possessory actions for an abatement consequent on the death of any collateral relation, beyond the fourth degree;61 though in the lineal ascent he may proceed ad infinitum [without end].62 For the law will not pay any regard to the possession of a collateral relation, so very distant as hardly to be any at all.
IT was always held to be law,63 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 seizin of the ancestor, and the heirship of the demandant. And hence it might 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;64 and that now, since the statue 12 Car. II.c.24. which converts all tenures, a few only excepted, into free and common socage, it should follow, that no assize of mort d’ ancestor can be brought of any lands in the kingdom; but in case of abatements, recourse must be properly had to the more ancient writs of entry.
AN assize of novel (or recent) disseizin 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 disseizin 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 since the introduction of giving damages, as well as the possession, is now omitted65) and in the mean time to summon a jury to view the premises, and make recognition of the assize before the justices.66 And, if, upon the trial, the demandant can prove, first, a title; next, his actual seizin in consequence thereof; and, lastly, his disseizin by the present tenant; he shall have judgment to recover his seizin, and damages for the injury sustained.
THE process of assizes in general is called, by statute Westm.2.13.Edw. I.c.24. festinum remedium [speedy remedy], in comparison of that by writ of entry; it not admitting of many dilatory pleas and proceedings, to which other real actions are subject.67 Costs and damages were annexed to these possessory actions by the statute of Gloucester, 6 Edw. I. c.1. before which the tenant in possession was allowed to retain the intermediate profits of the land, to enable him to perform the feudal burdens incident thereunto. And, to prevent frequent and vexatious disseizins, it is enacted by the statue of Merton, 20 Hen. III. c.3. that if a person disseized recover seizin of the land again by assize of novel disseisin, and be again disseized of the same tenements by the same disseizor, he shall have a writ of re-disseizin; and, if he recover therein, the re-disseizor shall be imprisoned; and, by the statute of Marlbridge, 52 Hen.III.c.8. shall also pay a fine to the king: to which the statute Westm. 2. 13. Edw. I. c.26. has 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 jury, or any judgment of the court, if the party be afterwards disseized by the same person against whom judgment was obtained, he shall have a writ of post- disseizin against him; which subject the post-disseizor to the same penalties as a re-disseizor. The reason of all which, as given by Sir Edward Coke,68 is because such proceeding is a contempt of the king’s court, and in despite of the law; or, as Bracton more fully expresses it,69 “talis qui ita convictus fuerit, dupliciter delinquit contra regem: quia facit disseisinam et roberiam contra pacem suam; et etiam ausu temerario irrita facita ea, quae in curia domini regis rite acta sunt: et propter duplex delictum merito sustinere debet poenam duplicatam.” [“He who is so convicted offends doubly against the king; first, because he makes a disseizin and robbery against his peace; and secondly, by a rash undertaking sets at defiance the just decisions of the king’s court: and for this double offense he deserves a double punishment.”]
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 formerly; both to punish his neglect, (nam leges vigilantibus, non dormientibus, subveniunt [for the laws aid the vigilant, not the careless]) and also because it is presumed that the supposed wrongdoer has in such a length of time procured a legal title, otherwise he 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, etc, 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 limitations70 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 period71 for customary or prescriptive rents, suits, and services (fro there is no time of limitation upon rents reserved by deed72) and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seizin, or dispossession, of his ancestors, beyond such certain period. And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseizin complained of; for if it be an older date, it can with no propriety he called a fresh, recent, or novel disseizin: which name Sir Edward Coke informs us was originally given to this proceeding, because the disseizin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone.73 And we may observe,74 that the limitation, prescribed by Henry the second at the first institution of the assize of novel disseizin, 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.
WHAT has been observed may throw some light on the doctrine of remitter, which we spoke of in the second chapter of this book;75 and which, we may remember, was, where one who has a right to lands, but is out of possession, has 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 ancient 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 has nobody against whom to bring his action. This determination of the law might seem superfluous to an hasty observer; who perhaps would imagine, that since the has 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 ancient 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 action. The law therefore remits him to his prior title 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 [right and seizin], separate; a good right, but a bad possession: now, by the remitter, he has the most perfect of all titles, juris et seizinae conjunctionem [the conjunction of right and seizin].
III. By these several possessory remedies the right of possession may be restored to him, that is unjustly deprived thereof. But the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right of property, which may still subsist in another man. For, as one man may have the possession, and another the right of possession, which is recovered by these possessory actions; so one man may have the right of possession, and cannot therefore be evicted 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, has remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant has so voluntarily transferred. 2. In case of judgment given against either party by his own default; or, 3. Upon trial of the merits, in any possessory action: for such judgment, if obtained by him who has not the true ownership, is held to be a species of deforcement; which however binds the right of possession, and suffers it not 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 statue of limitations before-mentioned: for an undisturbed possession for fifty years, ought not to be divested by any thing, but very clear proof of the absolute right of propriety. In these four case 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 etate-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 [according to the form of the gift]) which is in the nature of a writ of right,76 and is the highest action that tenant in tail can have.77 For he cannot have an absolute writ of right, which is confined only to such as claim in fee-simple: and for that reason this writ of formedon was granted him by the statute de donis or Westm.2 13 Edw. I.c.1. which is therefore emphatically called his writ of right.78 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 lies, where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is disseized 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.79 In which action the demandant is bound to state the manner and form of the gift in tail, and to prove himself heir secondum formam doni. A formedon in the remainder lies, where a man gives lands to another for life or in tail, with remainder to a third person in tail or in fee; and he who has the particular estate dies, without issue inheritable, and a stranger intrudes upon him in remainder, and keeps him out of possession.80 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 statue de donis; but is founded upon the equity of the statute, and upon this maxim in law, that if any one has a right to the land, he ought also to have an action to recover it. A formedon in the reverter lies, 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 heris, or assigns: in such case the reversioner shall have this writ to revoer the lands, wherein he shall suggest the gift, his own title to the reversion minutely derved from the donor, and the failure of issue upon which his reversion takes place.81 This lay at common law, before the statue de donis, if the donee aliened before he had performed the condition of the gift, by having issue, and afterwards died without any.82 The time of limitation in a formedon by statute 21 Jac. I. c. 16. is twenty years; within which space of time after his title accrues the demandant must bring his action, or else is forever barred.
2. IN the second case; if the owners of a partucular estae, 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 [that he deforced him]; 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.83 But in case the recovery were not had by his own default, but upon defense 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 common recovery (on a writ of entry in the post) had, not by default of the tenant himself, but (after his defense 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.84
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 stute 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,85 and lies only an estate in fee-simple, and not for him who has 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 has been had as to the possession in an inferior possessory action.86 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 case; as 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 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 e pleaded in bar of any other claim or demand.87
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 other writs which are said to be in the nature of a writ of right, because their process and proceedings do mostly (though not entirely) agree with the writ so right: but in some of them the fee-simple is not demandant; 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, etc: 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 very 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,88 which is in the nature of a writ of right.89 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 [the reasonable part]:90 which may be grounded on the seizin of the ancestor at any time during his life; whereas in a nuper obiit (which is a possessory remedy91) he must be seized at the time of his death. But, waving these and other minute distinctions, let us now return to the general writ of right.
THIS writ ought to be first brought in the court-baron92 of the lord, of whom the lands are held; and then it is open or patent: but if he holds no court, or has waived his right, remisit curiam suam, it may be brought in the king’s courts by writ of praecipe originally;93 and then it is a writ of right close,94 being directed to the sheriff and not the lord.95 Also, when one of the king’s immediate tenants in capite [in chief] is deforced, his writ of right is called a writ of praecipe in capite (the improper use of which, as well as of the former praecipe, quia dominus remisit curiam [because the lord has waived his court], so as to oust the lord of his jurisdiction, is restrained by Magna Carta96) and, being directed to the sheriff and originally returnable in the king’s court, is also a writ of right close.97 There is likewise a little writ of right close, secundum consuetudinem manerii [according to the custom of the manor], which lies for the king’s tenants in ancient demesne,98 and others of a similar nature,99 to try the right of their lands and tenements in the court of the lord exclusively.100 But the writ of right patent itself may also at any time be removed into the county court, by writ of tolt,101 and from thence into the king’s courts, by writ of pone [put]102 or recordari facias [cause to be recorded], at the suggestion of either party that there is a delay or defect of justice.103
IN the progress of this action,104 the demandant must allege some seizin of the lands tenements in himself, or else in some person under whom he claims, and then derive the right from the person so seized 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; which puts the demandant upon the proof of his title: in which if he fails, or if the tenant can show a better, the demandant and his heirs are perpetually barred of their claim; but if he can make it appear that his right is superior to the tenant’s he shall recover the land against the tenant and his heirs forever. But even this writ of right, however superior to any other, cannot be sued out at any distance of time. For by the ancient law no seizin could be alleged by the demandant, but from the time of Henry the first;105 by the statute of Merton, 20 Hen. III. c. 8. from the time of Henry the second; by the statute of westm. 1. 3 Edw. I. c. 39. from the time of Richard the first; and now, by statute 32 Hen. VIII. c. 2. seizin 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.
I HAVE now gone through the several species of injury by ouster or dispossession of the freehold, with the remedies applicable to each. In considering which I have been unavoidably led to touch upon much 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 absolutely antiquated as to be out of force, though they are certainly out of use: there being, it must be owned, 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 upon actions of ejectment, or trespass.