IF' ^5MEUNIVER% JX 1 4 ■^ ^- J ilR i 3 >*»* /^ ilFO% In ^' !^i 1^ /nni^^' Hm^//j ,,>ia:>.'.v.:. ^ o ^ ^ .xvTimp&w/)^ iv:^ 3 4i> v:> aViiiiU^^' iX>' ,»11IWIARY^. i m .v!0!\VCf!fr> .sxTlinnW OF-CAIIFOR^ '^'^' '^^na/^ ^iosA«n£r^ ^ofcaufo, ? S Mil (^.•wllYMili'"' ■•iajfrjf iui ^ "'oaiU'NJi it^> AHCFlfx a '/> $r \i 0^ ^Of:DDAMy<) TLM TITOS, Tt M rACII.rS. i'ro/. Tiej-. ^rrr. BOSTON : PUBLISHEP BY CUMMINfiS, IHLLrARI), L CO. Liiivcrsity Press — Hilliard Sf Melcalf. lb;2-4. ' DIsVrK: r JC«';TV» ASSACHUSErTS" TO* WIT. '•.*,.' • .* . ^ Dl.itr^ct /.'lerk's OJfire. Be it remembered, that on tlie*(\ve(jV/(;ty<5«y of. ?f(J(-nil»(T, A l> IR24, and in the forty nintli year of the iiidepttiidfiicoTof llJ«'*i'nit«»d StHi»'> of America, Asaiiei. Stearns, of the said di'sitod in lhi>offirf ihe title of a book, the right whereof be claims as auliior, in lb»- words follow ing, to wit : "A Summary of the Law and Practice of Real Actions; willian Ap(>eiidii of Practical Forms. By Asahel Steakns, Professor ok La*\ l^ Harvard University. — Nihil enim habcmuso|italius. i|uaiu ut in hoc stiidii nvtwrr, Ib- bores tuos tibi reddamiis turn tcjtos, Inm facilfs. Prol AVjj firrr." In conformity In the act of the Con}:ress of the Inited Sliites. ••ulilbd " An act for the eiitourafjeinent of Icarnins,', by seriiriiifr the copies of niHp<>, cbnrts, and books, to the authors and proprietors of such copi«'s, during; Ihe tinirs therein mentioned ;" and also to an act. entitled. An act suppli-ntontitry to na act, entitled, An act for the encourasenient of learning:, by securing thi- cop- ies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned, and extending the beiiefitj therrof to ibe arts ot desiguing, eiigraviiig, aud etching historical and other prints " J NO W D^VI^. Clerk of the Dutrict of MastachuKUt, 18X4 TO THE LAW STUDENTS or HARVARD UNIVERSITY, THIS SUMMARY OF THE LAW AND PR ACTIPE or REAL ACTIONS, O&ICI.NALLY DRAWN IP FOR THEIR USE, 18 NOW IN8CRIBKD BY TlIK ALTilOU, AS A TESTIMONY OF HIS EARNEST DESIRE TO AID THEM lit THE HONOURABLE AND LABORIOUS STUDY or AMERICAN JURISPRUDENCE. 7^5351 PREFACE. The difliculty of acquiring a competent knowledge of tlie LiAW AND Practk K OF Real Actions, froHi the books in common use, is felt by every student. And a modern treat- ise, which should explain the nature and principles of these ANCIENT REMEDIES, theii' fomi and structure, with the pleadings and evidence upplituble to each, has been long considered " a desideratum in THE SCIENCE OF JURISPRUDENCE."* It is chicfly owing to the dilficulty of preparing such a treatise, that it has been hitherto declined by abler hands. And perhaps the attempt now made by the author of the ensuing pages may be thought to require an apology, instead of giving him a claim to the indulgence or the thanks of the profession. In conunon with others, he has felt the want of that assist- ance, which it is the object of his present undertaking to afford. Soon after he took change of the Law Department IN THE University, with a view to remove some of the difficulties experienced by his pupils, he drew up a short course of Lectures upon the Law and Practise of Real Actions, the apparent utility of which more than equalled his expectations. The favorable opinion of several learned friends, and the partiality of some of his pupils, led them to express a desire that those Lectures should be made public. To their wishes he has yielded ; and they now constitute the substance of the ensuing treatise, which is submitted to the profession, with the hope thai it may in some measure supply the want which has been alluded to. Designed chiefly for the use of students, and the younger members of the bar, the author has endeavored to make it an ♦ Sec li Wheat. R. 315. VI PREFACE. ELEMENTARY, Qs Well as a PRACTICAL WORK. In the Introdtictioii he has stated and explained at some length, and with as much clearness and precision as he was able, some of the fun- damental principles of the Law of Real Property. He has also attempted, (with how much success others must decide,) to introduce method and arrangement into this department of the law, in which they have been hitherto very little regard- ed. And however defective the plan or the execution may be, he flatters himself that the attempt will not be wholly useless. A change of the order in any department of science seldom fails to suggest, even to the learned reader, some views of the subject, which, under a different arrangement, might have escaped his notice. Strict method has nevertheless been made to yield to consid- erations of utility. And in some instances a statement or remark has been repeated, to avoid the inconvenience of referring the student to another part of the work, when a short expla- nation seemed necessary. A large portion of the ancient proceedings in Real Actions having become obsolete in our courts, considerable embar- rassment was felt, as to the course proper to be pursued. It was supposed that some account of those proceedings, in the early times of the English law, would be desired and expect- ed by the student. And that their having fallen into disuse in our practice, would not generally be considered a sufficient reason for omitting to notice them. Upon this point, it is highly probable, different opinions may be entertained. By some it may be thought that too large a portion of the work has been devoted to the explanation of the ancient law and practice ; while others may perhaps consider them deserving of more attention than they have received. In the execution of his task, the author has aimed at some- thing more than a mere collection of cases. He has attempt- ed to analyse, to examine, and to apply to our practice, the ancient principles and doctrines of the law ; and to present to the student, in as clear and intelligible a manner as he could, PREFACE. VU as much useful information as possible in a small compass. No endeavours have been wanting on his part, to render the work useful to the profession, especially to the younger mem- bers of the bar. In discussing so many difficult subjects, he cannot expect to have wholly escaped from errors. But he has followed the best lights he could obtain, by no inconsiderable research, and a careful examination of the authorities to which he has referred. For the mistakes into which he may have fallen, he trusts that he shall Hnd some apology, in the acknowledged diificulty of the undertaking. The manifest defects of the precedents of Real Actions, now in common use, arc familiar to every lawj^er. In many of them the forms of dillerent actions are so blended, that it is not easy to decide to which class they belong. To supply this defect the author has, without hesitation, had recourse to the precedents in the Register, and Rastell ; the conciseness and technical accuracy of which are too well known, to require any commendation. And they have been no farther altered, than was necessary to acconmiodalc them to the changes which we have made in the ancient practice. In the forms of pleas and REPLICATIONS he has availed himself of the same aid as far as he could, and has supplied the deficiency from other sources in the best manner he was able. It was originally the intention of the author to include in this volume some remarks upon the kindred subjects of fVaste^ Partition, ana Forcible Entry and Detainer. Materials were prepared for that purpose, and a reference to one of those sub- jects was made in page 21. But he afterwards thought it more prudent, not to extend his work beyond the objects necessarily embraced by the title, while it remained uncer- tain how far his labors would prove acceptable to those, for whose use they were designed. Harvard University^ September^ 1824. ANALYTICAL TABLE OF CONTENTS. INTRODUCTION. Sect. 1. Ceremonies in the transfer of real properU' — orig- inally by fcoflment and entry. 1. Sect. 2. Seisin defined: is either in fact, or in lau\ 2. Sect. 3. Seisin in fact is rightful or wrongful. — Rightfully acquired by feoffment and entry. 3. Sect. 4. Seisen in fact is wrongfully acquired by disseisin. 5. Sect. 5. Desseisin may be by a ASTongful entry, or the wrong- ful act of a person rightfully in possession. 7. Sect. 6. Dis.^eisin by particulai- tenants. — When and how it incurs a forfeiture. 8. Sect. 7. What conversances may work a disseisin, and their operation. 10. Sect. 8. Conveyances construed with gi'eat indulgence by our law. — Acknowledgement and recording a deed, when equivalent to livery of seisin. 12. Sect. 9. Seisin and disseisin strictly only of real and corpo- real property. — It may be either actual, or at the elec- tion of the party disseised. 13. Sect. 10. Entry when necessary to acquire or regain the seisin. In what cases an actual entry not required, to give a seisin in deed. W hen entry cannot be made with personal safety, the party may make claim. 15. b X ANALYTICAL TABLE OF CONTENTS. Sect. 11. Effect of an entry generallj determined by the in- tention of the party. Entry to regain the seisin, or for oth?r purposes, should be peaceable. Forcible entry and its conseqtiences. 19. Sect. 12. Entry for condition broken, by whom, when, and how made. Entry for non-payment of rent: and effect of an entry in defeating an estate. 22. Sect. 13. Of the seisin required to convey lands, and to trans- mit them by devise or descent. 29. Sect. 14. Entry by a mortgagee or assignee of a mortgage, to obtain the possession, or to foreclose the mortgage. 34. Sect. 15. Seisin how, and to what extent, acquired or lost in certain cases. 38. Sect. 16. Seisin and disseisin of tenants in common and joint- tenants. 40. Sect. 1 7. Effect of an entry, when the lands are in the same, or different counties, or in possession of different persons, and when one enters to the use of another. 41. Sect. 18. What act may be deemed an entry, and the usual ceremony of making it. 43. Sect. 19. Necessity of an actual entry generally superseded by the fictions adopted in Ejectment. 46. CHAPTER I. OF TITE REMEDIES FOR INJURIES TO REAL PROPERTY, WHICH AMOUNT TO AN OUSTER. Sect. 1. The several injuries which amount to an ouster. 48. Sect. 2. Ancient law of Real Actions obsolete in England : a new remedy by Ejectment introduced. 51. Sect. 3. Circumstances Avhich led to the introduction of the action of Ejectment. 52. Sect. 4. Remedy by Ejectment for a long time defective and inconvenient. Difficulties removed by adopting a series of fictions. 54. ANALYTICAL TABLE OF CONTENTS. XI Sect. 5. Great diversity of practice in this country, as to these remedies. 57. Sect. 6. Simphcity and convenience of the practice adopt- ed in Massachusetts. 59. Sect. 7. Remedy in cases of ouster. It is either by entry, or by action. 63. Sect. 8. In what cases an entry is lawful : and when lolled, or lost. 64. Sect. 9. Rightof entry how affected by a Discontinuance. 68. Sect. 10. how by Deforcement. 70. Sect. 11. In what case a party may enter, where he cannot maintain an action. 72. Sect. 12. In what cases an entry is an effectual remedy, and where it is of no avail. 74. Sect. 13. A momentary seisin, acquired by an entry, may in some cases change the remedy, and give the party a different writ of Entry. 75. Sect. 14. Inproceedingsby Ejectment it has no such effect. 77. Sect. 15. Difference between real and personal actions, as to the conclusiveness of the judgment. 80. Sect. 16. In real actions the judgment is a bar to other actions of the same, but not to those of a higher grade. 81. Sect. 17. In Ejectment a former judgment is no bar, and why. 82. CHAPER II. OF REAL ACTIONS, AND THEIR INCIDENTS. Sect. 1. Real actions in general — their nature, and in what cases the proper Remedy. 84. Sect. 2. Where, when, and against whom a Real action may be brought. 87. Sect. 3. Process in Real actions by the ancient km. 89. Sect. 4. Process and proceedings in o\ir practice, 9 1 . Xll ANALYTICAL TABLE OF CONTENTS. Sect. 5. Essoins and their consequences. 94. Sect. 6. Summons and severance, when necessary. 97. Sect. 7. Aid-prayer and Receit. 99. Sect. 8. Imparlance and its consequences. 103. Sect. 9. Parol-demurrer, when allowed or disallowed. 105. Sect. 10. View by the ancient law, and in England. 110. Sect. 11. View when allowed, and how conducted in our practice. 113 CHAPTER III. OF WARRANTY — COVENANTS VOUCHER. Sect. 1. Warranty of fuedal origin. Mutual obligation ol' Lord and Tenant. 118. Sect. 2. Subinfeudation. Its effects in restricting warranty. Statute of Quia emptores and its consequences. 122. Sect. 3. Restricted operation of" the statute. Express and implied warranty. Operation of the words give, grant, &c. in consequences of freehold estates. 1 24. Sect. 4. Ancient law respecting estates for years. Lessee considered a bailiff of lessor. Express and implied covenants in leases for years. These covenants ditier from a warranty. 126. Sect. 5. The statute of Quia emptores put an end to implied fuedal warranty. Express warranty introduced. Not conhned to feoffments, like implied warranty. 129. Sect. 6. Rebutting the grantor. Vouching — Summons ad w^arrantizandum — Counterpleading to voucher and to war- ranty. Summons ad v: ENTRY SUR DISSEISIN IN THE POST. 20. Upon the Demandant's own seisin in fee. 439. 21. By Husband and Wife, upon the seisin of the Wife's Mother. 439. 22. By two Children and two Grand Children, upon the seisin of their ancester. 440. 23. Against a Corporation, upon the seisin of the Demandant's Brother. 441. 24. By Proprietors of Lands, Wharves, &c. held in common. 441. 25. Ag;ainst one who entered by Abatement^ after the death of the Demandant's Brother. 442. ENTRY SUR INTRUSION. 26. Against the Intruder, after the death of Tenant in Dower. 443. 27. By two Heirs, in the Per, after the death of Tenant by the Curtesy. 444. 28. In the Post, .after the death of the Demandant's Lessee for life. 445. 29. In the Post, by Assignees of the Reversion, after the death of Cestui qxbc vie. 446. 30. ENTRY ad communem legem^ in the Per, by the Heir, after the alienation of Tenant in Dower. 446. 31. Entry ad termimiin qui prccteriit, in the Per, by the Heir of the Lessor. 447. 32. Same, in the Per and Cui, by the Lessor. 448. 33. Same, in the Post, by the Assignee of the Reversion. 448. TABLE OF PRACTICAL FORMS. XlX WRITS OF ENTRY TO FORECLOSE MORTGAGES. 34. By Mortgagee, alleging a seisin in fee and in mortgage. 449. 35. By Executor or Administrator, against one who entered in the life time of the Testator or Intestate. 450. 36. Same, against one who entered after the death of the Testa- tor or Intestate. 451. 37. By a Mortgagee, setting forth the Deed, with a profert. 451. PLEAS IN BAR. 38. That the Mortgage was usurious. 452. 39. Payment or Tender, after breach of the Condition. 454. WRIT OF ENTRY FOR LAND SET OFF ON EXECUTION. 40. Entry by an Executor or Administrator, for Lands set off to to him on Execution. 455. Aid Prayer and Receit. 41. Prayer of Aid, hy a Tenant by the Curtesy. 456. 41, a. Summons ad auxiliandum, in a writ of Right, 457. 42. Prayer to be received to defend &,c. 457. 43. Oath of the Sheriflf upon View by the Jury. 458. 44. Summons ad warrantizandmn. 459. PLEAS IN ABATEMENT IN WRITS OF ENTRY. 45. Alienage of the Demandant. 459. 46. General Non-tenure to the writ. 460. 47. Special Non-tenure to the writ 460. 48. General Non-tenure to a moiety, and the general issue to the Residue. 461. 49. Replication to the Plea of Non-tenure, taking issue. 461. XX TABLE OF PRACTICAL FORMS. 50. Joint-tenure to the writ, with a profert of the Deed. 462. 51. Replication to the ahove plea, taking issue. 462. 52. Plea that the demandant is Joint-tenant with another, not named in the Writ. 463. 53. Disclaimer by one tenant, and the other takes the Entire- tenure, and pleads the general issue. 463. 54. Replication to the last plea, taking Issue. 464. 55. Two tenants plead severally^ non-tenure with a disclaimer, as to each other's part, and several-tenure to the residue. 464. 56„ Replicatioa t ) the preceding pleas, taking Issue. 465. 56. Plea, that the writ should have been in the Per and Cui, and not in the Per. Note to p. 4C5. 57. Plea to a writ in the Per, that the tenant did not enter by the person named in the writ. 465. 58. Replication to the preceding plea, taking Issue. 466. PLEAS PUIS DARREIN CONTINUANCE. 59. Plea that the demandant has entered and disseised the ten- ant. 466. 60. Replication to the preceding plea taking Issue. 467. 61. Plea, JMarriage of a Feme sole Demandant. 467. 62. Plea, Death of one of the Demandants. 467. PLEAS IN BAR TO WRITS OF ENTRY. 63. NoN desseisivit to a writ of Entry in the Q;uibns^ on the sei- sin of the Demandant. 468. 64. Same, to a writ upon the seisin of an Ancestor. 468. 65. Same, to a writ in the Per, the Per and Cui, or the Post. 468. 66. Non-tenure, in bar. 469. 67. Replication to the above plea, taking Issue. 469. 68. Non disseisivit to part, and Disclaimer to the residue. 469. 69. Replication to the plea of Disclaimer, taking Issue. 470. 70. Plea, Conveyance by the Demandant to a Stranger. 470. 71. Replication to the preceding plea, that nothing passed by the Deed. 471. TABLE OF PRACTICAL FORMS. XXl 72. Prayer that the Jury may inquire as to the increased value, by reason of Buildings and Improvements. 471. 73. Prayer that the Jury may inquire as to the value, without the Buildings and Improvements. 472. 74. Verdict for the Demandant, with a finding of the value of Improvements, &c. 472. PROCEEDINGS IN DOWER. 75. Writ of Dower. 473. 76. Plea in Abatement, No demand one month before the writ was sued forth. 474. 77. Plea in Abatement, No demand upon the person who took the immediate Freehold. 474. 78. Plea in Bar, JVe unques accouple &,c. 474. 79. Replication to the preceding plea, taking Issue. 475. 80. Plea in Bar, JVe unques seisie que Dower. 475. 81. Plea in Bar, that the Husband is living. 475. 82. Replication, affirming the Husband's death. 476. 83. Plea in Bar, Dower already assigned. 476. 84. Replication, denying the assignment. 477. 85. Plea in Bar, Acquittance of Dower by the Demandant. 477. 8G. Confession of the Demandant's right, and suggestion of Im- provements, since the Alienation by the husband. 478. 87. Writ of Seisin of Dower. PROCEEDINGS IN FORMEDON. 88. Formedon in the descender by two co-heirs. 479. 89. Plea, General issue, Non dedit, or ne dona pas. 480. 90. Formedon in the descender, by the heir of the Remainder man in Tail, upon a Gift to Husband and wife. 480. 91. Plea in Bar, Feoffment of demandant's Ancestor with war- ranty. 482. 91. a. Replication, Nothing by descent from the Ancestor. 483. 92. Formedon in the reverter by the heir of the Donor. 483. 93. Formedon in the remainder, with a profert of the Deed. 484. XXii TABLE OF PRACTICAL FORMS. 94. Same by Devisee of the remainder. 485. 95. Plea in Bar, Non devisavit. 486. 96. FoRMEDON IN THE REMAINDER by heirs of Remainder-man. 486. PROCEEDINGS IN WRITS OF RIGHT. 97. Writ of Right on the seisin of the Demandant 487. 98. Same by Husband and Wife, on the seisin of her Ancestor. 488. 99. Plea in Bar, Denial of the Ancestor's seisin. 489. 100. Joinder of the mise upon the mere right. 489. 101. Action for the Mesne profits. 490. Note, A. 491. Mtn\)tvtimtmnU The Author deems it proper to apprise those students at a distance, into whose hands this treatise may fall, that although his leading object has been to present a correct summary of the Law and practice of Real Actions in Massachusetts, he has at the same time endeavored to render his work, (if it should be found to possess any merit,) generally useful. With that view he has stated and explained the ancient and modern law and practice in England, with as much clearness and precision as he could, and distinctly pointed out those parts of that cum- brous system, which have been either departed from or reject- ed by our courts. And he flatters himself that he has so far succeeded, that its usefulness tt>)7/ nof be diminished^hy the local law incorporated with it. INTRODUCTION. Sect. I. The necessity of some ceremony to be observed in the transfer of the property of one proprietor of the soil to another, which should constitute the evidence of such transfer, seems to have been early understood, if it was not indeed coeval with the first notions of individual property among all nations. By the ancient common law of England, the ceremony established for this pur- pose, consisted of 3. feoffment and entry, which con- veyed to the feoffee a perfect and indefeasible estate, when rightfully made ; and, even when wrongful, transferred the fee, though it left the title to it imperfect, and liable to be defeated by the rightful owner. The party who thus acquired the estate was said to be seised of it. But when he obtain- ed it by such wrongful act, he was denominated a disseisor, and was said to acquire the estate by disseisin. The importance of a correct understanding of these terms by the student, must be manifest. An 1 2 INTRODUCTION. [SEC. II. explanation, therefore, of their operation and consequences, whether rightfully or wrongfully made, may perhaps be considered a proper, and even necessary introduction, to the summary view which it is proposed to give of the Law and Prac- tice of Real Actions in the ensuing pages. Sect. II. Seisin, in the original and technical sense of the term, denotes the completion of that Feudal investiture, by which the tenant was admitted into the tenure, and without which no freehold could be constituted or conveyed. It was distinguished into seisin in fact, and seisin in law. Seisin in fact is when a person has the actual seisin or possession. Seisin in laiv is when upon the death of the ancestor or devisor, the heir to whom the lands descend, or the devisee, to whom they are devised, has not entered upon them, so as to acquire the actual seisin or possession, and no other person having usurped the possession, it remains vacant. The seisin may be in severalty, in joint tenure, or in common. There is also another diversity of seisin, arising from the carving of the inheritance into different estates, as where A. has an estate for life, with the remainder or reversion to B. in fee. In this case, not only he who has the freehold in possession, but he also M ho has the remainder or reversion, is equally in the seisin of the fee. SEC. III.] INTRODUCTION. 3 But in this case, there is a distinction also, some^^'liat analogous to that before mentioned, between the expectant nature of the seisin of him who has the remainder or reversion, and the actual seisin of the tenant in possession. Such however is the connexion and dependence of one portion of the estate upon the other, that any act, even of a stranger, that disturbs the estate of the tenant for life, is a disturbance of the whole fee. And by the common law, any denial or disaffirmance of the title of the reversioner, by the tenant for life, was a forfeiture of the estate of the tenant. This, however, it is to be observed, resulted from the duty by which the tenant was bound to his feudal lord, and was the consequence of the strict doc- trines of the feudal tenure. With us, therefore, the tenant in possession incurs no forfeiture by denial or disaffirmance of the title of the rever- sioner. Sect. III. It is said by lord C. B. Gilbert,' that feoffments were anciently made upon the land, before the pares, who subscribed the charter of feoffment, (or rather had their names subscribed to it,) in the hiis testibus ; and that the entry of the feoffee was recorded in the records of the lord's court. At a later period, the feoffment was allowed to be good, though attested by other ^ Crilb. Law of Tennre?. 39. 4 INTRODUCTION. [SEC. III. persons than the pares curies ; and the entry was considered, as valid, when made upon the land in the presence of the peers of the court, though not recorded. Afterwards, though it was not required that feoff- ments should be attested by the pares curiee, it was necessary that they should have the attestation of the pares comitatus, by whom they were to be tried. Therefore, if the lands were in different counties, there must have been livery and entry in each county ; because both, if controverted, must have been proved by the pares comitatus. And Mr. Sullivan, in his lectures, assigns several reasons why the presence of the pares curice, upon the transferring of the freehold, should be equally desirable to the tenants, and to the lords of whom they held.^ This rule, indeed, as to an entry, which limits its operation to the lands lying in the county in which the entry is made, still prevails, not only in England, but in this country, though the reasons upon which it was founded have ceased to exist. It seems, however, that the cus- tom of making livery before the peers of the court, and recording the entry, as abovementioned, was early dispensed with, and had fallen into disuse, even before the time of Bracton. For he does not mention the necessity of the pares curice being present, or the entry of the feoffee being ^ Lecture vi, p. 142. SEC. IV.] INTRODUCTION. 5 recorded in the lord's court, in order to complete his seisin.^ Indeed, the description of a feoffment by Blackstone,^ as used in modern times, is mere- ly a transcript from Bracton. And it is manifest, as Mr. Butler has observed,' that from the reign of Henry II. to the present time, no other ceremony was used, than what is now practised in England, of the feoffor and feoffee coming upon the land, either in person, or by attorney, (all other persons being out of the land,) and the feoffor there, in the presence of witnesses, delivering the possession of it to the feoffee. Such was the ceremony by which the feoffor parted with the seisin, and the feoffee acquired it rightfully. Sect. IV. But the seisin, as was before intimated, might be lost and acquired by wrong, that is, by disseisin, which in the ancient law technically implies the turning of the tenant out of his fee, and usurping his place, in relation to the lord of whom he held. To constitute an actual disseisin, therefore, in the strict sense of the term, it was necessary that the disseisor should enter without having a right, the disseisee being in the actual possession of the land ; and that the disseisor should, with some degree of force, expel him therefrom, and substitute himself as tenant to 1 Brae. lib. 2, c. 18. p. 39. ^ 2 Com. 315. 3 Co. Litt. 330, b. n. 1. 6 INTRODUCTION. [sEC. IV. the lord. It seems doubtful, however, whether this substitution of one tenant for another, could be effected without the connivance, or perhaps the consent of the lord, according to the doctrines and practice of the feudal law. But by the more modern doctrines of the English law, since tenures were abolished, and especially by the law of our own country, a disseisin consists in usurping the dominion of the disseisee over his real property, and not his feudal relation to the lord of the fee. Yet the force ascribed to a disseisin by the ancient law, of transferring the freehold as effectually by tvrong, as a feoffment does by right, still remains. For, as by the feudal laws, the freehold could not be transferred without livery of seisin, and livery of seisin could not be made by one who had the possession, without transferring the freehold : so also by a disseisin the disseisor cannot acquire a less estate than a fee simple, even though he should expressly claim a less one ; it being a well settled rule of law, that a disseizor shall not restrict or qualify his own wrong. ^ But this rule, it should be remembered, was established for the benefit of the disseizee, and that he might elect his remedy. It must therefore be restricted in its application to an avowed usurpation of the seisin, 1 Co. Litt. 296, b. n. 1.— 12 Mass. R. 325, Proprietors. 4'C. rs. McFarlcmd. SEC. v.] INTRODUCTION. 7 and not applied to an entry under a mistaken belief of title to a particular estate in the premises. For where a man enters upon land, under a sup- posed lawful title to some limited estate, as under a lease which proves to be void, or the like ; thou2;h such a mistake will not excuse the tres- pass, he can only be a disseisor, at the election of the disseisee. There is no rule of law, which precludes the disseisee from considering the party so entering, as a mere trespasser, and proceeding against him as such, at his election. Indeed there is nothing which makes such entry, under a mis- taken claim of some limited estate, an absolute disseisin of the fee, so that a descent cast would toll the entry of the disseisee.* But the act of one who takes upon himself to transfer, or to usurp the seisin in fee, admits of no such qualification. The feoffor cannot part with the seisin, without transferring it to the feoffee ; neither can the disseisor deprive the disseisee of it, without at the same moment ac- quiring it himself. Sect. V. The disseisin of which we have hitherto spoken, consists in the wrongful entry of a person not before in possession, and the expulsion of the rightful owner by him. There * 7 Wheat. 107, Rieard vs. Williaws ; Com. D. Seisin F. 2. 3. 8 INTRODUCTION. [SEC. V. may also be a disseisin committed by any person who is rightfully in the possession, provided he is not the absolute owner of the ivholefee simple. Thus tenants for years, at will, and by sufferance, (and in England, copy holders, tenants by elegit, statute merchant, and statute staple,) are all con- sidered as having the estate rightfully; yet each of them, by a feoffment, may disseise the owner of the fee, and vest in his own feoffee, an actual, thouo;h defeasible estate of freehold. A feoffment so executed, (or other conveyance, if the grantee enters by force of it,) is immediately valid against every person but the rightful owner. And it may become valid even against the owner himself, if he neglect to enter within twenty years, and ac- cording to our limitation, bring no writ of entry within thirty years, or writ of right within forty years. But by making his entry, or bringing his action, within the time limited by the law, the wrongful estate is defeated, and the seisin is re- vested in himself. And in every case, however feeble, slender, or even ivrongful, the possession of the feoffor may be, his feoffment necessarily vests the freehold in the feoffee^ until the dissei- see, by his entry or by action, regains the possess- ion. Sect. VI. The law however was not satisfi- ed, with defeating the estate thus wrongfully created by such feoffment. It also punished the Sec. VI.] INTRODUCTION. 9 perfidy of the particular tenant, who" had made such an unlawful use of the possession, which had been entrusted to him, by the forfeiture of his estate to the remainderman or reversioner.^ This forfeiture was a consequence deduced from the doctrines of the feudal law. By that law, as originally established, if the vassal aliened the whole, or any part of his feud, or if he even refus- ed to perform the feudal services, it was regarded as a renunciation of his subjection to the lord of the fee, and consequently a just cause of forfeiture. Afterwards it was considered too severe a punish- ment for the mere neglect or delay of the feudal services, to permit the lord to resume the feud, as forfeited to himself. And in order to substitute a milder remedy for this severe penalty, distresses were introduced from the civil law, to compel the tenant to perform his duty. But the only redress, where the tenant for life made a feoffment in fee, was a seizure of the land itself.^ In these cases, the effect of the forfeiture was to let in the remain- der or reversion, to commence immediately, unless h happened that the particular tenant had, before the forfeiture, created a legal estate. For if such an estate had been created by the particular tenant before the act was done, by which he incurred a forfeiture, the law would protect the riglit of 1 Co. Litt. 251. 2 Gilb. Tenures, 38. 2 Id INTRODCCTIOK. [SEC. VII. such innocent party. Thus where lessee for twenty years made a lease for ten years, and then made a feoffment in fee, by which he forfeited his term, the estate of the under lessee was pro- tected. For the law would not suffer him who had created a legal estate, to defeat the interest which he had himself created.^ In the case of a feoffment by the tenant for life or years, it did not prevent the forfeiture, though tlie feoffment was upon condition, and the feoffor had entered for condition broken. The entry for the breach of the condition would indeed reduce the estate, so that he should be tenant for life again ; but it could not purge the forfeiture, or prevent the reversioner taking advantage of it.^ So also where one entitled to be tenant by the curtesy, made a feoffment in fee upon condition, and entered for a breach of the condition, after which the wife died ; he could not afterwards be tenant by the curtesy. For although the estate which he conveyed by the feoffment, was condi- tional, yet it was held that his title to be tenant by the curtesy was forfeited, and became abso- lutely extinct by the feoffment.^ Sect. VII. But it is to be observed, that even in England, no conveyance of the particular 1 2 Bl. Com. 275.— Co. Litt. 233, b. 3 Co. Litt. 202, b. 252, a. ^ Co. Litt. 30, b. SEC. VII.] INTRODUCTION. Jl tenant creates a forfeiture, except those which divest the remainder or reversion ; which effect is produced onli/ by a feoffment, fine, and common recovery. A conveyance by lease and release, or bargain and sale, made by the particular tenant, and purporting to convey the fee simple, is no forfeiture ; because the operation of these convey- ances is, only to transfer to the releasee or bar- gainee such estate as the releasor or bargainor may rightfully convey. And this distinction between the operation of a feoffment, fine, and recovery on the one hand, and a bargain and sale, lease and release, and covenant to stand seised, on the other, is what is meant by the expression which sometimes occurs, where the former are described as tortious, and the latter as rightful convey- ances. Feoffments, fines, and recoveries are not in use with us, as common assurances, or conveyances of land. The two former were probably never introduced into this state ; and the other was chiefly resorted to, for the purpose of barring estates tail, before the statute of 1791, ch. 61, permitted that to be done by the deed of the ten- ant. For this reason, and, perhaps, because we do not recognize the common law doctrines of tenure in their whole extent, no conveyance by the tenant of the particular estate was probably ever held with us, to be a forfeiture, so as to let in the 12 INTRODUCTION. [SEC. VIII. remainderman or reversioner, before the regular determination of the preceding estate. Yet it should be understood that we adopt the doctrines of the feudal law, as to tortious feoffments, to a certain extent. For it has been held, that a deed of conveyance, made by a person in possession of lands ivithout title, and an actual entry under such deed by the grantee, is a disseisin of the owner.^ But the disseisin does not, perhaps, so much result from the conveyance, in this case, as from the entry ; which would have been equally a disseisin, had the deed been made by a person not in possession, if the grantee entered, and pretended to claim by force of it.^ Sect. VI II. By our law, in order to give effect to the lawful and honest intentions of the parties, a deed of land may be considered any species of conveyance, which is necessary to effect that object ; and not repugnant to the terms of the instrument.^ For this purpose such a deed may be construed as a feoffinent, and the acknowl- edgment and recording shall be deemed equivalent to livery and seisin.^ So a deed, purporting in form to be a bargain and sale to A. and his heirs, 1 1 1 Mass. R. 225, Warren vs. Childs. 3 5 Mass. R. 352, Higbee vs. Rice. 3 6 Mass. R. 24, Marshall vs. Fisk. * 5 Mass. R. 352, Highbee vs. Rice. SEC. IX.] INTRODUCTION. 13 to the use of B. and his heirs, (in order to give effect to the intent of the parties,) has been con- strued as a feoffment by which A. took the legal estate directly, and not by way of use, and B. took the use which was executed in him by the statute of uses.* The reason of this construction is manifest. For if the deed had been regarded as a bargain and sale to A., the use to B. could not take effect, because it would be limiting 07i€ use upon another, which the law does not allow. And where husband and wife conveyed the wife's life estate by deed, to a remainderman in tail, it was held to operate as an extinguishment of the life estate, and not as a transfer of it to the remainderman.^ Sect. IX. Seisin, according to the strict import of the term, is only of real and corporeal property, as lands, houses, and the like ; or some- thing dependent on, or issuing out of lands, as reversions, seignories, and rents. Of these last, it is manifest there can be no corporeal seisin, and consequently no actual, or forcible disseisin. In order to explain this distinction, and the meaning of the term, as applied to incorporeal rights, it may be observed, that where a person had been disseised of land, and could not regain his seisin 1 6 Mass. R. 24, Marshall vs. Fisk. * 3 Mass. R. 487, Livermore vs. Bagley. 14 INTRODUCTION. [SEC. IX. by entering upon the disseisor, his only remedy, in early times, was a writ of entry. The difficul- ties and delays attending this remedy in those times introduced the writ of assize ; the invention of which Mr. Reeves ascribes to Glanville, the celebrated Chief Justice of Henry 11.^ This remedy was found to be so prompt and convenient, that many persons in order to avail themselves of it, in cases of slight injury, surmised or admitted themselves to be disseised, by acts which did not really amount to an actual disseisin. This was therefore denominated a disseisin hy election^ in contradistinction to the other ; it being in fact a disseisin, only as to the disseisor and disseisee ; the latter, as to every other person, still continu- ing seised as before. The assise was next resort- ed to by those who claimed to be seised of the incorporeal rights before mentioned ; and finally, by such as claimed offices, franchises, and the like, in the enjoyment of which, they had been disturbed. These all necessarily complained of a disseisin of their several rights, because ybr that injury alone the assize was a proper remedy. In all these cases, the party having no corporeal seisin, cannot have any remedy, but by action ; and the disturbance of which he complains as a disseisin, is only so by his election. The books 1 Reeves' Hist. ch. 3. SEC. X.] INTRODUCTION. 15 often mention the disseisin of incorporeal heredi- taments and rights, where it is to be understood generally of dissesins at the election of the party., where he chose to consider himself as disseised, for the sake of the remedy by assise ; and where he might have elected to consider himself not disseised. From this source arises much of the confusion and apparent contradiction in the old law writers, upon the nature and effect of a disseisin. For thereby the freehold can be acquir- ed, only when it is an actual disseisin, and not merely when the party may elect to consider it a disseisin, or 7iot a disseisin, at his pleasure.* Sect. X. By the common law, an eiitry was necessary in almost every case, either to acquire or to regain the actual seisin of lands. The purchaser entered upon the lands in order to receive the seisin by feoffment, or to acquire the actual seisin, where he already had the seisin in law, by a descent or devise to him. So also, where he had recovered lands by judgment of law, an entry was necessary to receive the actual seisin from the sheriff, under the habere facias seisinam. And where lands were conveyed upon condition, an entry was required, upon breach of the condition, to vest the seisin in him who had the right. 1 See 7 Wheat. 107, Ricard vs. Williams. 16 INTRODUCTION. [SEC. X. There were, however, several cases, even in common law, in which the party acquired an effectual seisin in deed, without an actual entry. Thus where land was in lease for years, the hus- band might have airtesy, without an actual entry, or even the receipt of rent.* The same doctrine was also held with regard to seisin in the case of possessio fratris. And in Barwick's case, 5 Co. 94, the like operation seems to be ascribed to letters patent under the great seal, which it is there expressly held, amount to a livery in law. It was therefore determined in that case, that the conveyance of a freehold by letters patent, to commence in futuro, was as much void, as if the conveyance had been by feoffment, because in neither case could there be a present livery of the future freehold estate. So also, in all conveyances deriving their effect from the statute of uses, the party to whom the conveyance is made, has a perfect seisin in deed, without livery or entry. ^ The same ope- ration is expressly given by statute to our common deed of conveyance, when perfected by acknowl- edgment and registry.* And generally where the grantee takes by inatter of record, the law deems 1 Co. Litt. 29, a. n. 3. 3 1 Cruise 12; Shep. T. 223; Co. Litt. 271, note. 3 Mass. Stat. 1783, ch. 37, § 4. SEC. X.] INTRODUCTION. ^ 17 such a grant of equal notoriety with an actual tradition of the possession by livery, in view of the vicinage, according to ancient usage. But the reason upon which the ancient rule of law was founded, which required an actual seisin by livery or entry, did not hold, when applied to a wilderness, such as this country was when our ancestors took possession of it, and as large districts of it remain to the present time. In such an uncultivated country, no notoriety of transfer could have been given by these means ; and the reason ceasing, the rule does not apply. It has accordingly been generally held, that a conveyance of wild and vacant lands, gives a constructive seisin in deed, to the grantee ; and he thereby acquires all the legal rights and reme- dies incident to such an estate.^ When a person entitled to enter upon lands could not make his entry peaceably, or at least safely, the law allowed him to approach as near to the lands as he could, without danger, and there claim the land to he his ; which would have the effect, for that time, of an entry. This claim might be repeated as often as there was occasion ; and when made once at least in every year and day, it was denominated continual 1 See 8 Cranch 249, Green vs. Liter; 1 Munf. 142, CelayYS. White ; 14 Johns. 406, Jackson vs. How. 3 18 INTRODUCTION. [SEC. X. claim J and had the effect to prevent his right of entry being lost, or taken away, by any limitation or descent, which might otherwise toll or defeat it. It is defined by lord C. J. Dyer, to be " a challenge of the ownership, or propriety, that he hath not in possession, but is detained from him by wrong."* The fear, to excuse an omission to enter, must be a fear for his personal safety or liberty. If it be only a ^ear of destruction of houses, or goods, without any danger of personal hurt, it will not excuse the party, because, say the old lawwriters, he may recover damages for the loss of his property.^ The period of a year and a day, which often occurs in the old law, seems to mean nothing more than a complete year, including the whole of the first and last day of it. It was the time within which the feudal services must be required ; and within that time, no laches attached.^ This provision of the ancient law, which had its origin in an age of lawless violence, occupies no inconsiderable space in the old books ; but has long since become nearly obsolete, and is now scarcely regarded in any other light, than as one of the antiquities of legal learning. 1 Plowd. Com. 359. 2 Litt. s. 420.— Co. Litt. 253, b. 3 Co. Litt. 250, b. n. 1. SEC. XI. ^ INTRODUCTION. . 19 Sect. XI. The most common occasion for an entry, is in order to obtain the actual seisin, when withheld by some wrongful act of another, as a disseisin, abatement, or intrusion. And here it may be observe<:l, that in this, as in most other cases relating to the acquisition and transfer of property, the effect of a party's act is generally determined by the intent with which it is done. Where a party who is entitled to the seisin, makes an entry, the natural presumption is, that he intends to revest the estate in himself; and the law gives that effect to his entry, without any express declaration of such intention on his part. Thus it has been held, that if a disseisee en- ters into the land of which he has been disseised, and continues in it with the dissisor, claiming nothing of his original estate ; yet this entry will reduce the estate, and restore to him the seisin.* And if he enters and takes the profits, as lessee at will of the disseisor, or in any other manner, such entry will reduce the estate, unless a different intention is manifest on the part of the disseisee. So also, if he command a stranger to enter, or to put the cattle of such stranger upon the land to feed there ; this is a good entry in law to revest the estate.^ 1 2 Danv. Abr. 790, 2 ibid. 20 INTRODUCTION. [SEC. Xl. But if A. make a lease for years to B. remain- der in fee to C, and A. comes upon the land to make livery, and B. to receive it, this shall not be deemed an entry of B., to vest the actual possession in him, till livery is made ; for then the remainder would be void, contrary to the intention of the parties.^ So, if the disseisee agree to release to the disseisor upon the land, all his right, and enter accordingly for that purpose, and there deliver the release ; this is a good release. And the entry, being only for the purpose and delivering the release, does not avoid the disseisin.^ Generally, where an entry is made, whether for a condition broken, to demand rent, to avoid a fine, or to revest the seisin, after an abatement, intrusion, or disseisin, it is made in the presence of witnesses, who are brought for that purpose, and to whom the intention of the party entering is expressly declared. And in all these cases, the entry should be peaceable and without force. Before the reign of Richard II. it seems that any person who had been recently disseised, was permitted to recover his possession hy force. But this summary mode of doing justice to one's self, being productive of gieat disorder and violence, 1 Co. Litt. 49, b. 2 Co. Litt. 49, b ; Lil. Conv. 131. SEC. XI.] INTRODUCTION. 21 a statute of the fifth year of that king directed, " that none from henceforth should make any entry into lands and tenements, but in cases where entry was given by the law. And in that case it should not be with a strong hand, nor with a multitude of people, but only in a peaceable and easy manner. And persons doing the contrary were to be punished by imprisonment, to be ran- somed at the king's pleasure." Another stature of the fifteenth year of the same reign, authorized the the Justices of the Peace to repair to the place, and if they found any that had entered, or who held forcibly, to commit such persons to the next gaol, there to remain until they made fine and ransom to the king. These statutes laid the foundation of the summary remedy i'or forcible entry and detaitier, to which several others were added in the reigns of H. VIIJ. Eliz. and Jac. I., which are well explained in Burn's Justice. The most important part of the provisions of these statutes are contained in our statute of 1784, c. 8, against forcible entry and detainer, which will be noticed hereafter ; and similar regulations will be found in the laws of almost every state in the union.^ ^ See 10 Mass. R, 403, Commonw. vs. Dudley ; 8 Johns. 44 ; 10 Johns. 304 J 4 Bio. 194; 3 Harris and McHenry 438 j 2 Bay. 355. 22 INTRODUCTION. [SEC. XII. It should however be remarked, that if the defendant sets up a title in himself, which is found for him, though he may be punished by fine, as a disturber of the peace, the plaintiff can recover no damages.* If a person who has right, make a forcible entry, he may be indicted; but the wrong- doer, on whom he entered loith force, cannot maintain in an action of trespass for such entry .^ Because the plaintaiff ought to have, not only actual, but as to the defendant, lawful possession of real estate, to enable him to maintain trespass.^ Sect. XII. One occasion for an entry upon real property, which has not been particularly noticed and explained, is to take advantage of some condition annexed to an estate, when the condition has been broken. And it is a general principle of law, that he who would take advan- tage of such a condition which has been broken, must do it by making an entry, if he can ; and if he cannot enter with safety to his person, he must make claim. For the law does not allow an estate of freehold or inheritance to cease, by mere breach of the condition, without entry or claim. And it will make no difference, though the conveyance contains an express jjroviso, that if the grantee do not pay a certain sum by such a day, that then I Co. Litt. 257, a. n. 1. 24 Johns. 150, Hyatt vs. Wood. ■^ 9 Johns. 61, Stuyvesant vs. Tompkins 4' Dunham. SECT. XII.] INTRODUCTION. 23 his estate shall cease and he void^ It is also the same, as to the effect of the condition, whether the estate is conveyed by feoffment, bargain and sale, or by devise. But vi^here the fee is transferred by construc- tion or operation of law, and the condition is broken, the estate will also be revested by like construc- tion of law, without entry or claim. And gener- ally he who may enter for breach of a condition, may also, at his pleasure, ivaive the forfeiture incurred by such breach.^ A condition may be inserted in a conveyance for the benefit of the grantor, or of the grantee. And its effect may be either to revest the estate in the grantor, as in the common case of a mort- gage ; or to enlarge the estate of the grantee, as where the conveyance is to A. for life, with a condition, that if he does a certain act, or prays a certain sum of money, he shall have an estate in fee ; or finally, the condition may be inserted for the purpose of defeating the estate of the grantee, if he shall fail to perform some stipulated act, or shall do some prohibited act ; as Avhere a lease is made, upon condition that it shall be void, if the lessee shall fail to pay the rent, or shall assign the lease, without the consent of his lessor. 1 Co. Litt. 218, a; Plowd. 133, b. 2 Co. Litt. 218, a; 1 Conn. Rep. 91, Chalkervs. Chalker. \ 24 INTRODUCTION. .fSECT. XII, And it is this kind of conditions only, which are to be taken advantage of by entry. It may therefore be proper to subjoin a iew remarks, 1. As to the person by whom an entry may be made for the breach of a condition. 2. As to the time when the entry may be made. 3. In what cases a demand must be made before entry ; and 4. As to the effect of such an entry in defeating the estate to which it is annexed. 1. It is a general rule, that no right of entry, or re-entry, can be reserved, or given to any other person, than the feoffor, donor, or lessor, &c. and their heirs ; and such right of entry caimot be assigned or transferred to another.* This prin- ciple had its origin in the policy of the ancient law, to guard by all possible means against ^maintenance^ the subversion of justice, and the oppression of the poor, by the rich and powerful. For if men were allowed to grant before they obtain possession, as lord Coke remarks, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed.^ In the case of a bishop, prebend, parson, and the like, if the predecessor make a lease upon condition, the successor may enter for the condi- tion broken, because they are privies in right.^ 1 Litt. § 347. 2 Co. Litt. 214, a. 3 Co. LiU. 214, b. 1 Wood's Conv. 11. SEC. XII.] INTRODUCTION. ' 25 It is not however to be understood, that the feoffor, grantor, lessor, or heir, must personally enter for breach of a condition. An entry by any other person by their express authority or com- mand, will be as effectual as if made by them- selves. And it seems, that even the entry of a stranger, without any previous authority, would be good to take advantage of a condition broken, if assented to afterwards by him who had a right to enter.* It has been held, however, that a bailiff could not enter for nonpayment of rent, without a particular authority.^ In the case of a lease /or years upon condi- tion the law is different. If the lessor grant the reversion to another, and the condition is after- wards broken, the grantee of the reversioner may enter ; for by the breach of the condition, the lease is, ipso facto, determined before entry.^ 2. The time when an entry may be made for the breach of a condition must of course depend upon the terms of the instrument or contract, by which it is reserved. Unless some other time is express- ly limited, the entry may be made as soon as the breach is incurred. If the breach consists in the omission to do some act by the grantee or lessee, it is always important, and sometimes difficult, to 1 2 Stra. 1128, Fitchet vs. Adam$. ^ Hob. 154. 3 Co. Litt.— 214, b ; 1 Wood's Conv. 11. 4 26 INTRODUCTION. [SEC. XII. determine at what time his duty requires it to be done ; that is, whether the party has his whole life to do the act, or it is to be done immediately, or within what the law denominates convenient time. But these questions may generally be resolved, by considering what was the reasonable intention of the party by whom the condition was reserved. There are, however, several rules of construction upon this subject, to which the stu- dent is referred.* 3. The principal case in which a demand must be made before entry, is where the entry is for nonpayment of rent. For where a man makes a feoffment or other conveyance in fee, reserving to himself and his heirs a certain annual rent, payable at a particular day, with a condition, that if the rent should be behind and unpaid, that then it should be lawful for the feoffor or grantor, or his heirs to enter ; yet if such party does not first demand the rent, he cannot lawfully enter. And the reason usually assigned is, that the land 'is the debtor ; and therefore it is also held, that the demand must be upon the land, that being the place of demand appointed by the law.^ And generally where a penalty, as well as a re-entry is given for the non-performance of a condition, 1 Co. Litt. 208, b. 219, a. b. 2 Co. Litt, 201, b; Litt.§ 125. SEC. XII.] INTRODUCTION. 27 the forfeiture cannot be taken advantage of, with- out a demand at the time prefixed.^ But if the rent be reserved to be paid at some other place, and not on the land, the demand must be made in the same manner, at the place appoint- ed by the parties.^ If the reservation of the rent is with a condition, that if it shall be behind and unpaid for the space of ten or twenty days, after any day of payment, that then the feoffor may enter ; in this case he need not demand the rent on the regular day of payment, but may make his demand at any time before the expiration of the last day thus limited.^ Where the condition is, that if the rent is be- hind and demanded the feoffor may destrahii (instead of entering,) he need not make the demand at the day appointed. He may demand it at any time after it becomes due, and the demand will authorize him to destrain.^ 4. The entry of the feoffor or grantor for a condition broken, defeats not only the estate to which the condition is annexed ; but all rights and incidents also, annexed to that estate, as dower &c. and all the mesne incumbrances created by the feoffee or grantee, as mortgages, leases, and the like. And every such condition defeats the 1 Hob. 82; Moor 883 ; Dy. 51 ; Wood's Conv. 11. - Co. Litt. 202, a. ^ Ibid. * Ibid. 28 INTRODUCTION. [SEC. XII. entire estate : it being an established principle, that a condition cannot be so framed, as to make the same estate in land cease as to one person, and remain as to another ; or to cease for a time, and revive afterwards.^ It is also a rule of the common law, that a condition cannot be appor- tioned by any agreement of the parties, so as to become void as to one part of the land, and remain in force as to the residue.^ But it seems there may be an apportionment of a condition by act of law.^ And a part of a condition may be good, though another part is void, being against law.* If an estate be granted for life upon condition, and the remainder over, the entry of the grantor for breach of this condition will defeat the remain- der, because it defeats the livery by which it was created.^ But there may be a condition of re-entry which will not defeat the estate of the grantee. As where it is not a general condition of re-entry for non-payment of rent ; but the condition is only that if the rent is not paid, the grantor shall re- enter and hold until the rent is satisfied. By such an entry, the grantor would gain no estate of freehold, but only an interest, by agreement, to take the profits in the nature of a distress.^ '^ 6 Co. 40, b ; 41, a. ^ See 4 Co. 120, a. b. 3 Co. Litt. 215, a. Mb. 379, b; and see 202, b. n. 2. 5 2 Danv. Abr. 123; 1 Wood's Conv. 1.3. « Litt. § 327. gEC. XIII.] INTRODUCTION. " 29 With respect to the demand of rent, m addi- tion to what has been already stated, it may be proper to observe, that the demand must not only be upon the land, (unless some other place of payment is appointed,) but at the most notorious and public place. If there is a house, it should be demanded at the front door of the house ; and a demand at the back door would be a void de- mand. If there is no house, or other building, it should be at the gate, or most public entrance upon the land. But it is not necessary to enter the house or come upon the land. The demand must also be so long before sunset of the day of payment, as to allow reasonable time to count the money.* And if more than one quarter's rent, or one year's rent is due, it seems that only the last should be demanded, by him who would enter for nonpayment. For the neg- lect to demand the former was a waiver of the condition as to that.^ Sect. XIII. The common law, in order to guard against the evil of mantenance, did not allow any person who had been disseised of real property, to convey his right to another, until he had regained the seisin. But he might relinquish it by a release to the disseisor ; 1 Co. Litt. 200, a. 3 Lil. Conv. 137; 1 Wood's Conv. 12. 30 INTRODUCTION. [SEC. XIII. for that would rather prevent, than encourage litigation. And this necessity of a seisin, to enable the owner to transfer his property, applied not only to a conveyance of it in his life time, but also to the transmission of it by devise or descent at his death. 1. Where the conveyance was by feoffment, if the owner had been disseised, but had not lost his right of entry, the act of entering to make the feoffment had the effect of revesting the seisin, which he was capable of instantly transferring to the feoffee. But while he was deprived of the seisin, and had only a right of entry or action, that right could not be assigned to a purchaser. Therefore, if the conveyance was to be by bargain and sale, or lease and release, and the owner had been disseised, these conveyances would be inoperative, if made while the disseisin continued. Consequently it became necessary for the disseisee first to enter ; and then he might execute the lease, or bargain and sale, with effect. But the more usual practice was to enter upon the land, and there to seal and deliver the conveyance.* Even where the tenant in a real action pleads in bar the deed of the demandant to a stranger ; if at the time the deed was executed, the grantor was dis- seised, he may reply to such plea, that nothing ^ See 5 Burr. 2830, Beck vs. Phillips ; Run. on Eject. 145. SEC. XIH.] INTRODUCTION. 31 passed by the deed. For he who is entitled to recover, is not barred by the execution of a deed, purporting to be a conveyance of the demanded premises, but by which his right did not pass ; unless it be by way of estoppel between the parties to the decd.^ 2. To give effect to the devise of real property, it is necessary that the testator should not only be seised, at the time of executing his will, but he must continue seised until the time of his death. If after devising lands, the testator is disseised, and dies without entering upon them, the devise becomes void. Therefore in an action brought by the devisee, it is a good plea that the devisor did not die seised.^ But if the devisor re-enters, the devise again becomes valid ; for after the re-entry the disseisee is considered as never having been disseised.^ If a testator after he is disseised, devise all his right to the disseisor, it seems that such a devise is not inoperative, but may take effect as a release.* Where a con- 16 Mass. R. 418,421, Walcott \^. Knight; 14 Mass. R. 200, ^nox vs. Kellock; 1 Johns. R. 163; ib. 159; 5 Johns, 489; 2 Day 151. 2 See Bro. Abr. Devise, pi. 15; 11 Mod. 128, Bunker vs. Cook ; Cowp. 305, Hogan vs. Jackson ; 10 Mass. R. 131, Poor vs. Robinson. ' 4 Burr. 1961, Roe, ex dem. Noden vs. Griffits. * 10 Mass. R. 131. 32 INTRODUCTION. [SEC. XIII. veyance of land was obtained hy fraud and impo- sition^ and the deed was afterwards acknowledged and recorded, it was held not to amount to such a disseisin, as disabled the grantor to pass the estate, by a will previously executed.* A republi- cation of a will, containing a general devise of all the lands of which the testator shall die seised, may pass after acquired lands. But it seems that such republication, to give i^ that effect, must be made with the same solemnities as the original will.2 3. The rule of law, as to the transmission of title by descent, is briefly expressed in the maxim of Fleta, seisina facit stipitem. It is thus stated by lord Coke^ '^ A man that claimeth as heir in fee simple to any man by descent, must make himself heir to him, that was last seised of the actual freehold and inheritance."^ And lord Hale remarks, that the last actual seisin in any ances- tor, makes him as it were the root of the descent, equally to many intents, as if he had been a pur- chaser ; and therefore he who cannot derive his succession from him who was last actually seised^ shall not inherit.^ And generally, he who acquires an estate in lands by descent, (which before entry 1 15 Mass. R. 113, Smithwick vs. Jordan. 2 9 Johns. 312, Jackson, exdem. Rodgers vs. Potter. 3 Co. Litt. 1 1, b. 4 Hist. Com. Law, c. 11, p. 267. SEC. XIII.] INTRODUCTION. 33 gives him only a seisin in law,) must gain a seisin, in fact, or actual seisin, before he can transmit such lands to his heir.^ But where the ancestor acquires the estate by pur- chase, that is, by his own act, there is some relax- ation of the strictness of the rule. And several cases are mentioned, in which he is allowed to transmit to his heirs an estate of which he was never actually seised ; as where one party dies, after an exchange, but without having entered.^ The rule of the common law upon this subject is adopted in Massachusetts ; and, with some mod- ifications by statute or usage, in several of the other states. It has been considered, however, that the situation of lands, in the unsettled parts of this country, made it necessary to apply with some limitation, the rule, which in England re- quires a seisin in fact, in order to transmit real property by descent. And it has been deemed no departure from the spirit and substance of the English law, to consider the ownership of wild and vacant lands equivalent to an actual siesin.^ The same principle has also been applied to another anal- gous case ; and the ownership of wild and uncul- tivated land by the wife, has been u 1 1 . sufficient 1 Co. Litt. 11, b; 15, a. 2 See 1 Co. 98, b ; Cruise, Tit. 29, ch. 3, § 8. ^14 Johns. 406, Jackson vs. Howe. 5 34 INTRODUCTION. [SEC. XIV. seisin in her, to entitle the husband to be tenant by the ciirtesj.^ In Connecticut, the maxim seisina facit stipi- tem, it is said, is wholly disregarded. And the practice has always been, that upon the death of an ancestor, the descent was cast upon his heir, without any regard to the fact of an actual seisin by such ancestor ; and the right of such heir to the real property of the intestate, has always been considered the same, as his right to the personal property.^ Sect. XIV. By the law of Massachusetts, mortgages are foreclosed by entry upon the mort- gaged premises, taking actual possession thereof, and continuing such possession three years, with- out any decree of foreclosure, or other judicial act. The entry must be after conditon broken, and either " by process of law," that is, under a judgment of a court of law, " or by open and peaceable entry, made in the presence of two witnesses." The manifest design of the legisla- ture, in allowing an entry to be made without a suit at law, is to save the mortgagor, who is wil- ling to yield the possession to his mortgagee, the 1 8 Johns. 269, Jackson vs. Sellick. And see 1 Munf. 162, Clcuj vs. White ; 3 Munf. 285, Davis n them, or other act of trespass, of which he had no notice.^ And where a person having no title, enters upon lands, and at a subse- quent period commences a more visible, permanent, and notorious occupancy, as by fencing, or the like, in favour of the party having right, he shall be deemed to be disseised by the second entry, and not by the first. ^ Sect. XVI. The possession or entry of one tenant in common, or joint tenant, is always pre- sumed to be in maintenance of the right of all ; and he shall not be presumed to intend a wrong to his companions, if his acts will admit of any other construction. The mere pernancy of the profits by one, shall not be considered, of itself, as an ouster.^ If there are several tenants in common, who are co-heirs, the entry of one will not be deemed 1 4 Mass. R. 416. 27 Mass. R. 381, Pray vs. Pierce. ^10 Mass. R. 93, Brown vs. Porter. 4 5 Mass. R. 344, Higbee vs. Rice. SEC. XVII.] INTRODUCTION. 41 adverse to the title of the others, without the strongest evidence of exclusive claim of title to the whole estate. But one heir may disseise his co-heirs, and hold an adverse possession against them as well as against a stranger. An ouster or disseisin is not generally to be presumed, from the mere fact of sole possession. But it may be proved by such possession, if accompanied with a notorious claim of exclusive right to the property in question.* If one tenant in common enter into the actual and exclusive possession of the lands, taking the rents and profits to his own use, and openly assert- ing his own exclusive property in the lands, deny- ing the title of any other person, it is an adverse possession by him, and those claiming under him, and an ouster of the other tenants.^ So, if one tenant in common enter into the whole of the estate, under a deed duly acknowledged and reg- istered, from one who has no title, it is an actual disseisin of his companions.^ Sect. XVII. It has been already mentioned, that where the lands to be conveyed, were in dif- ferent counties, it was necessary to make livery of seisin in each county, in order to vest the seisin in 1 7 Wheat. 120, Ricard vs. Williams. 2 10 Mass. R. 464, Cumings vs. Wyman. 3 5 Mass. R. 352, Highee vs. Rice. 6 42 INTRODUCTION. [SEC. XVII. the feoffee.^ The same rule generally holds with regard to an entry. When the same person has disseised the owner of lands lying in different counties, it is necessary, in order to revest the seisin, to make an entry in each county. But if the lands are all in the same county, the entry on one tract, in the name of the whole, is sufficient ; unless the disseisin was of several distinct parcels, by several persons ; for in this case there must be an entry into each parcel.^ The general rule of law is, that the entry, to revest the freehold or inheritance, should corres- pond to the remedy which the same party might have by action. The consequence is, that the effect of an entry can extend to such lands only, as the party entering could have demanded in the same writ of entry .^ In several cases, the entry of one person may enure to the use of anolher. The case of joint tenants and tenants in common has been already alluded to ; and there are other cases of the same sort. The husband may enter for the wife, where her entry is lawful, and it will revest the possession, even without her assent. And if one enters to the use of an infant, it is valid, before ^ Ante, § 3. - 8 Cranch, 250, Green vs. Liter ^ al. ^ Co. Litt. 252, b ; Co. Law. Tr. 264. SEC. XVIII.] INTRODUCTION. 43 any assent by the infant.* So if he enters for a person of full age, where the entry is lawful, it will revest the possession before any agreement.^ The wife also may enter in the husband's name, and if he agrees to it afterwards, it is the same as an entry by himself.^ And many other cases of the like kind may be found in the books. ^ Sect. XVIII. Several acts have been noticed in the course of the preceding remarks, which, in favour of him who had a legal right to enter, have been deemed sufficient in law, to avail him as an actual entry. But some further observations upon the subject may be useful to the student. With regard to an entry, as well as an ouster-, the intent generally determines the character, and consequently the effect of the act ; according to the maxim of lord Coke, affectio iua nomen impo- nit operi tuo.^ The intent may sometimes appear from the act ; at other times only from the decla- rations of the party : but when both are taken into view, it will be still more manifest.^ The mere act of going upon the land, or enter- ing the' house, will not always constitute a legal entry, sufficient to vest the actual seisin in him who has the right. Thus where the disseisee, at 1 1 Wood's Conv. 8. * Ibid. » Cro. Eliz. 72. * Vin. Abr. Entry, C, D, F ; 1 Wood's Conv. 7, 8, 9. 5 Co. Litt. 49. b. <^ Co. Litt, 245. b. 44 INTRODUCTION. [SEC. XVIII. the request of the disseisor, went into his cellar to see the antiquity of it ; this was adjudged to be no entry by the disseisee.^ So if one is invited to dine at a house to which he makes claim, his going into the house for that purpose shall not be deemed an entry, to vest the possession in him, though he has the right.^ And where the de- mandant went into the house with a jury, on a view, it was held to be no entry ; for in order to constitute a legal entry, the party must go upon the premises with that intent.^ But where the act is done with an intention to enter, it will generally be sufficient to go upon any part of the land. If there is a house upon the land, an entry into the house to which the land appertains, with a claim of the whole, is a good entry to revest the seisin of the land, as well as the house. But it i« said, that if it be merely an entry into the house, claiming the house only, it will not avail as to the land.^ Where a person attempts to make an entry, and in the act of en- tering is resisted, (as where one is entering by the window, and only a part of his body being within the house, he is dragged out by the heels,) it is a sufficient entry. ^ 1 Plowd. 92, 93. 2 Co. Litt. 368, a. 3 Plowd. 93, ^ 1 Lill. Abr. 515. 3 Watk. L. D. 45 ; Bro. Seisin, 20, 23. SECT. XVIII.] INTRODUCTION. 45 In the case of a lease for years, it is generally necessary that the lessee should enter, in order to acquire the possession, so as to be capable of receiving a release, or maintaining an action of trespass. But this must be understood as apply- ing only to leases at the common law : for a lease by bargain and sale, or by way of use, is com- pletely executed by the statute of uses, without an actual entry. If the lessor die before the entry of the lessee, he may still enter afterwards. And if the lessee die before entry, his executor or administrator may enter. So if the lease is made to two or more, the death of one does not prevent the entry of the others.^ As to the ceremony of making an entry, it is usually the same, whatever may be the purpose for which it is made. The common direction is, that if it be a house, and the door is open, the party entering should go into the house, and say, / here enter and take possession of this house. If the door is shut, he should place his foot upon the ground-sill, or against the door, and make the same declaration. And where the entry is to be made upon land, the person who makes the entry may go upon any part of the land, declaring the purpose for which he enters as before.^ If the party enters as attorney or agent to some other 1 Co. Litt. 24G, a. 2 See 1 Lill. Abr. 515. 46 INTRODUCTION. [SEC. XIX. person, he sliould declare in whose behalf, or to whose use, he makes the entry. Care should always be taken to make the entry in the presence of at least two or three wit- nesses of unexceptionable character. And it is a very proper and prudent precaution, to have the witnesses put their signatures to a memorandum, stating briefly the fact and the time of the entry. Sect. XIX. The fictitious action of ejectment, where adopted, has in most cases superseded the necessity of an actual entry into lands ; the " con- fession'^'' of the entry being held, agreeably to the practice of the English courts, equivalent to such en- try. Therefore, generally, whenever the party has a right of entry, he may maintain an ejectment, but not otherwise. The principle, as laid down by lord Mansfield, is, " that where an entry is neces- sary to complete the landlord's title, there the confession of lease, entry, and ouster is sufficient ; but that where it is requisite, in order to rebut the defendant's title, as where a fine is to be avoided, an actual entry must be made."^ But incorporeal hereditaments, and things which lie in grant, can neither be divested nor restored by entry. By our statute of limitations, (in conformity to the English statute of 21 Jac. I. c. 16,) no entry shall be made by any person upon any lands, unless 1- Doiisr- 477, Coodrhhl v?, Cator. SEC. XIX.] INTRODUCTIO^N. 47 within twenty years after his right shall accrue ; with certain savings in favour of infants, femes covert, persons non compos mentis, imprisoned, or beyond sea. The English statute of 4 and 5 Anne, c. 16, further provides, *' that no entry shall be of force to satisfy the statute of limitations, or to avoid a fine levied on lands, unless an action be thereupon commenced within one year after, and prosecuted with effect." This provision has not been inserted in our statute. It does not appear to have been adopted by the courts in Massachusetts, before the revolution, and therefore is not applicable to our practice. It seems, how- ever, that an entry, in order to avoid the statute of limitations, must be an entry for the express purpose of taking possession.^ 1 4 Johns. 390, Jacksonys. Schoonmaker ; see Watkin's Law of Descents. 63. CHAPTER I. Of the Remedies for Injuries to Real Property, ivliich amount to an Ouster. Sect. I. Injuries affecting real property, are cliieflv of two kinds. First, Those which disturb the owner in the enjoyment of it, or diminish its value, without depriving him of the possession. Secondly, Those that deprive him of the possess- ion, and usurp his right of dominion over the property. Of the first class are Trespass, Nui- sance, Waste, and Disturbance. The remedies for these injuries are the same with us, as by the law of England ; and with the exception of some slight modifications by statute, the Practice, by which these remedies are enforced, is also nearly the same. The other kind of injury, attended with an amotion from, or usurpation of the possession, is denominated an ouster. It includes, where the subject of it is an estate of freehold. Abatement, Intrusion, Disseisin, Discontinuance, and De- forcement. SEC. I.] REAL ACTIONS. " 49 1. That kind of injury to real property, which is by the common law denominated an abatement, is where a person dies seised of an estate of inheritance, and a stranger wrongfuUy enters and takes possession, before any entry is made by the heir, to whom the inheritance descends, or the devisee, to whom it has been devised. 2. An intrusion is the wrongful entry of a stranger upon the land, after an estate for life in it has been determined, and before any entry by him who has the remainder or reversion. It is indeed the same injury to the remainder-man or reversioner, that an abatement is to the heir or devisee. 3. A disseisin, as has been already stated, is the unlawful act of turning out him who is seised of a freehold, and usurping his dominion over the property. 4. In the ancient law, an estate was said to be discontinued, when, in consequence of some con- veyance made by a person ivhose possession ivas lawful, he who was entitled to it, could not recover his right by entry, but was obliged to resort to an action for that purpose. It was chiefly applied to alienations by husbands seised jure uxoris, ecclesiastics seised jure ecclesice, or by tenants in tail, which are the only instances adduced by Littleton. A discontinuance strictly applies 7 50 - REAL ACTIONS. [cH. I. to those cases only, where a person is dispossessed of an estate of freehold ; and where though he has lost his right of entry, he can recover the possession by action.* 5. The term deforcement is frequently appli- ed to any withholding of real property from him who has a right. But, in its more restricted sense, it is confined to such cases of detention of the freehold from him who iias the right, (but never had possession under that right,) as do not come within the definition of an abatement, intrusion, disseisin, or discontinuance. Such, for example, is the withholding from a widow her dower, to which she is entitled. With regard to all these injuries, we adopt the definitions, and most of the doctrines of the law of England ; while in practice, the remedies to which we resort are more simple, prompt, and efficacious, tlian those which are in use in the English courts. The consideration of these several injuries, with their appropriate methods of redress, which are supposed to present more difficulties to the student, than any other department of legal learn- ing, will chiefly engage our attention in the fol- lowing pages. And we believe we may venture to assure him, that he will find those difficulties 1 Co. Litt. 325, a. n. 1. k SEC. II.] REAL ACTIONS. 51 far less formidable, than he had been led to anticipate. Sect. II. It is scarcely possible to examine, even with the slighest attention, the ancient law of Real Actions, their great variety and strictness of form, and the numerous technical subtilties witli which they are encumbered, without recogniz- ed at once the characteristicks of a scholastick age. In the great favour which was shewn by the judges towards the most captious exceptions, the substantial claims of justice were forgotten, or disregarded. The delays and evasions which were permitted by the law, and encouraged, or at least connived at by the courts, were endless ; so that the abuses practised in the administration of justice, became at last oppressive and intolerable. Instead of attempting to reform these abuses by the interposition of the legislature, the correc- tion of them was left to the courts of law. The limited powers of these tribunals compelled them to resort to fictions, by the aid of which a new remedy was devised. This remedy was eagerly adopted by the suitors, and the ancient forms of proceeding, which had long been the reproach of the law, soon became obsolete. So that in the modern practice of the English courts, with the occasional exception of a icrit of Right, questions of title to real property are now wholly decided by the fictitious action of Ejectment, for the 52 REAL ACTIONS. [CH. I. recovery of a term of years. It may therefore lie useful to the student, if we take some notice pf this remarkable change in the law, by which a mere action of trespass, to enable a lessee for years to recover damages, when turned out of possession, has been transformed into a remedy for the recovery of possessory rights to real property, and in England, has usurped the place of the ancient remedies by ivrits of Entry. Sect. III. It will be recollected, that by the early feudal law, estates for years were unknown. And when the vassals at length obtained from their lords permission to possess certain lands for a limited time, such grants were not considered as a transfer of the title to the land, but merely as contracts between the lord and his vassal. If the latter was deprived of his term, bis remedy for the recovery of it was by the ancient writ of Covenant. But as this writ could only be brought between the original parties to the grant ; if the tenant was dispossessed by the feoffee of his grantor, and not by the grantor himself, he could only recover damages, and not the possession of the land.^ And it was not until the reign of Henry III. that a remedy was provided for a termor to recover possession of his land, and damages, by the writ of Quare ejecit infra terminum.^ After- 1 Brae. 1. 4, c. 36. p. 220. 2 i Reeves' Hist. 341. SEC. III.] REAL ACTIONS. 53 wards, in the beginning of the reign of Edward III. a new remedy was given to the lessee for years by the action of Ejectione jinncB. This new writ was in its nature a writ of trespass, and might be brought in all cases, except only where the lessor had ejected his own lessee, and then made a feoffment to another person. In this case the second lessee coming into possession by title, could not be considered a trespasser ; and the remedy was by the writ of Quare ejecit infra terminum, before mentioned. As neither of these actions suited all the exigences of lessees for years, they next applied to courts of equity for redress, by compelling a specific performance of the contract by the lessor^ or granting against others a perpet- ual injunction.* Soon afterwards the courts of law attempted, by an extraordinary proceeding, to render substantial justice to lessees for years. This was effected by a change of the proceed- ings in the action of Ejectione firmce, and render- ing a judgment that the lessee recover his term, and awarding a writ of possession ; neither of which was prayed for by the declaration, or war- ranted by the form of the writ. The precise time when this remarkable altera- tion took place, and the immediate causes which led to it, are still involved in obscurity ; but the ^ Gib, Eject. 3. 54 REAL ACTIONS. [CH. I. effects were highly important. In consequence of the promptness and efficacy of this new remedy, real actions, on account of the infinite embarrass- ment and delay attending them, gradually fell into disuse ; and the action of ejectment became the regular and usual mode of trying jjossessory titles. Sect. IV. As an ejectment, even after the alteration of its judgment, could regularly only restore the possession to termors, who had been ejected from their lands ; it is manifest that the right to the freehold could be but indirectly deter- mined by it. And the injury complained of, being the loss of possession by the termor, it was neces- sary not only to create a term for the express purpose of commencing the suit ; but that its possessor should be ejected from the land. This was effected by the party who claimed title enter- ing upon the land, and delivering a lease for years to any third person, who remained until some person came upon the land, animo possidendi, (or perhaps even by accident,) against whom the action of trespass and ejectment was brought. Upon the trial, the plaintiff could not obtain a verdict, without proving his lessor's title to the land ; and thus the claimant's title was effectually tried in the name of the lessee. But to avoid the penalty of the old law of maintenance, an actual entry of the lessor was indispensable. And it is SEC. IV.] REAL ACTIONS. 55 from the necessity of this entry, that even at the present day, the remedy by ejectment is confined to cases in which the claimant has a right of entry. It was soon found necessary for the court to prohibit the plaintiff's proceeding against any third person, as an ejector, without giving notice to the tenant in possession, who thereupon applied for leave to defend the action, in the name of the defendant ; which he was always permitted to do, on undertaking to indemnify him. In consequence of this rule, it soon became the practice to have ♦the lessee ejected by some person, (since called the casual ejector,) and to give notice in the first instance, instead of making him the trespasser. Still difficulties existed about the leases, and mak- ing entries, especially where the lands claimed were in possession of several persons.* But no remedy was provided until the time of the Protec- torate, when Rolle C. J. devised a method of proceeding which superseded the ancient practice at once. This was done by dispensing with all the real proceedings which have been mentioned, and introducing in their place a number of fictions, by which the defendant agrees to admit on the trial, the making of the lease to the plaintiff, that he entered under it, and has been ousted by the 1 Co. Litt. 252, b ; Palm. 402. 56 REAL ACTIONS. [CH. I. defendant ; and that he will at the trial only rely upon his title. It is rather singular, (as Mr. Butler has observed.) that real actions should have gone so much out of use in the English courts ; as many cases must have frequently occurred, in which a writ of Ejectment was not a sufficient remedy.^ In a few such cases, writs of Right have been resorted to ; but the demandants, who have always found many obstacles in their way, have not very often prevailed.^ With man}'^ enlightened men in England, it has been a subject of regret, that the fictitious proceedings in the action of ejectment should have so long remained unaltered; since no possible inconvenience could result from a change being made by the legislature, so that the freehold should be recovered instead of a term. It is a sufiicient reason for such a change, that no client can possibly, be made to understand these fictions. Nothing surely is more absurd, than needlessly to involve in mystery, the proceedings by which justice is intended to be administered.^ 1 Co. Litt. 239, a. n. 1. 2 3 Wils. 419, 541, Tissen vs. Clark ; 2 Black. 1266, Luke vs. Harris ; 1 H. Bl. 1 , Dally vs. King ; 2 B. & P. 570, Dotc-- land vs. Slade ; 3 B. &, P. 453, Dumsday vs. Hughes ; 2 N. R, 429, Maidment vs. Jukes ; 5 Taunt. 326, Jayne vs. Price. ^ See Bar. on Stat. 101, note o. SEC. v.] REAL ACTIONS. 57 Sect. V. In the administration of this depart- ment of the law in our own country, it will be found, that not only frequent alterations have been made ; but that great diversity of practice still prevails, in the courts of the different states. In all of them, most of the great principles of the common law, respecting real property, are recognised, as far as is com- patible with the rejection of the feudal doctrines of tenure. But the legal remedies, by which those principles have been applied to the vindica- tion of private rights, and the redress of this class of injuries, have been almost infinitely varied, to accommodate them to local circumstances, and the different views of improvement or convenience, which have been entertained by the state legis- latures. To this great variety of legal remedies, even the national judiciary has been compelled, in some measure, to give its sanction, by the neces- sity of adopting the local practice to a considerable extent in the diflerent circuits. For although that high tribunal has expounded its judicial power, of giving remedies at law and in equity^ to be not according to the practice of the state courts, but according to the principles of common law and equity, as defined and distinguished in England, from whence our jurisprudence was derived : still it adopts the general principle of piiblic law, that remedies in relation to real 8 58 REAL ACTIONS. [CH. I. property, are to be pursued according to the lex rei sitcE, the law of the place where the property- is situated.^ It would not perhaps be of much use to those, for whose benefit this work is chiefly designed, (if it were practicable,) to point out the various remedies and modes of proceeding, which have been adopted in the several states. And with regard to some of them, it would require a more accurate knowledge of the established practice, than their reported decisions enable us to obtain. In most of the states, the practice has been very different at different periods of their history. Many of the changes which have taken place, have long been forgotten ; and it would now be difficult, if not impossible, to recover and retrace them. Still, there are perhaps no subjects of historical research, which possess higher interest with the ingenuous and incpiisitive student, than those which relate to the early judicial institutions and proceedings of our ancestors. On this occa- sion it will only be proper to refer to a icw of the well known facts, respecting their character and history, which are connected with the progress and present state of our jurisprudence. Some further particulars, drawn from the early records of our courts, illustrating the history of the Law and 1 3 Wheat. 212, Robinson vs. Campbell. SEC. VI.] REAL ACTIONS. 59 Practice of Real Actions, from the infancy of our judicial institutions to their present state of matu- rity, will be found in another place. ^ Sect. VI. The crown of E^igland, it is well known, claimed a great part of this country, by the right of discovery. And it is a principle asserted by that government, and sanctioned by judicial authority, that where a country is discovered and planted by British subjects, all the laws of the realm then in force are the birthright of such subjects ; and the obligation of those laws continues, so far as they are applicable to the condition of an infant colony.^ Accordingly, the founders of the American colonies considered that they brought with them to these shores the prin- ciples of the common law of Efigland, which they claimed as their inheritance, and acknowledged as the basis of their civil rights and obligations. By the charter of Massachusetts Bay, granted by Charles I. in 1628, the colonists held their lands of the king, " as of his manor of East Greenioich in the county of Kent, in free and common socage, and not in capite, nor by Knighfs service.'''' Whether this clause was inserted at the request of the colonists does not appear. But the grant was probably intended to create that peculiar ^ See note A at the end of this volume. 2 2 P. W. 75; 2 Salk. 411, 666 ; 1 Bl. Com. 107. 60 HEAL ACTIONS. [CH. I. tenure, Avhicli prevailed in the county of Kent, denominated Gavelkind, which is generally ad- mitted to be a species of socage tenure.^ It does not seem probable, that the rules of descent according to that tenure were ever established. " The insolent prerogative of primogeniture," as Gibbon calls it, was however disallowed, though some of the colonists were inclined to favour it. The leading persons among them, perhaps with more piety than political a^ isdom, were de- sirous, on all occasions, of introducing the provis- ions of the Jewish code into their law. And those who were disposed to support, in some measure, the claims of promigeniture ; drew from that source, as they thought, an unanswerable argument in its favour. By their charter, they were authorized to make laws and ordinances " for the government of the said lands and plantation," " not repugnant or contrary to the laws and statutes of the realm of England^ But they manifestly had no au- thority to change the law of descent. Yet an ordinance of 1641 directs the court of the jurisdic- tion where any deceased person had his last resi- dence, to assign to the widow such part of his estate as they should judge just and reasonable, and also to the children or other heirs their several 1 Wright's Ten. 211 ; 2 BI. Com. 85. SEC. VI.] REAL ACTIONS. 61 proportions of the estate : Provided, that the eldest son should have a double portio7i, and where there were no sons, the daughters should inherit as coparceners ; unless the court, upon just cause alleged, should otherwise determine. From the discretion vested in the courts, it would seem that the law of descents was not at that time settled with much precision. However that might have been, no further legislative provision was made, until after the receipt of the charter of William arid Mary in 1692 ; and the law which gave a double portion to the eldest son was not repealed until 1789.* The obligations of feudal tenure are no where recognised by their laws. The first legal tribunals of the colony were formed upon a plan of almost patriarchal simplicity. The legislative and judicial functions were gener- ally united in the same persons.^ The forms of judicial proceedings were for a considerable time but little known or regarded. Plain and simple in their characters and manners, our ancestors made simplicity and plainness the most striking feature of their civil as well as religious institutions. Rejecting with disdain every thing that savoured of idle ceremony, in the administration of the law, or impeded their characteristick promptness of decision, they tolerated no delays in judicial pro- ^ Stat. 1789, ch. 2. 2 Mass. Col. Ordinances, 1632, 1644. 62 REAL ACTIONS. [CH. I. ceediiigs, which the claims of justice did not im- periously demand. At length lawyers who had been educated in England obtained some of the chief offices in the colonies, and gradually introduced the practice of the English courts, or incorporated some part of it with the local usages of the country. This however was less the case in Massachusetts, than some of the other colonies, where the courts were not only organized, and justice admhiistcred upon the British plan, but the same circuitous system of conveyancing was also introduced, that still prevails in England. It is certainly somewhat remarkable, tjiat while not only the courts of New York, (where the English practice has been most strictly adher- ed to,) but those also of several of the other states, have adopted, either wholly, or with certain modi- fications, the course of trying questions of title to leal property, by the personal action of Ejectment; writs of Entry and other real actions, (which had become nearly obsolete in the parent country, before the settlement of the colonies,) are the common remedies in our courts. Still we believe it must be admitted by those who are competent to decide, that real actions, stripped as they are in our practice, of the cumbrous appendages of Essoins, Protections, Aid-prayers, Vouchers, and Parol demurrers, (to be noticed hereafter,) which SEC. VII.] REAL ACTIONS. 63 made them intolerable, and finally caused them to be abandoned in their native country ; they are ad- mirably adapted to the advancement of justice, and to the correct and effectual decision of questions of title to real property. Sect. VII. The legal remedy for an injury to real property, amounting to an ouster, is either by entry of the owner upon the land, or by action at law. In most cases the law gives to the injured party both a right of entry and a right of ac- tion. But in some he has a right of action, though he cannot lawfully enter ; in others he may enter, but cannot maintain an action until such a entry is made.* It will be convenient therefore to point out, before we proceed to the consideration of the several remedies, some of the principal cases to which these distinctions apply. In doing this we shall have occasion, not only to refer to several of the leading doctrines which were discussed in the introduction, but in some measure to apply them to the present subject. For since the remedy for the injuries which we are now considering, consists in the restoration of the seisin to him who has the right, and from whom the seisin has been wrongfully wrested or withheld ; the first inquiry is, ivheii and by what means he has been deprived of it. The nature of 1 Co. Litt. 249, a. 64 REAL ACTIONS.. [CH. I. the wrong determines the nature of the remedy by which that wrong is to be redressed. Sect. VIII. First, it will be recollected, that the rightful owner in all cases of abatement, intru- sion, and disseisin, may make a formal and peaceable entry upon the lands of which he has been ousted, and thereby acquire or revest the seisin in himself. Or he may pursue in the first instance, the more effectual remedy of a suit at law.* The right of entry by the owner, may however be tolled or lost in several different ways ; and when this happens, his only remedy is by action. Thus the abator, intruder, or disseisor may alien the property ; and the alienee, coming in by title, will not be liable to have that title defeated by the summary method of entry. The same rule holds where the lands have descended upon the heir of the party who committed the wrong.^ But to the generality of this rule, the common law made an exception in favor of the claimant, who, during the life of such wrongdoer, was under the disability, either of infancy, coverture, insan- ity, imprisonment, or absence from the country. The same exceptions are made likewise by our 1 Co. Litt. 57, b ; 3 Bl. Com. 175. 2 Gilb. Ten. 21, 23 ; Co. Litt. 237, b. SEC. VIII.] REAL ACTIONS. 65 Statute of limitations.^ The indulgence of the law in none of these cases, considers the omission to enter, as the laches or fault of the party : and he may enter upon the heir to whom the lands have descended, as he might have done upon the ancestor, who committed the wrong. ^ Another exception was made by the stat. 32 H. VIII. ch. 33, (which, though not reenacted, seems to be adopted as a part of our common law,) by which it is declared, " that where one person disseises or turns another out of possession, no descent to the heir of the disseisor shall take away the entry of him V. ho has the right to the land, unless the disseisor has peaceable possession five years after the disseisin, without either entry or claim." This provision of the statute is said to be res- tricted, according to the terms of it, to a disseisor only ; and that it shall not be so expounded as to include either an abator or an intruder, nor the feoffee or donee, immediate or mediate, of even the disseisor himself The reason assigned for this strict construction is, that the statute, to some purposes, is penal.' But though only the disseisee and his heir are mentioned, yet it is held that the successor is entitled to enter, where his predeces- 1 Stat. 1786, ch. 13, § 4. 2 Litt. § 402. Co. Litt. 246, a; 1 Co. 140. 3 Co. Litt. 238, a ; 256, a; Plowd. 47. 9 66 REAL ACTIONS. [CH. I. sor has been disseised, and a descent cast within five years, in the same manner as the heir, upon the diseisin of his ancestor.^ It is here important to call the attention of the student to a distinction which should be kept in mind, between a right for Avhich the law gives a remedy by action, as well as entry ; and a title, as lord Coke calls it, for which the law gives no remedy by action, but only by entry. In the first case, where there is a remedy by action or entry, the right of entry may be tolled by a descent. But in the other case, where the party has only a condition, and a right by entry, and in no other ivay, to take advantage of the breach of the con- dition, no descent can take away this right of entry : for if it could, his right would thereby be barred forever.^ It is manifest that the disseisin intended by the statute of II. VIII. is an actual disseisin by the tortious expulsion of the true owner. This is indeed the primitive and genuine meaning of the term, and in this sense it is always to be understood, when applied to a descent cast. A mere entry upon another, is no disseisin, unless it is accompanied by an expulsion, or ouster from the freehold. Disseisin is the acquiring of an estate by ivrong and injury ; and therein it 1 Plowd. 47 ; Co. Litt. 238, a. 2 Co. Litt. 200, b. SEC. VIII.] REAL ACTIONS. 67 differs from dispossession, which may be either rightful or wrongful. This is the uniform doctrine of the best authorities.* If therefore a party relies upon title acquired by disseisin, and a descent from the disseisor to himself, or to one under whom he claims title, he is bound to shew that the seisin of him, from whom the descent is claimed, was tortious.^ The owner's right of entry may also be lost or barred by our statute of limitations,^ which, in conformity to the English statute,^ pro- vides that no person, unless by judgment of law, shall make any entry into any lands, tenements, or hereditaments, but ivithin tiventy years next after his right or title first descended or accrued to the same. But it also contains, in all the cases of disability before mentioned, a saving of the further term of ten years from the time such disability shall cease or be removed. It has been before remarked, that by the Eng- lish statute 4 & 5 Ann. ch. 16, even such an entry within twenty years would not avail the party, unless he should commence his action within one year after such entry, and prosecute the same with 1 See Litt. § 279;Co. Litt. 18, b; 153, b; 181, a; Cro. Jac, 683 ; 1 Burr. 109, Atkyns vs. Horde. 2 6 Johns. 217, Smith vs. Biirtis. 3 1786, ch. 13, § 4. ". 21 Jac. 1 ch. 16. Go REAL ACTIONS. [cil. 1. effect. But this provision has not been inserted in our statute of limitations, or adopted in the practice of our courts. Still however it seems, as was before intimated, that an entry, which shall be available to avoid the statute of limitations, must be a formal entry for the express purpose of taking possession, and not a mere casual going upon the land.^ Sect. IX. Second. With regard to a dis- continuance^ (if any case of it now exists in our law,) it will be recollected, that according to its definition, it consists in the inability of the owner to restore his right hy entry, and his being com- pelled to resort to an action to enforce it. The injury in the case of a discontinuance^ and also of a deforcement, which we are next to consider, does not arise from a lorongful entry upon the estate, (as in the cases of abatement, intrusion, and disseisin, just mentioned ;) but the wrong consists in detaining or withholding the possession after the right of the tenant has ceased or been determined. The three cases of discontinuance adduced by Littleton,^ arc the following, viz. 1. The alien- ation of the husband, who was seised in right of his wife, was at the common law, a discontinuance ^ 4 Johns. 390, Jackson vs. Schoonmaker. 2 § 593, 594, 595. SEC. IX.] REAL ACTIONS. 69 of the wife's estate. 2. The alienation of eccle- siastics seised jure ecclesice, i\s a bishop, or dean without the consent of the chapter, was also a discontinuance. 3. Alienations by tenants in tail in certain cases. As if tenant in tail made a feoffment in fee simple, or for the life of the feoffee, or SLgift in tail. In all these cases, though he exceeded the limits of his legal authority, wdiich extended only to the granting of a lease for his own life : still as the entry of the feoffee was lawful, he might rightfully continue to hold, during the life of the tenant in tail, who made the feoffment or gift. But if he retained the possession after the death of the feoffor or donor, it was a discontinuance of the estate tail. Neither the heir in tail, nor the remainder-man or reversioner, who were entitled, after the determination of the estate tail, could now recover their rights bi/ entry, but were compelled to resort to their action.^ The first of these cases of discontinuance was long since taken away in England by the statute 32 H. VIII. ch. 22 ; and the second by statutes, 1 Eliz. ch. 15, and 13 Eliz. ch. 10, which declare such conveyances void ab initio. And as to the last, it may be observed, that our own statute of 1791, ch. 61, by authorizing tenants in tail to convey in 1 Co. Litt. 326, b. 70 REAL ACTIONS. [CH. 1. fee simple^ and thereby bar, not only the claims of the issue, but the rights also of the remainder- man and reversioner, has put an end, in our law, to discontinuances by tenant in tail. It seems, therefore, that not only in Massachusetts, but in every part of our country, where estates tail havQ been either abolished, or tenants in tail are author- ized to convey an estate in fee simple, no case of a discontinuance of the freehold, in the strict import of that phrase, can any longer exist. It may not be amiss, however, to call the attention of the student to an important difference between the situation or title of him, who claims to hold by conveyance from one whose alienation formerly created a discontinuance, and him who claims as heir or alienee of a disseisor. For since the heir and alienee of a disseisor claim under a person who came into the estate by a ivrongful titles their estates are immediately defeasible. But iii the other case, the alienee claims under a person who had a lawful estate : and though he has undertaken to convey a larger estate than the law allows ; yet as his conveyance does not create a forfeiture, the estate of his grantee is unimpeach- able during the life of the grantor.^ Sect. X. Third. Generally upon a deforce- ment, according to the ancient doctrine, the owner 1 Go. Litt. 325, a. n. 1. SEC. X.] REAL ACTIONS. 71 of the estate could not enter, but was driven to his action. For since in most cases of this kind, as well as in those of a discontinuance, the original entry of the tenant was lawful, and an apparent right of possession was thereby acquired, the law would not suffer that right to be defeated by the mere act of the lawful claimant, in entering upon the land.^ Thus if a man marries, and during the coverture is seised of lands, which he aliens and then dies, or is disseised and dies, or even if he dies in possession ; and the alienee, disseisor, or heir, enters upon the lands, and refuses to assign dower to the widow, this is a deforcement. For this injury or denial of right, she has no rem- edy by entry, but is driven to her writ of dower.^ In this case she has no means of redress by an Ejectment, even in England : for that action can be maintained, only where the plaintiff may law- fully enter.^ By the common law, if lands were leased for years, or during the life of some third person, and the lessee held over after the term was determined, either by lapse of time, or by surrender, or the death of cestui que vie, this was a deforcement, 1 3 Bl. Com. 175. 3 Co. Litt. 37, a; 1 Cruise 159; F. N. B. 147, Mass. Stat. 1783, ch. 40. * 2 Show. 184, Chapman vs. Sharp. 72 REAL ACTIONS. [CH. I. and the reversioner or remainder-man could not restore his right by entry. ^ But by the law of this state, if tenant pz^r autei^ vie, continues in possess- ion after the determination of his estate, he is considered a tenant at sufferance only ; and he who has the remainder may lawfully enter upon such tenant, and even upon his heir.^ It is a general rule of law, that though a de- visor die seised, his devisee is not therefore seised, until he makes an entry, or some other act is done, which in law is considered as having the effect of an entry. The same rule applies to a remainder- man, because he, like the devisee, comes into the estate as a purchaser. But if the possession be vacant, an entry is not necessary ; because an entry can be of no vail, where there is no person in possession upon whom to enter. So also if a stranger is in possession, acknowledging the title of the devisee, or of him who has the remainder, it will be held equivalent to an entry .^ Sect. XI. Fourth. According to the doc- Uine of lord Mansfield, in Taylor vs. Horde, '^ the only case in which the true owner may enter, though he cannot maintain an action, by the modern law and practice of Enghmd, is the entry to bar 1 Finch, L. 137 ; [41 b ;] F. N. B. 201. * 9 Mass. R. 377, Martin vs. Woods. » 4 Mass. R. 67, Wells vs. Prince. * 1 Burr. 112. SEC. XI.] REAL ACTIONS. 73 a fine with proclamations. The same doctrine is also held by the courts in New York} The general principle before referred to,^ is that when the entry is required, only to complete the claim- ants' title, as when a power of re-entry is reserved for the breach of any condition in a lease or grant, the common consent rule, as it is called, by which the defendant agrees to confess the lease, entry and ouster, will enable the plaintiff to maintain his ejectment, without any actual entry upon the land, for the recovery of which the action is brought. But when the entry is required to rebut the de- JendanVs title, as in the case before mentioned of an entry to bar a fine, the confession of an entry will not avail. There must be an actual entry upon the land before an action can be sup- ported.^ In every other instance, (where the fictitious action of ejectment is adopted in practice,) the formal confession of the lease entry and ouster has been held sufficient, without the ceremony of an actual entry. But in the practice of Massachusetts, (where the usual remedy for the recovery of real property is a writ of Entry ;) and indeed in the practice of all those courts in our country, where the defendant in ejectment does not confess upon the 1 1 Johns, cas. 125, Jackson vs. Crysler. 2 Introd. § 19. ^ Doug. 477, Goodright ex d. Hare vs. Cator. 10 74 REAL ACTIONS. [CH. I. record, the supposed lease, entry, and ouster, the law is different, in consequence of the different form of the remedy. Thus upon the breach of a condition in a conveyance of real property, the feoffor, grantor, or his heirs, become entitled to the estate to which such condition is annexed. But no action can be brought for such a breach before entry. Tlie only mode in which advantage can be taken of it, (at least in the case of a free- hold estate in lands,) is by an entry upon the land ; after which he may resort to his action if necessary.* But when the party who is entitled to take advantage of the breach of such condition, is already in jjossession, and therefore cannot enter, the estate will revest in him immediately, upon breach of the condition.^ It should be observed, that in this case an entry by a stranger, on behalf of the person entitled to enter, has been held sufficient without any preceding authority ; if it be afterward assented to or ratified by such party.^ Sect. XII. It has been mentioned that one of the remedies, provided by the law, for injuries to real property amounting to an ouster, was by the open and peaceable entry of the rightful owner. 1 5 Mass. R. 324, L. 4* K. Bank vs. Drummond ; 2 Cruise, 49- 2 Ibid; Co. Litt. 218, b. 3 2 Stra. 1128^ Fitchet vs. Mams. SEC. XIII.] REAL ACTIONS. 75 It is not however to be understood, that the entry of the owner, is an adequate and effectual remedy in all cases of ouster, where the right of entry is not lost. If upon the entry of the lawful propri- etor, whose entry is not taken away, the party, who has acquired the seisin by wrong, chooses voluntarily to relinquish it, and to yield to the title of the rightful owner, his seisin will be revested by such entry, and the remedy is com- plete. This conciliatory disposition, however, is not often manifested on such occasions. If then, (as is generally the case,) the wrongdoer, not- withstanding the entry of the rightful proprietor, still pertinaciously retains the possession against him, or resists his entry, such resistance is an ouster and disseisin, upon which an action may be maintained. And if the party so entering has a good title to the land, as well as a right of entry, the party, who thus holds him out, cannot qualify his own ivrong, by claiming to hold only as ten- ant for years or at will to some other person.^ The effect of such an entry is only to acquire a momentary seisin by the rightful owner ; and he is still driven to his action at law for an effectual remedy. Sect. XIII. In one point of view, however, it is material to consider the effect of this seisin 1 12 Mass. R. 325, Proprietors ^c. vs. McFarland. 76 REAL ACTIONS. [CH. I. for a moment, thus acquired by the entry of the the rightful owner upon the party who committed the ouster. If tlie party by whom the entry is made was actually seised, before the ouster com- mitted by him on whom he entered, the momenta- ry seisin acquired by such re- entry is wholly inop- erative. But on the other hand, if he has never before been seised of the estate, but now first makes his entry, (either as heir, devisee, remainder- man, or reversioner, or for breach of a condition,) the effect of such entry may be highly important. For though the seisin thereby acquired is but a seisin for an instant ; yet the act of the tenant in opposing his entry, or withholding the possession from him, amounts to a disseisin.* And this gives the party who thus enters, the right, if he elects to to avail himself of it, to change the form of his remedy by action. To make this subject more intelligible to the student, it may be useful to mention here, what there will be occasion to state more fully hereafter ; that in every writ of Entry, it is necessary to allege with precision the nature of the injury com- plained of; that is, whether the party against whom the action is brought, entered, and commit- ted the wrong, as an abator, intruder, or dissei- sor. If the complaint is against the tenant as an * 12 Mass. R. 325, Proprietors <^c. vs. McFarland, SEC. XIV.] REAL ACTIONS. 77 abator^ the count must state whether the demand- ant is heir or devisee; if an intruder, whether the claim is by the remainder-man or reversioner ; and if the complaint charges the tenant as a disseisor, it must set forth whether the disseisin was done to the demandant, or to his ancestor. But if the demandant can lawfully enter in any of these cases upon the abator or intruder, or upon the disseisor of his ancestor, he thereby vests the seisin in himself. The effect of such entry is to put an end to the first ouster ; and if the wrongdoer still retains the possession after the entry, it is a new disseisin of the party so entering. And the rem- edy may now be changed from a writ of Entry against the abator, or intruder, or the disseisor of the ancestor, to a writ upon a disseisin done to the demandant himself. This change of the rem- edy, it is however to be understood, is always at the election of the demandant, who may at pleas- ure waive the effect of his entry, and pursue his remedy in the same manner as if he had not en- tered.* Sect. XIV. But the remarks which have just been made must be understood as applying only to the remedy by ivrit of Entry, according to the present practice of the courts in Massachu- setts, and some of the adjoining states. Or rather 1 Booth 84 ; and see Litt. § 478 ; Co. Litt. 278, b. 78 REAL ACTIONS. [CH. I. they are not to be understood, as applicable to proceedings, where the remedy for the recovery of real property is by the modern action of Eject- menty according to the present practice in Eng- land, and in the state of New York. This form of proceeding, as has already been stated,^ sup- poses a wrong to the lessor of the plaintiff, not indeed by an act done to himself, but by the ex- pulsion of his supposed lessee by a stranger, against whom the action is brought ; and notice of the action is given to the tenant, who is in possession of the land. The tenant is permitted to defend tlie suit, only upon consenting: to a condition requir- ed by the court, that he will confess lease, entry, and ouster : that is, he must admit a lease to have been made, by the party who claims title, to the supposed or nominal plaintiff, who has entered under that lease, and been afterwards ousted by the supposed defendant. The tenant must also agree, that in the trial of the issue, he will insist only on his title. ^ It is manifest, therefore, that if the lessor of the plaintiff had a lawful right to enter upon the land in dispute, at the time he commenced his ejectment, he might of course make a valid lease of it. Consequently, this confession of an entry, ^ Ante, § 2, of this chapter. 2 Ad. on Eject. 233 : 3 Bl. Com. 202. SEC. XIV.] REAL ACTIONS. 79 for all the purposes of trying the question of title between the parties, has precisely the same efifect as an actual entry} But if the right of entry was taken away, before the action of ejectment was commenced, either by the statute of limita- tions, or any other means, so that the lessor of the plaintiff could not lawfully have entered, the confession of an entry would be of no avail. For since an actual entry in such a case would have been a trespass against the tenant ; the confession of an entry would only amount to an admission by the tenant, that the lessor of the plaintiff was a trespasser.^ And as no person by the ancient law was permitted to make a lease for years, any more than a conveyance of a freehold, unless he was in possession of the property leased ; hence the reason that an action of ejectment cannot be maintained, even by one who has the right of property^ unless he has also a riglit of entry. And hence also it follows, that wherever an action of ejectment can be maintained, the form is alioays the same, whatever may be the nature of the ouster, whether an abate7nent, an intrusion, or a disseisin : and if a disseisin, whether done to the party who sues, or his ancestor. In this res- 1 Doug. 485, Goodright vs. Cator ; 1 Johns. Cases, 125, Jackson vs. Crysler. 2 1 Burr. 119, Taylor vs. Horde. 80 REAL ACTIONS. [CH. I. pect, the remedy by ejectment is totally different, from the more ancient course by writs of Entry, which, as we have seen, were minutely varied, so as to adapt them in every case, to the partic- ular nature of the title, and also of the injury. Sect. XV. Before we proceed to the consid- eration of the several classes of Real Actions, adopted in our practice, it may be useful to notice a distinction between real and personal actions, in regard to the effect of ?i former judgment, in bar- ring or binding the parties, when a subsequent action is brought for the same cause. In personal actions, as debt, covenant, assumpsit, trover, tres- pass, and the like, a judgment against the plaintiff upon demurrer, confession, or verdict, is gener- erally a perpetual bar. Those cases only form an exception, in which the remedy has been mis- conceived ; as where trespass has been brought by mistake instead of trover, or where the plaintiff has misstated his cause of action, and the defend- ant demurs, and has judgment in his favour.^ In these cases, if a second action is brought, in which the former misstatement is corrected, and the for- mer judgment is pleaded in bar, the plaintiff may reply that the former judgment for the defendant was not obtained upon the merits.^ ■1 2 Saund. 47, 1. note. ^ j chit Plead. 195. I SEC. XVI.] REAL ACTIONS. 81 But even where the cause of action is misstat- ed, if the defendant pleads, and the phiintiff takes issue, and has a verdict against him in a personal action, he is estopped to bring a fresh suit. In such a case, to prevent the eifect of the judgment, in barring a future action, the only re- source of the plaintiff, is to obtain leave to discon- tinue or become nonsuit. This the courts usually grant, upon payment of costs to the defendant, even after verdict, if the plaintiff appears to have a meritorious cause of action. Sect. XVI. In real actions the law is other- wise. Remedies of this kind are not, like personal actions, all of the same order. They are of dif- ferent natures or grades, rising one above another. And if a demandant be barred in a real action, by judgment upon a verdict, confession, or demurrer, he may still have an action of a higher nature, and try the same right again. The reason assign- ed for this indulgence is, because it concerns his freehold and inheritance.* A demandant, who was barred in an Assize of 7iovel disseisin, might maintain an Assize of mort d^ancestor, or Entry sur disseisin of his ancestor. So if he was bar- red in any writ of Entry of his own seisin, or the seisin of his ancestor, he might maintain his writ of Right for the same property. And the reason •^ 6 Co. 7, b, Ferrer's case. 11 82 REAL ACTIONS. [cH. I. why a judgment in the first action against the demandant, cannot be pleaded in bar of the second is, that the last is of a higher rank or grade than the first. It is even held, that a judgment against the demandant in a Formedon in the descender, is no bar to a Formedon in the reverter, or remain- der ; because the latter are of a higher nature than the former ; since an estate tail only is recoverable by a Formedon in the descender, and by the others the fee simple.* Whether all these distinctions would be adopt- ed by our courts, may perhaps be questionable. No occasion has probably occurred to call forth a decision upon some of them. But it has always been settled in our practice, that a judgment against the demandant in any writ of Entry, is no bar to his maintaining a loiit of Right. This suggests a caution to the practitioner, not to resort to a writ of Right, ^\ here a Avrit of Entry may be brought ; so that, if through accident, or any unforeseen occurrence, he should fail in the first suit, he may still have a remedy in reserve. Sect. XVII. The preceding remarks, it will be recollected, do not apply to the modern remedy by trespass and ejectment, as practised in Eng- land, and in some parts of our own country. No judgment in that action can bar either plaintiff ^ 6 Co. 7, b, Ferrer's case. SEC. XVII.] REAL ACTIONS. 83 or defendant from suing again, and thus protract- ing litigation, to the impoverishment of the parties, if not to the reproach of the law. Whether the party ha.s failed through some unforseen accident, or from a restless spirit of litigation, he is inclined after one failure, to try the experiment of a second suit, it is always in his power to do so. For as the judgment in ejectment confers no title to the freehold upon the party in whose favour it is given, it consequently is not evidence of title in a subsequent action, even between the same par- ties.* It is manifest, therefore, that the judgment can never be final ; and that it is alwavs in the power of the party who fails in the suit, whether plaintiff or defendant, to bring a new action. For since a different demise may be stated in every new action, it never can a.pi^ear judicially to the court, that the second ejectment is brought for the same cause of action as the first. Application, it seems, has sometimes been made to the court of Chancery, by the party pre- vailing, after several ejectments determined in his favour, for a perpetual injunction. This has generally been refused by that court. But in one case, after such a refusal by the court of Chance- ry, upon appeal to the House of Lords, the in- junction was granted.^ 1 Bui. N. P. 106 ; 1 Mod. 10, Clerk vs. Rowell 4' Phillips. 2 1 Bro, P. C. 270, Earl of Bath vs. Sherwin. REAL ACTIONS. [CH. II. CHAPTER II. The Nature of Real Actions and their Incidents. Sect. I. Real Actions are the remedies provided by the ancient law, for him who had right or title to lands or tenements, the pos- session of which was unjustly withheld or wrested from him. By these actions the right- ful owner, (here called the demandant,) might recover his possession, according to the nature and circumstances of the injury he had sustained. And the several remedies which the law has pro- vided, derive their names, either from the princi- pal point stated in the writ, or the nature of the wrong to be redressed. Real actions are divided into Actions possess- ory, and Actions droitural. The first class is again subdivided into possessory actions upon the demandant's own seisin, and possessory ancestrel, upon the seisin of some ancestor. Droitural actions are where the party can no longer recover by writ of Entry, or where for some other reason he does not claim upon the possessory title, but the right ; and the remedy in this case is by writ of Right. SEC. I.] REAL ACTIONS. 85 These several remedies rise one above another, as has been ah-eacly observed, according to the nature of the wrong which has been inflicted, or the right to be restored. Thus if A. is disseised by B., while the possession continues in B., it is a mere naked possession, unsupported by any rght. A. may, therefore, as we have seen, by entry on the lands, without any action, restore his possession, and put an end to the possession of B. But if B. dies, the possession descends by act of law upon his heirs. In this case, as the heirs come in by lawful title, they acquire in the view of the law, an apparent right of possess- ion. This title is so far good against the person disseised, (at least if the disseisor had possession for five years before his death, without entry or claim by the disseisee,) that he has now lost his right to recover the possession by entry, and can recover it only by an action at law. For this purpose the possessory actions above mentioned are resorted to, and the writs by which they are instituted, are called ivrits of Entry. But if A. permits the possession to be withheld from him beyond the period limited by the law, (which with us is thirty years,) or if judgment is recovered against him in a possessory action, either upon a default or a trial of the merits ; in these cases B's title is strengthened in the eye of the law, and A. can no longer recover by a possessory 86 REAL ACTIONS. [CH. II. action, but is compelled to resort to his writ of Right. This is his last resort : so that if he fail to commence his writ of Right within the time limited, (Avith us forty years upon the seisin of the ancestor, or thirty years upon his own seisin,) he is now without remedy, and conse- quently the title acquired against him by ivrong^ becomes complete and indefeasible.^ As the party injured Las in many cases an election of remedies, he should of course always choose the writ which is of the lowest nature. For although judgment against the demandant in a real action is a bar to another of the same, or an inferior grade, it is no bar, as was before re- marked, to one of a higher nature. If the de- mandant has brought a writ of Entry, and has been cast, either in consequence of some unexpect- ed objection, or accidental occurrence, or upon a full trial of the merits, though it is a bar to suing a new writ of Entry, it is no bar to a writ of Right. And the reason is, that the tenant's having a better subsisting title, (which is all that a recovery in a writ of Entry is evidence of,) is no defence in a writ of Right. That writ draws in question, not the title only ; but the inere rights also of the parties to the suit.^ The demandant 1 See Co. Litt. 239, a. n. 1. 2 8 Cran. 229, Greeti vs. Liter. SEC. II.] REAL ACTIONS. 87 therefore should not resort to his writ of Right, while he has a remedy by writ of Entry. Sect. II. Real actions by the ancient law, as well as by our own, were always local, and therefore must be brought in the country, where the land demanded lies.* If the demandant's writ is sued in a wrong county, and this is appar- ent up 07i the face of the writ, the court will quash it on motion. But when not apparent, it must be pleaded in abatement.^ Formerly, if the land was in several adjoin- ing counties, an Assize must have been brought in conjinio comitatiis, and should so be stated in the writ.^ But that seems not to have been the practice in real actions generally. It is also necessary to allege in the writ where the land lies, for the recovery of which the action is brought. And here a distinction was once made between writs of Entry, and writs of Right, on the one hand, and Assize or Dower on the other. The former were required to state the town, vill, or place, (not a hamlet,) where the lands sued for were situated. In the latter it 1 Bract, lib. iv. c. 20, fol. 189. 2 7 Mass. R. 461, HflTsyfees Sr al. vs. Inhabitants ofKennebeck; 10 Mass. R. 176, Gage vs. Gnnnet 4- «/. 3 35 H. VI. 30. 88 REAL ACTIONS. [CH. 11. might be described as being in a hamlet.^ This distinction, however, has long since ceased even in England. In our practice, if the land sued for is within the limits of any town, district, or other incorpo- rated place, it should be so stated ; if the place is unincorporated, any name or description by which the place is generally known, will be sufficient. Formerly it was held necessary to observe a particular arrangement of the things demanded in a real action. The more wortliy were to be placed before the less ivorthy, and an entirety before a iuoiety or other part. Land with a dwelling house was to be demanded before land without a building ; and a castle before another messuage, or even a manor.^ There is a manifest propriety in observing this order of arrangement ; but a departure from it would not, as it once did, hazard the abatement of the writ. Another nicety of ancient times, for which the writ was abateable, was denominated bis peti- nm. It was where the same thing was twice demanded in the writ. Thus if the writ demand- ed a manor, and also a rent, or an advowson which was parcel of the same manor, it abated the writ.^ 1 8 Edw. IV. 36 ; 17 Edvv. III. 56. * 1 Ed. III. 4; 7 H. VI. 39. ^ 3 Ed. III. 85 ; 6 Ed. III. 267. SEC. III.] REAL ACTIONS. 89 As the freehold is demanded in all real actions, it follows of course that the tenant, against whom the suit is brought, must be seised of a freehold, or he may defeat the demandant by pleading non tenure, as it is called.^ And if the tenant, against whom a writ of Dower or other real action is brought, is not in the actual possession and occupancy of the lands demanded, it is required by our law that the person in possession should be served with a copy of the writ, or original summons, or by having it read to him by the officer, or the writ shall abate.^ This exception however must be taken by plea in abatement, and cannot be made by way of motion or suggestion, to the court. Sect. III. The original writ, which was sued out of Chancery, in Real actions, was gener- ally a PrcBcipe quod reddat. Its form was a direction to the sheriff to command the tenant, that he render the lands in question to the demand- ant. And unless he should do so, the sheriff was commanded to summon him by good summoners to appear, and shew wherefore he had not done it. The first process therefore was a summons, which was served by the sheriff or his bailiff, either upon the person of the tenant, or upon the land demand- ed. And after summons, proclamation thereof was ' See chap. iv. § 16. " Mass. Stat. 1797, ch. 50. § 4. 12 90 REAL ACTIONS. [CH. TI. to be made on sunday, at the most usual door of the church, after divine service.* There were to be fifteen days at least, between the summons and the day the tenant was to appear.^ If he neglect- to appear, his default was entered, and a judicial writ, denominated grand cape, was awarded against him. At the return of this second process if the tenant did not appear, and save his default, either by alleging tliat he was not summoned, or shewing some other lawful excuse for his non- appearance, the demandant, according to the strict rule of law, was entitled to judgment for seisin of the land.^ The excuses which were admitted to save the tenant's default, were impris- onment, inundation of waters, tempest, or des- tructio7i of a bridge, and some others. But it was no excuse for a default, to allege generally that he was sick ; though it was admitted as one of the usual essoins.^ Upon default, after sum- mons, an attachment issued, by which the sheriff was commanded to put the tenant by gage and safe pledges, per vadium et salvos plegios, so that he should be before the justices, to answer the demandant. This process, like the former, had fifteen days between the teste and return, and authorized the sheriff to take security by personal 1 Stat. 31 Eliz. ch. 3, §,2. ^2 Saund. 45, n. 4. 3 Booth, 6. "^ Plowd. 18, 19 ; Bendl. 24. SEC. IV.] REAL ACTIONS. 91 goods only. But the attachment soon degenerated to mere matter of form, and the pledges became only nominal persons. If after attachment the tenant still neglected to appear, another writ was issued, called a dis- tingas or distress infinite. By this the sheriff was commanded to distrain the tenant from time to time, continually, by taking his goods, and the profits of his lands, which were called issues. These by the old law were forfeited to the king, if the tenant did not appear.^ But by a statute of the last reign, ^ the court were authorized to cause the issues to be sold, to defray the reasona- ble costs of prosecuting the suit. Besides the several kinds of process which have been mentioned, the demandant was often compelled to resort to several others, by the man- agement of the tenant, whereby he contrived, from time to time, to save or excuse his defaults. The most usual form of excuse, allowed by the ancient law, was denominated an Essoin, of which we shall soon take notice. Sect. IV. hi our practice the process in real and personal actions is the same. The writ is simple, intelligible, and expressive of the claim or complaint of the demandant or plaintiff, and the duty enjoined upon the sheriff. The forms are 1 3 Bl. Com. 280. 2 jq Geo. 3, ch. 50. 92 REAL ACTIONS. [CH. II. enacted bj statute, and must be pursued in all cases in which they afford an appropriate remedy.* All original suits must be commenced by summons^ capias, or attachment ; and generally a party has his election, to pursue one or the other at his pleasure.^ Real actions are usually prosecuted by original summons, so called to distinguish it from the summons which accompanies the writ of attachment. This writ may indeed be used in the commencement of all actions, personal as well as real ; an early law of the colony having provid- ed that every plaintiff should be at liberty to sue out either summons or attachment.^ Before the statute of 1795, ch. 75, the writ in real actions might not only be issued, but executed also in the same manner as personal actions. The first section of that statute provides, " that if the tenanfs body be taken upon a ivrit of Ejectment, or other real action, his own bond, and no other, shall be required for his appearance to answer to the same." It follows, therefore, that the demand- ant may institute his suit by either of the writs before mentioned, and is only restricted, as to compelling the tenant to procure bail. The writ in this, as in all other cases, must be in the name of the Commonwealth, sealed with 1 3 Mass. R. 193, Cooke vs. Gihhs. " Mass. Stat, 1784, ch. 28. 3 Ord. 6644, Anc. Chart. 49. SEC. IV.] REAL ACTIONS. 98 the seal of the court, bear teste of the Chief Justice, or of the first Justice not interested, and be signed by the clerk of the court from which it is issued.^ It must be dated and served fourteen days at least, before the sitting of the court to which it is returnable, if against an individual, and thirty days at least if against a corporation.^ And before it is served, it must be endorsed by the demandant, if he is an inhabitant of the state, or by his agent or attorney, being an inhabitant therefore. But if the demandant is not an inhabi- tant of the state, his writ must be indorsed by some responsible person who is.^ If the demandant is a minor, his prochein ami should indorse.^ It may be added, that an error in the teste or date, or an omission to indorse the writ, can be taken advantage of, only by plea in abatement, and is cured by a general appearance and pleading to the action.^ All writs in real actions must be served by the sheriff or his deputy ; or when either of them is party or interested, or the office of sheriff is vacant, by some coroner of the county.^ But if process is served by a deputy sheriff, where 1 Mass. Const, ch. 6, art. 5; Stat. 1820, ch. 79. 2 Mass. 1797, ch. 50 ; 1783, ch. 39, § 6. » Mass. Stat. 1784, ch. 28, § 11. * 17 Mass. R. 222, Crossenxs. Dryer. •^ Tid. Prac. 91 ; 7 Mass. R. 209, Prescott vs. Tufis. « Mass. Slat. 1783, ch. 44 ; 1792, ch. 17. 94 REAL ACTIONS. [CH. II. another deputy is party, the process is not void, though it will be set aside on motion or plea.* As no damages are given in Real Actions, the only inducement to make an attachment of property is to secure a fund, from which the bill of costs that shall be recovered may be satisfied. It is usual, therefore, in these cases to make only a nominal attachment. Sect. V. The indulgence of the ancient laio allowed both parties, in real, as well as personal actions, wlio had been summoned, or ought to attend in any suit, to excuse their absence, for some supposed just cause." These excuses were denominated essoins ; and they are originally provided by the law, as a protection to parties from the injury or prejudice to which they would otherwise have been liable, even for an inevitable absence. There were in ancient times five prin- cipal essoins, which were allowed both in real and personal actions. 1. That the party was in tlie king's service. 2. That he was in the holy land. 3. That he was beyond sea. 4. On a sick bed. 5. Sick on the road. And this last w^as called the common essoin. Besides these, there were special essoins, allowed in real, but not personal actions.^ Some of these essoins * 1 ! Mass. R. 181, Gage vs. Graffam- 2 Flet. lib. 6. ch. 7, 8 ; Co. 2. Inst. 125. ^ Flet. lib. 6, ch. 7. SEC. v.] REAL ACTIONS. 95 likewise were allowed in one kind of real action, but not in another. Thus the essoin of being in the king^s service, (which generally occasioned great delay,) was not allowed in Dower, Quare impedit, Assise of darrein presentment, and of novel disseisin} To guard against the abuses which were frequently practised, the common law had provided in some cases, as the statute of Marlbridge^ afterwards did in others, that the truth of the excuse should be verified by oath of the party. But the common essoin, of sickness on the way to the court, (as it occasioned but little delay,) was not required to be ivarranted, as it was called, by oath. As the essoin of beyond sea, was often falsely alleged, the parliament interposed, and allowed the demandant to challenge it.^ And if it was found that the tenant was within the four seas, on the day of the summons, and three iveeks after, the essoin was turned into a default and the tenant lost his land, as a punishment for falsely delaying the demandant.^ Afterwards the same provision was enacted to prevent a similar practice in the essoin of being on a sick bed.^ But the greatest 1 39 H. VI. 40 ; Co. 2 Inst. 124. 2 Ch. 19. 3 Stat. West. 1, ch. 44. * Co. 2 Inst. 253. 5 Stat. West. 1, ch. 17. 96 REAL ACTIONS. [CH. II. abuse of this well-meant indulgence to tenants, was practised bj joi7it tenants^ parceners, and tenants in common, all of w^hom the demandant was obliged to join in the suit. If there were three or more of them, the first might essoin, and the other two appear at the return of the summons. Then all must have the same day given them, at which day the second would essoin, and the other two appear, and so on to the last. After each had been allowed his essoin in their order, the first might essoin again, and so on. This is what was called fourching by essoin ; which was so much abused, that the parliament first prohibited it as to joint tenants and parceners,* and afterwards as to husband and wife.^ Essoins were alloioed, not only before, but after appearance, after view, and before and after issue joined. They were not confined to the original parties to the suit, but extended to the prayee in aid and the vouchee. And after the vouchee had been essoined, and the same day given to the tenant, demandant, and vouchee ; the tenant was still permitted to essoin again.^ Such are some of the most important particulars in these dilatory and strange proceedings ; at the 1 Stat. West. 1, ch. 43. ~ Stat. Glouc. ch. 10 ; see 2 Sauud. 45, u. 4. 3 Booth, 42 ; Hob. 46. SEC. VI.] REAL ACTIONS. 97 same time so oppressive to the demandant, and so reproachful to the law. It is not surprising that the judges in England, and indeed the whole nation^ should have been anxious to get rid of the system of Real actions, if they believed, (as it seems they did,) that it was impossible to retain them, and at the same time to strip them of these intolerable appendages. Fortimately, as has been before hinted, the doctrine of essoins was never admitted into our practice ; and our experience has clearly shown, that it is by no means incompati- ble, to retain what is valuable and useful in the ancient law upon this subject, a7id to reject what is useless and pernicious. Sect. VI. Where an action is commenced in the name of several persons, one or more of whom refuses to proceed; as the others cannot go on without him, the action, whether real or personal, (where such party cannot be severed from his companions,) is at an end. But that one of several plaintiffs or demandants might not have it in his power, either through obstinacy or fraud, to defeat the rights of another, who had the misfortune to be connected with him ; the law early provided, that where several were compelled to join in one action, if one or more refused to appear and prosecute, a summons should he awarded to the persons so refusing, to appear at a certain day to prosecute, together with the others who chose 13 98 REAL ACTIONS. [CH. II. to proceed in the suit. If, at the return of such a summons, those to whom it is awarded, do not appear, judgment is given, that they shall he sev- ered, and that the other plaintiffs or demandants shall sue alone} This proceeding is denominated SUMMONS AND SEVERANCE ; and at common law it lies generally in real actions, and actions that savour of the realty, as Detinue of Charters, Warrantia Cartes, and the like. But if a party who refuses, or is disabled to sue, is improvident- ly joined with others in a suit, where they might have proceeded without him, such party cannot be severed ; and if the tenant makes the objection in season, the writ will abate, or must be discon- tinued.^ By our statute of 1785, ch. 62, co-heirs, and joint tenants may all, or any two or more of them, join in an action of Waste, Ejectment, or other real actions, for the recovery of their lands ; or each one may sue alone for his particular share. Since that statute, therefore, as they are no longer compellable to join in such actions, according to the ancient principle, summons and severance no longer lies, in the case of co-heirs and joint ten- ants. And if they do join, and one becomes 1 Bro. Summons at Suverans 4, 10, 16; Bac. Abr. Sum. & Sev. A. 2 10 Mass. R. 131, Poor vs. Robinson. SEC. VII.] REAL ACTIONS. 99 disqualified, (as by a release, or the marriage of a feme sole ;) or if one refuse to prosecute, they are of course subjected to all the inconveniences of a joint action at common law.'. ; ,> ;., After one has been 'Siwfmoned and s'emredj, he can no longer defeat the proceedings, or preju- dice the other parties to the suit by his arts; as by entering upon the Jfmds demanded , or in the case of a female, by marriage pending the suit.^ It is manifestly for the advantage of all con- cerned, that questions of title should, if possible, be decided in one, rather than a number of suits. And it has accordingly been suggested from a most respectable quarter, that the subject was deserving the attention of the legislature.^ Sect. VII. By the ancient law, the party against whom a suit was commenced, instead of taking upon himself the defence of the action, in many cases might call in another person, either to defend in his behalf, or to aid and protect him in his defence. If he was sued for land in a real action, which some person was bound by his warranty to defend, the proceeding, by which such party was called into court to defend the 1 10 Mass. R. 131, Poor vs. Robinson; ib. 179, Oxnord vs. Proprietors of Kennebeck Purchase. ^ 10 Co. 134, Read «!• Redman'' s case. 3 See 10 Mass. R. 180. 100 REAL ACTIONS. [CH. II. title he had warranted, was called voucher, of which some account will be given hereafter.* But the action might be brought against one, who, though hb held possession of the thing demanded, had 'not the complete and jewtire property. In this case J if judgment passed against him who was sued^ some 6iher. person who .had the ultimate right, would be •injured. • And he 'could not vouch in such a case, because that Was permitted otily ivhere the tenant held an estate of freehold, and had also the warranty of his feoffor or grantor.^ The law therefore allowed such a party to pray the aid of him who had the title, to defend the suit.^ Aid prayer was not confined to real actions^ but was also allowed in personal actions which involved the title to the realty, as in Trespass, Replevin, Annuity, Scire Facias, Attaint, and some others.^ As the king could not he vouched, his grantee might pray him in aid. This however was confined to those cases, in which the king might be liable to suffer damage, or the title to a freehold derived from him was drawn in question.^ Aid of the king therefore was of two kinds. First. Upon the warranty, for the purpose of 1 Chap. 3, § 6, 7. 2 Co. Litt. 385, a. ^ 1 Danv. Abr. 291, 303. " 3 Reeves' Hist. 445. ^ 1 Danv. 269, 271. SEC. VII.] REAL ACTIONS. 101 recovering in value, for the land of which his grantee had been evicted ; and then it was a sub- stitute for a voucher. Second. Where it was founded upon the slenderness of the tenant's estate, and then it resembled the proceeding, by which any common person was called upon to aid, or to defend for the tenant. Upon demand of aid, if the prayer was granted by the court, a judicial writ, called a summons ad auxiliandiim, was sued out by the tenant. At the return of the writ, if the prayee did not appear, or essoin, or if he afterwards made default, judgment was entered, " that the tenant should answer to the count without the said A.," the prayee.* Tenant for life generally had his option to vouch the reversioner, or pray him in aid.^ When the remainder was limited in fee to tenant for life and another, if tenant for life was impleaded, he should have aid of the other. And the tenant for life might have aid of the remainder-man in fee, without showing any deed ; because there might be a feoffment without deed.^ A party who is in by his own wrong, as abator^ intruder^ or disseisor, is not allowed to pray in 1 Booth 61 ; 2 B. & P. 386, Onslow vs. Smith; see the form of the prayer and the summons ad auxiliandum, Appen- dix, No. 41. 2 9 H. VI. 3. 3 22 H. VI. I. 102 REAL ACTIONS. [cH. II. aid.^ Therefore in a writ of Entry in nature of an assise, aid might be prayed of the reversioner ; but not in an assise, because in that action the tenant is supposed to be in by his own tortious act.^ Aid should he prayed before a general impar- lance. If prayed afterwards, it is bad on general demurrer, and the court will give judgment that the tenant answer alone.^ In voucher and aid prayer, the party is brought in to defend, at the request of the tenant. But the tenant may collude with the demandant, and suffer judgment to go against him, to the injury of some person interested in the estate. The law therefore made provision that such interested party might pray to he received to defend his freehold or inher- itance.^ The proceeding by which such party was permitted at his own request to defend, was called RECEIT.^ The time of praying to be received was when judgment was about to be given for the demand- ant, without further process. And the person received might plead most of the pleas, and take all advantages of voucher, aid, fcc. which the ^ 1 Danv. Abr. 287. 2 14 H. VI. 22 ; 4 Ed. IV. 14 ; 21 Ed. IV. 15. 2 B. & P. 384, Onslow vs. Smith ; 2 Saund. 45, e. note. 4 2 Reeves' Hist. 151. ^ See the form of the prayer to be received, Appendix. No. 42. SEC. VIII.] REAL ACTIONS. 103 tenant might, but could not imparl, or essoin ; and if he suffered a default, it was peremptory.^ The demandant might, by way of plea, allege some matter against these applications for aid, or permission to defend ; and this was denominated counterpleading the aid or receit. The most common counterplea to aid prayer, was, that the prayee had nothing in the reversion at the day of the writ purchased. Aid-prayer is now seldom resorted to, espe- cially in our practice, except in writs of Right, where the tenant has not the absolute or ultimate fee simple. And other means having been devis-> ed to prevent collusion, Receit is now an obsolete remnant of the ancient law. Sect. VIII. After the demandant in a real action has counted, (which was much the same as filing a declaration in a personal action,) the tenant might pray the court to give him a day to answer the demand, which is called an imparlance. There are two kinds of imparlance. The one, called a general imparlance, is merely praying- time to answer, making no objections to the pro- ceedings of the demandant. And this it seems is always to the next term.^ The other, denominat- ed a special imparlance, was with an express 1 3 Reeve's Hist. 447. 3 6 Mod. §8. Lonsrvill vs. Thistlen^orih. 104 REAL ACTIONS. [CH. II. " saving of all objections to the writ, hill, or count; and sometimes as well to the jurisdiction of the court, as to the writ and count." This last is frequently called a general special impar- lance.* The demandant may have leave to imparl, as well as the tenant ; and as the days of special imparlance are considered as days of grace, the courts are not bound to the common days, but may give any particular day they see fit.^ After the general imparlance, as that is a waiver of all objections, the tenant, of course, can plead no plea to the writ. But after a special imparlance, he may plead any plea in abatement, as non tenure, joint tenancy, several tenancy, and the like.^ And after the most special imparlance he may plead to the jurisdiction of the court.^ Upon this subject therefore the law seems to be much the same in real, as in personal actions ; except that in the former the tenant is entitled to an imparlance of course, upon his appearance.* In our practice, an imparlance is merely a continuance of the cause to the next term of the court. And it may be with or without a saving of all exceptions to the writ. It is not, (except in a few particular cases,) a matter of course or 1 2 Saund. 2, n. 2. 2 gro. jours, 52. 3 Palm. 308 ; Keihv. 93, b. 4 q Saund. 2, n. 2. •5 Com. D. Pleader, D. 2. SJEC. IX.] REAL ACTIONS. 105 of right. The court may generally grant or refuse it, to either party, at their pleasure ; not indeed arbitrarily, but according to a sound discre- tion, regulated by their own rules, and the estab- lished course of practice. And that course is generally the same with us in real and personal actions. The ancient rule, that a plea in abatement cannot be received after a general imparlance^ is recognized by our courts.^ And it seems that no exception to this rule is allowed, even where the Commonwealth is interested, or party defendant.^ Sect. IX. The privileges and disabilities of INFANCY were extended much further by the ancient law, than they were at a later period. This will be very manifest, if the law as stated by Bracton is compared with the writers and decisions of the succeeding age. There were some actions which a minor might maintain, and others which he could not. So on the other hand, there were some actions to which he was obliged to answer, notwithstanding his infancy, and others to which he could not be com- pelled to answer, until he was of full age. He might demand land upon his own seisin, by an assise of Novel disseisin ; or upon the seisin of 1 9 Mass. R. 217, Campbell vs. Stiles. 2 1 Mass. R, 347, Martin vs. Commonwealth. 14 106 REAL ACTIONS. [CH. lU his ancestor, by an assise of Mortancestor. Where the land was held mfree socage, there was a particular rule established, that the infant could hot demand it, in a writ of Right, until the age of fourteen; and where it was a.feudum militare he could not sue for it until he was twenty one. If there were several demandants, as in the case of parceners, and one was a minor, it was a good plea against all. If husband and wife were demandants, and she was an infant, and married before the writ purchased, the plea would remain quousque, says Bracton. But if she married after the purchase of the writ, it should abate, or th'3 plea should be suspended until her full age, at the election of the tenant} So if the minor demand- ed services, and not lands, the tenant might allege that he was quit of the services, quo die et anno antecessor viviis et mortuus fuit, and he was not held to answer till the demandant was of a^e.^ Generally, where a naked right descended to an infant, in every action ancestrel, brought by the heir within age, the parol should demur till his full age ; because, according to lord Coke, the law judged it less prejudicial to the infant to be delayed of his right, than to run the hazard of losing it forever.^ 1 Bract, lib. 5, c. 21, fol. 423. 3 Bract, ib. 3 6 Co. 36, Markers case ; Dy. 133. 3EC. IX.] REAL ACTIONS. 107 But the cases in which the heir, ivho was sued, was entitled to the privilege of staying the suit until he should come of age, were much more numerous. The principle extended generally, not only to cases where land was demanded against him, but where any claim was made, iii respect of the land, as debt against the heir, upon the obli- gation of the ancestor,^ annuity,^ execution on a statute merchant,^ or upon a recognizance.^ The cases in which an infant was not allowed this privilege, were where the charge was of a fact or wrong committed by himself, as in assise of Novel disseisin, assise of Mortancestor, or writ of Entry in the quibus ; or where the charge was upon any thing of which his ancestor did not die seised, in domifiico stio ut defeodo ; or in parti- tion between parceners where nothing is demanded, but a division of the land f or finally in dower, where the law admits of no delay that is not inevitable, because the widow must have a sub- sistence.'^ But if tenant in dower was disseised, and the disseisor died seised, his heir was entitled to this privilege against the disseisee.^ ^ 2 Inst. 89 ; Moor 74. ^ j ^^^^ ^^^ ^^^ 3 Co. Litt. 290, a. ^ 3 Co. 13, Sir W. Herberfs case ; Co. Litt. 290, a. 6 6 Co. 4, b. 7 1 Roll. Abr. 137. ^ 3 Bulst. 142, Harbert vs. Bynion. 108 REAL ACTIONS. [CH. 11. Generally, therefore, the parol should demur in all writs of Right against a minor, who was in by the seisin of his ancestor, writs o{ FormedoUj and writs of Entry, which did not charge the infant himself with the original wrong or disseisin.^ So also in Scire facias against the heir or ter- tenant.^ This privilege or temporary bar, it may be remarked, is a peculiar feature of the feudal law. In the civil law, the guardian was party to the suit, and not the infant ; and if there was mala fides in the defence, he was answerable for it to the infant. But the ivardship of the feudal law was of a different nature. The feudal lord, as guardian, had the whole profits of the infant's es- tate, which the law gave to him during the nonage of his ward. In all cases therefore, where the fee was demanded, or charged in his hands, as in debt on the obligation of the ancestor, or scire fa- cias to have execution upon a statute staple or recognizance, or against the heir as tertenant, the parol should dcmur.^ And it is not easy to un- derstand how it should have happened, that this provision should have been extended to heirs who held lands in socage, nor Avhy it should continue to be part of the common law of England at the 1 6 Co 36. 2 1 Roll. Abr. 140. 3 Glib. Hist. C. P. 54, 56. SEC. IX.] REAL ACTIONS. 109 present day, though, in consequence of the disuse of real actions, a great portion of it has become obsolete.^ Whether its rejection from our code was owing to its being considered an appendage of the feudal law, it is perhaps not very important to determine. Whatever may have been the cause, it seems never to have been adopted as a part of our law. And though the claim has sometimes been urged on behalf of infants, it does not appear that it has in any case been allowed, or the claim of it put upon the record, in the form of a regular plea or motion. With regard to the mode of taking this excep- tion, it may be remarked, as a general rule, that where a mere naked right in fee descended, of which the ancestor was once in possession, the parol should demur, without plea. But where the ancestor died seised of the land, or the action was brought upon the infant's own seisin, the parol did not demur ivithout plea.^ And where it was claimed by plea, it might be counterpleaded, by alleging some matter which would defeat the claim, much in the same manner that view, aid- prayer, and voucher, were counterpleaded. ^ See 4 East 485, Flasket vs. Beeby and others, 2 6 Co. 3, b ; 4, a. 110 «r;\F, \( iioNS. [ciT. 11. Skct. X. Ill tlic aii(i<'iit prjictirc, tlioro were two kinds of viKvv in ro;il actions. 1, View by i\w, pariij. 2, View by tlwjnrj/. I. The necessity olii view by llie leiiant origin- ally arose; (Voni llie wry f»(!iieral and imperreet des- erijilion w liicli uasf;i\(n in (lie couiil, of tin; prop- j'lty or thin<; demanded ; as one messuage in Dale, iwo hundred acres of land, one hundred acres of •nieadoV', and the like, ^\itllout either name or uhutials. As the tenant conhl not, (like a deieud- ant in trespass,) plead that; tlu; land was liisyixt'- h ol d 'dud thus compel his adversary to j»ive a more jyrceise description, in a new as.sii;nment ; the law allowed him to recpiire, ihiit the land d(;nianded bihoidd he shown to him, so that he mii^ht know \vith certainty af;ainst. what claim he had to deleiul. I Jilt as this iii(hili;(Mice was soon abnsed, and the teiKuil otlen demands a ricir, nuMcly to delay the demandaiil, and not iVom anv want ol kiiowl- Vi\<^c ol" (he Ihini; demanded ; an attempt was made by the statute ol" Westminster 2,* to prevent this abiis(>, by prohibit ini; the i^rantiiii; a view by the ct)urt, N\li(>re it was not necessary.^ When a view was diMuanded in the cases |)rohil)ited by statute, and a lew others in which it was not allowed at common law ; (as where a \ iew had before been 1 13 E(hv. 1. ch. U!. a Co. 2 Inst. 479. SEC. X.] REAL ACTIONS. Ill granted, and the writ abated, or where the tenant was charged with having entered by wrong,) the demandant might allege these facts by plea, and thus oust the tenant of his vieiv. This was called counterpleading the view.* And this kind of view it seems might be demanded, as well after as before a general imparlance ; and it was com- monly the occasion of great delay to the de- mandant.^ Vieio by the party, it seems, never ivas alloic- ed in our practice. But it still continues to be a part of the formal proceedings in a ivrit of Right, (the only real action now used either in England or in most parts of our own country ;) and at this day is generally resorted to, merely for the purpose of delay. ^ When a view is demanded by tlie ten- ant, the demandant must sue out the ivrit of View.* 2. View by the jury, was allowed in several real actions, as Assise of novel disseisin, Waste, Assise of nuisance. In these cases, therefore, a view by the party being rendered unnecessary, was not permitted by the law.^ The design of this proceeding was to enable the jury better to 1 Booth, 37. 2 Booth, 39. 3 See 3 Cliit. P. 1. G43 ; 2 Saund. 45, b. note ; 3 Johns, eas. 237, Gravcsand vs. Voorhis ; ib. 335, JIaines vs. Budd. * 1 Johns, cases. 395, Sc/infield <^' wife vs. Lodie. •"' 8 H. VI. 27; 50 Edw. III. 11. 112 REAL ACTIONS. [CH. II. understand the matter in controversy between the parties. It was not confined to real actions, but was allowed in several personal actions, for an injury to the realty^ as Trespass quare clausum fregit, Trespass on the case, and Nuisance. At the present day the practice on this subject is regulated chiefly by statute, both here and in Eng- land. By the English statute 4 & 5 Ann. ch. 16, § 3, where it shall appear to the court to be proper and necessary, in actions of Waste, Trespass, Ejectment, or other actions, that the jury who are to try the issue, for the better understanding of the evidence, should view the messuages, lands, or place in question, a special writ of distringas or habeas corpoca shall be issued, by which the sheriff shall be commanded to have six out of the jirst twelve of the jurors, named in such writs, or some greater number of them, at the place in question, some convenient time before the trial, who shall have the matters in question shown to them by two persons, to be appointed by the court, and named in the writ. And the sheriff who executes the writ, is to certify that the view has been had. By a subsequent statute,* it is further provided, that where a view is allowed, six of the jurors named in the panel, or more, (who shall be mutually consented to by the 1 3 Geo. II. ch. 25, § 14. SEC. XI.] REAL ACTIONS. 113 parties, or if they cannot agree, named by an officer of the court, or by the judge before whom the cause is brought,) shall have the view. These six, (or as many of them as shall appear,) shall he first sworn upon the jury, to try the cause ; and so many others are to be drawn and added to the viewers, as are necessary to make up the number of twelve, after all default- ers and challenges allowed. Before the time of lord Mansfield, it seems to have been understood that six jurors of the first twelve upon the panel must attend up- on the view ; and that if those six did not appear at the trial, the cause must be put off. This having occasioned much inconvenience, the judges established a rule, that before a view was granted, the parties should consent, that if no view was had, or if a view was had by any of the jurors, though not by six of the first twelve, yet the trial should proceed, without objection on that account, or for want of a proper return to the writ.^ Sect. XL The practice relating to vieio by the jury, in our own country, has generally been regulated by the legislature, and established sub- stantially upon the basis of the English statutes above referred to. In Massachusetts the first act on this subject was passed in the 19th year of Geo. II. It provides, that in all actions in any 1 See 1 Burr. 253. 15 114 REAL ACTIONS. [CH. if. court of record, where it shall appear to the court, that it will be proper and necessary that the jurors, who are to try the issues in any such actions, should have a view of the messuages, lands, or place in question, in order to their better under- standing the evidence to be given upon the trial, the court may order the jury to the place in ques- tion, who shall then and there have the matters in question shown to them by two persons to be appointed by the court. The costs of the view, to be allowed by the court, were to be paid, before the trial, by the party who moved for the view, or by the parties equally, where the view was by con- sent ; and the party recovering judgment was allowed the sum by him paid, in the taxation of the bill of costs.* These provisions have been substantially re-enacted by statute, 1807, ch. 140, § 8, which provides, " that in all cases relating to real estates, either party may have a jury to view the place in question, if the court shall be of opinion that such view is necessary to a just decision : Provided the party moving therefor shall advance such a reasonable sum to the jury, as the court shall order, to be taxed against the adverse party, in the event of a decision of the cause against him, on the merits, or through the default of such adverse party." 1 Anc. Chart. 559. SEC. XI.] JIEAL ACTIONS. . 115 In our practice no distringas or habeas corpora juratorum is issued, as in England, and some parts of our own country. The duty of the sheriff or officer to whom the jury are committed, is clearly pointed out by his oath, which is adminis- tered in court, in the presence of the jury and parties. It does not seem to be strictly necessary to apply for a view by the jury, until the cause comes in course for trial. But it is usual and convenient to apprize the adverse party and the court, before the trial comes on, that such a motion is to be made. But where circumstances occur in the course of the trial which render a view necessary, it may be granted at the discretion of the court, any time before verdict. The usual course of proceeding is, to call the jury, as in other cases, and the writ and declar- ation, with the pleadings relating to the issue to be tried, are read to them. Then the judge ap- points two persons, (one being named by each party,) to show the premises in question . to the jury. The officer is sworn " to take charge of the jury, and take them upon the premises in question, and there suffer them to view the same as they shall think necessary, and all such lines, monuments, and boundaries, as shall be shown them by either party : not to permit the parties to enter into a debate relative to the premises in the 116 REAL ACTIONS. [CH. II. hearing of the jury, or any person to speak to them upon the subject, unless it be the person appointed by the court, to point out such lines, monuments, and boundaries as they shall deem expedient for the determination of the issue be- tween them, and to keep the jury together until they shall return into court.^ The officer then departs with the jury, who having viewed the premises, return into court, when the trial pro- ceeds as in other cases. And it is manifest that by having the view, while the court is sitting, we avoid most of the inconveniences experienced in the practice relating to views in England. It is generally held, that the denial of a view by the tenant, where it ought to be granted, or the granting it, where it ought to be denied, is error. ^ But vieiv by the jiiry, as now established by the English statutes and our own, depends upon the sound discretion of the court. It seems therefore that the granting or refusing it could be no more the subject of a writ of error, than the granting or refusing leave to amend. A question has sometimes arisen, as to the propriety of the conduct of the persons appointed to shoiv the premises to the jury. And in the 1 See the form of the oath, Appendix, No. 2 2 Lev. 117, Astmal vs. Astmal. 43. SEC. XI.] REAL ACTIONS. 117 English courts, motions have been made to set aside the verdict, npon affidavit that the showers have mishehaved. But still the authority of the shoviTrs, and the nature of the conversation they may hold in the presence of the jury, do not ap- pear to be well defined. It has been contended that the premises were merely to he shown, with the lines, monuments, and boundaries; and without a word of explana- tion. This seems, however, too narrow a con- struction of the duty prescribed to the sheriff by his oath. For although no debate is allowed, it is clearly admissible and proper, in pointing out the objects to be noticed by the jury, to inform them to rvhat points the evidence ivill be directed upon the trial. But no facts can with propriety be stat- ed to the jury, as evidence, either by the showers or by witnesses.^ Another, and very important incident in the ancient course of proceedings in real actions, which we might here mention, is Voucher and recovery in value. But this it has been thought most useful to the student, to consider, in connexion with the doctrines of Warranty, and Covenants Real, which will be discussed at some length in the next chapter. 1 See Barnes, 452, Symons vs. Clark. 118 REAL ACTIONS. [CH. III. CHAPTER III. Warranty, Covenants, Voucher, ^c. Sect. I. The ancient law of warranty, from whence are derived some of the leading doctrines- concerning Covenants which affect the title to real property, constituted the most refined and difficult subject of legal learning. But many of its principles, according to their strict feudal notions of tenure, with its appropriate remedy by Voucher, and recovery in value, upon an eviction, have become nearly obsolete, even in England. In this country, or at least in this Commonwealth, they have never been adopted, except only as a part of the formal proceedings in a Common re- covery.^ Still on account of the space occupied by this subject in the works of the ancient law writers, and the frequent use they make of it, in illustrating their doctrines, it continues to demand a share of the attention of every student who wishes to ob- 1 2 Mass. R. 438, Marston vs. Hobbs. SEC» I.] WARRANTY. 119 tain a thorough knowledge of real actions, an(f the law respecting the alienation of real property. It is not intended, however, (nor would it be consistent with the limits prescribed to these remarks,) to enter fully into the discussion, or indeed to attempt even a complete outline of the law of warranty. Only such parts of it therefore will be referred to, as seem necessary to elucidate the doctrines of covenants real, and to explain the principles upon which the action of Covenant has been introduced, as a substitute for the ancient remedy by voucher and recovery in value. But before we proceed to the consideration of this subject, it may be useful to call the attention of the student, for a moment, to the analogy between the general principles of warranty in the civil and the common law. Natural justice requires that the vendor should acquaint the purchaser with every defect of the title he is to acquire, or defend him in the enjoy- ment of his purchase, and indemnify him in case of eviction.^ Hence the general principles of warranty, variously modified, form a pait of per- haps every civil code. Warrant!) in the Roman law is the obligation of the vendor to put a stop to the eviction and other troubles which the purchaser suffers in rela- 1 Sugd. L. V. 1. 120 REAL ACTIONS. [CH. III. tion to the property purchased. Eviction is the loss which he suffers, either of the whole thing purchased, or a part of it by reason of the right which a third person has to it. Troubles are defined to be those claims, charges, or incumbran- ces, which, without affecting the title to the thing purchased, diminish its value to the purchaser ; as a right to the usufruct or some charge, rent, ease- ment, or the like. The general obligation impos- ed upon the vendor to maintain the purchaser in the full enjoyment of the thing sold, though not mentioned in the contract, was denominated ivar- ranty in law. But this obligation might be lim- ited by the terms of the contract, either extending or restraining it at the pleasure of the parties, which was called warranty in deed} A similar division into tacit and express war- ranty is adopted by Br acton, who says that if the charter expressed that the donor should not be held to warranty, conventio vincit legem. ^ But notwithstanding this resemblance, it will readily occur to the student that these principles of the civil law have more analogy to covenants real, than to the warranty, treated of in the Ten- ures of Littleton, which is manifestly oi feudal origin. 1 Dom. B. 1. tit. 2, § 10. * Brac. 1. 2 c. 16, § U- SEC. I.] WARRANTY. 121 The feudal warranty was strictly a conse- quence of tenure not of contract. It was the obligation which tliat system of polity imposed upon the lord, to defend against all claimants, the title of his tenant to the fee with which he had invested him. If the tenant was evicted, the lord was bound to give him other lands, by way of recompense, equal in value to those he had lost. This obligation of the lord did not commence until he had received the homage of his tenant. When that was received, it bound the lord to acquital and warranty : that is, to defend his ten- ant from entry, distress, or other claim, for services due to the lord paramount, as well as to defend his title. But at a subsequent period the claim of the tenant upon his lord, in consequence of the homage he had received, was confined to a partic- ular tenure, denominated homage auncestrel. The warranty annexed to this tenure was in one respect more advantageous to the tenant t\i^i\Anexpressivar- ranty. In the case of an express warranty, if the ten- ant was evicted, he could not recover from the heir, unless he inherited lands descended from the same ancestor who made the warranty. But it being essential to homage auncestrel, that the tenure should have been created before time of memory, it was manifestly impossible to determine ivhick lands descended from ancestors who made the warranty. The law, therefore, charged all the IG 122 REAL ACTIONS. '' [cH. III. lands descended to the heir, from whatever ances- tor they might have come. Sect. II. The practice of subinfeudation, which seems to have commenced in England about the beginning of the reign of Henry III. occasioned considerable alteration of the system of warranty established by the feudal law. This was a consequence of the different tenures by which, in the cases of subinfeudation, the tenant might hold his estate. It might be held of the chief lord of the fee, or of the immediate grantor himself, or a part of the feudal services might be reserved to each of them, according to the pleasure of the grantor, or the agreement of both parties. This diversity of tenure was a great innovation upon the simplicity of the ancient law, and left the extent of the obligations of grantors to war- ranty undefined. Lords were desirous of retain- ing the fruits of tenure, without being obliged to defend their tenants. And they contended that though the tenure was expressly limited to hold of themselves and their heirs, by certain services, they were not bound to warranty without an express clause to that effect, or the receiving of homage. This made it necessary for the Parlia- ment to interpose in the fourth year of Edward I. by the act, called from one of its chapters, De bigamis.^ By this statute it ^^ as declared, " that 1 \ Ed. I. ch. 6. SEC. II.] WARRANTY. 123 deeds which contained the words dedi et concessi tale tenementum, without reserving homage, and without clause of warranty, and to be holden of the grantor and his heirs by a certain service, should be so construed as that the donor and his heirs should be bound to warranty." This pro- vision, however, according to lord Coke, was only a confirmation of the common law.^ "But when the deed contained the words dedi et concesse, Sec. to be holden of the chief lord of the fee, or of any other hut the feoffor or his heirs, reserving no service, without homage or clause of warranty, it was declared that the heirs should not be bound to war- ranty, but the feoffor should, during his life."^ Where lands were granted to be held of the chief lord of the fee, without homage, or service reserved to the grantor, it was in the nature of an assignment of the property, or a substitution of one tenant for another, and no tenure subsisted between the grantor and grantee. Warranty, therefore, which was a consequence of tenure, did not hold between them. But though there was no warranty, there was a gift by which the donor was supposed to be personally bound. The word give, which was the ancient term of feudal investi- ture, imposed an obligation on the part of the grantor, in the nature of a personal warranty during his life, 1 2 Inst. 275, and see Bract, ch. 6. 2 j Reeves, 144. 124 REAL ACTIONS. [CH. III. but not extending to his heir. For if it had been allowed to ])ind the heir, it would indirectly have enabled the ancestor to make such an alienation of the property as the law, before the statute of Quia emptores did not permit, without the consent of the heir.^ This statute which was passed in the eigthteenth year of Edward I. by providing that every freeman might sell at pleasure his lands and tenements or part thereof, eo that the feoffee should hold such lands or tenements of the chief lord, by the same services and customs by which the feoffor held them, put an end to subinfeudation oifee simple estates. And as a necessary conse- quence, it put an end also to that kind of warran- ty, which as a consequence of tenure was incident to every grant in fee simple to hold of the grantor and his heirs.^ Sect. III. In the construction of the statute of Quia emptores, its operation was limited to alienation mfee simple. When the grantor was seised in fee, but only granted an estate in tail, or for life, reserving a reversion for himself, and his heirs, the donee in tail, or lessee for life, ne- cessarily held of the reversioner, who continued to hold of the chief lord as before. The old tenure between the lord and his tenant the grantor, was not transferred from the grantor to the grantee. 1 1 Reeves, 240. ^ Butler's n. to Co. Lit. 384, a. SEC. III.] WARRANTO. 125 A new relation, analogous to tenure, was created between the grantor, who thus retained a reversion, and his tenant in tail, or for life, which was not affected by the statute. Between them the law remained as it was before the statute : that is, if the grantor in these cases granted by the word dedi, in consequence of the new tenure, both he and his heirs were bound to warranty. But where a person seised in fee, made at the same time a grant in tail, or for life to one, and the remainder in fee to another, no tenure arose be- tween the grantor and either of these grantees. The old tenure was transferred to the grantees of the particular estate and the remainder-men. They both together filled the place of their grantor, and held as he had done of the chief lord. Thus stood the law in England, after the stat- ute of Quia emptores, with regard to grants in fee simple, in tail, and for life ; and thus it remains at the present day. First. That statute, by putting an end to subinfeudation of fee simple estates, put an end also to the warranty incident to grants in fee simple, to hold of the grantor arid his heirs. The consequence is, that in conveyances inj^e simple no warranty resulting from tenure binds the heir. Express warranties may be limited and expressed as the parties please. If, in conveyances in fee simple^ no warranty is expressed, there is 126 REAL ACTIONS. [CH. III. none implied from the words " grant,''' ''bargain,^^ " 56'//," kc. or any other word, but the word " GIVE." And that word implies only ^personal warranty, during the life of the grantor ; and does not, in case of any eviction in the life time of the grantor, bind his personal representative, like a covenant broken in the life time of the covenantor. Second. Where the grant is in tail or for life, by the word " give," reserving a reversion in the grantor, the tenure between the grantor and the donee in tail, or lessee for life, remains as it was before the statute. Of this tenure, warranty by the grantor and his heirs is a necessary legal con- sequence : and so unalterable in its nature is this implied warranty, that it is not restrained in its operation by any express covenants of a more limited nature, as an implied covenant would be. Third. But if the grantor, at the same time that he creates the tenancy in tail or for life, grants over the remainder in fee to another ; as he jiarts with the whole estate at once, the tA\o grants taken together are equivalent to a feoffment, and no warranty is implied, though the \\ ord " give" be used. Sect. IV. With regard to leases for years the law was essentially different from the case of a grant of the freehold. A lease was considered as a chattel.^ It was merely a contract between 1 Co. Litt. 101, b. SEC. IV.] COVENANT. 127 the parties, by which it was stipulated on the part of the lessor, that the lessee should enjoy the pos- session and profits of the land for a certain period ; and on the part of the lessee, that the lessor should receive by way recompense, a certain rent.^ Against this express contract the lessor could not claim to retain possession of the land himself. But though the tenant received the profits, he was vievvcd as to all persons but the lessor, with whom he contracted, rather in the light of a bailiff, holdiiig the possession for the lessor, or other person entitled to the reversion. If the freehold was demanded, that demand was brought against the reversioner, while the lessee of the term was disregarded. And in case of a recovery, whether rightful or covenous, the freehold was recovered discharged of the term. There was no way by which the lessee could falsify such claim, or defend himself against it. His only remedy was against his lessor, for a breach of the contract which constituted his lease, until the stat. of 21 H. VIII. c. 15, allowed him to falsify fraudulent recoveries, and to maintain his lease against the recoverer, in the same manner as against the lessor.^ In order therefore to give M\ effect to the contract, the lease was construed to be a mutual COVENANT between the parties, though not expressed * 10 Mass. R. 325, Bates vs. SparreL 2 4 Reeves' Hist. 238. 128 REAL ACTIONS. [CH. III. in the most technical and appropriate language. The words " yielding and paying,''^ were held to be a contract on the part of the tenant, for the payment of rent, by force of which the lord or lessor might maintain an action of covenant or debt, to recover it, if withheld. While the words ^^ grant y demise, ^•<"." amounted to a like covenant on the part of the lessor, that the lessee should enjoy the possession and profits of the land, and recover by action of covenant a recompense in damages if he was deprived of them. The words " demise and grant,^"^ are often said to imply a warranty, on the part of the lessor. But it would be more accurate to say, that they imply a covenant, which gives the lessee as per- fect a remedy as a warranty. For it differs from the implied feudal warranty in its nature and the form of the remedy. The feudal warranty, as has been before remarked, was the consequence of ten- ure ; its remedy was by voucher or warrantia chartce. The other being founded on contract, the remedy Avas necessarily by action for the breach of that contract. There was also an im- portant difference in their operation, which has been before alluded to. The feudal warranty, like the feudal tenure was unalterable. It could not be restrained or affected by express warranties, or any conventional stipulations annexed to it. While tiie implied covenants in a lease might be SEC. v.] COVENANTS. 129 modified and restrained by the insertion of express covenants, according to the pleasure of the parties. And they are always so modified, whenever the lease contains an express covenant on the part of the lessee for the payment of rent, or on the part of the lessor for quiet enjoyment.^ Sect. V. The statute of Quia emptores, having, as we have seen, put an end to the implied warranty annexed to a feoffment, it became neces- sary to introduce into conveyances in fee simple, an express warranty, as its substitute. If the lord aliened his seignory, the tenant would not attorn to the new lord, until he had obtained an express ivarranty from him. If the tenant aliened his fee, the purchaser required an express warranty from him also.^ In the construction of express warranties, the ancient principles of the feudal law were in some measure departed from. The warranty could be expressed only by the word " ivarrantizo,^^ It was not binding upon the heir, unless the grant- or expressly stipulated that he and his heirs would warrant. And the ancestor could no more bind the heir to ivarranty, without binding himself, than he could bind him to the payment of a sum of money, for which he was not bound. ^ 1 4 Co. 80 ; 1 Saund. 60. ^ ^q, i^^ 335^ a. n. 1. ■* Co. Lit, 386, a. 17 130 REAL ACTIOiNS. [CH. III. Express warranty might be either in fee, or for the life of the feoffor or of the feoffee. But if the feoffee was evicted and recovered a recompense in other lands, he held the land so recovered in fee notwithstanding the warranty was /or life only.''' The implied feudal warranty was confined to Vi feoffment, and did not extend to other forms of alienation, introduced after the statute of Quia emptores. An express ivarranty might be annex- ed to every kind of conveyance of a freehold, as a feoffment, fine, recovery, gift in tail, lease for life, &c. and also a release or confirmation, made to the tenant of the freehold.^ But it could not, as was before observed, be annexed to the interest of a lessee /or years, nor to that of a tenant by stat- ute merchant, statute staple, or elegit.^ The reason assigned by lord Coke is, that in any action which lessee for years can maintain, as trespass, Sic. a warranty could not be pleaded in bar. Sect. VI. The title of a tenant, to whom or to whose ancestor a conveyance had been made with warranty, might be assailed, either by the ivarrantor or by his heir, or a stranger. When sued by the warrantor or his heir, the tenant might show the conveyance to rebut, that is, to repel, or bar the action of the demandant.^ But this rebut- 1 Co. Lit. 383, b. 2 Co. Lit. 371 . » Co. Lit. 389, a. * Co. Litt. 365, a. SEC. VI.] VOUCHER. 151 ing the heir was not in consequence of any partic- ular operation of the warranty. For at the com- mon law, whenever the ancestor had the inherit- ance absolutely, he could alien it from the issue ; so that the ivarranty, as to the purpose of rebutt- ing the heir, was perfectly inoperative.^ When a stranger brought a writ of entry or other real action to recover the land warranted, the tenant might vouch, that is, call into court the party bound by the warranty, and require him to defend the title. The warrantor, when thus called upon to defend the title of the tenant, was denom- inated the vouchee. If he came voluntarily into court, he was substituted for the tenant, took upon himself the defence, and the demandant counted, that is, demanded the land against him as tenant. But the vouchee, when he came into court, instead of taking upon himself the defence of the suit, might vouch over, as it was called ; that is, he might vouch his warrantor, who might also vouch in his turn, and so on to the fourth degree, but no farther.^ And the last vouchee who came into court, was substituted for the tenant, and took the defence of the suit upon himself.^ If the court gave judgment for the demandant, so that the tenant lost his land, they at the same time 1 Co. Litt. 373, b. n. 2. 29 Reeves' Hist. 393. 3 Rast. 416, a. 132 REAL ACTIONS. [cH. III. awarded another judgment for the tenant, to recov- er against the vouchee, other lands equal in value to those he had thus lost ; which was called a recovery in valued If the vouchee was not in court, ready to warrant the land, process, called a summons ad ivarrantizandum, was issued to bring him in ; and if he disobeyed, several other kinds of process were awarded against him in succession. If he finally appeared, he might take upon himself the defence, in place of the tenant, as before men- tioned. Or he might deny his obliii:ation to warrant, which was called counterpleadiiig the warranty. The demandant also might allege various objections to the right of the tenant to vouch, which was denominated counterpleading the voucher.^ If the demandant prevailed, where the warrantor had been vouched to defend, the tenant recovered over in value against him, wheth- er he had appeared or not. But this recovery in value was confined to the lands which the vouchee held at the time of the voucher. If the tenant feared a future eviction, and that his warrantor might alien his lands before, he might have a process against him, called a " ivar- rantia chartce quia timet,'''' in which he surmised that he had been evicted, though in fact he had not. The only effect of this proceeding was, that 1 Co. Litt. 101, b. 2 Booth, 50. 53. SEC. VII.] VOUCHER. 133 if he was afterwards evicted, the recovery in value would extend to any lands which the vouchee had, at the teste of the warranta chartce.^ A feoffee could have no advantage of a warranty, after he ceased to be tenant of the land.^ To enable him to vouch, he must have the whole of the estate to which the warranty was annexed, in the land, or in some part of it. Where the warranty was an- nexed to the fee, the tenant who had only a part of the estate, (as a lessee for life, or tenant by the curtesy) could not vouch.^ But he was allowed, as we have seen, to pray in aid, of him who had the reversion or remainder, to which the warranty was annexed, and require him to aid in defending the inheritance.^ The process for this purpose was called a summons ad auxiliandum, and might be counterpleaded like a voucher. Sect. VII. Both voucher and aid-prayer being causes of great delay of justice, and often resorted to by fraudulent tenants for that purpose, they were in several cases restrained by statute, and in some measure discountenanced, even by the com- mon law.^ Where the tenant was evicted without process, and where he was not permitted to vouch his war- rantor, the remedy was by an action of covenant 1 Booth, 240. 2 Co. Litt. 389, a. n. 1. 3 Co. Lit. 385, a. * Booth, 60. ^ Booth, 50. 134 REAL ACTIONS. [CH. III. in which he recovered damages instead of a recom- pense in other lands of his warrantor. In some cases this remedy was preferable to a voucher ; because he who had recovered lands in recompense, might be evicted of them, as before. An assignee might recover in covenant, in many cases where he could not vouch. This is what is intended by the remark of lord Coke, " that there is a diversity between a warranty which is a covenant real, that binds the party to yield other lands in recompense, and a covenant annexed to the land ; for that a covenant is in many cases extended farther than a warranty."^ These considerations, together with some other advantages attending the remedy by action of covenant, caused it to be gradually introduced into the English practice, as a substi- tute for voucher. But the change was chiefly accomplished by the adoption of the Assise of novel disseisin (in which the tenant could not vouch, nor pray in aid, except of the king,) as the common remedy for the recovery of real property.^ In modern times the practice of trying titles to lands and tenements by the fictitious action of Ejectment, and the almost entire disuse of real actions, has further conduced to the same effect. So that vouchers, even in England, except as a part of the formal proceeding of suffering a common ' Co. Lit. 381, b. 5 2 Inst. 411 ; Booth, 214. SEC. VII.] COVENANTS. 1 35 recovery, have long been obsolete ; and the process of War rant a char tee has been disused a century, or more.^ The effect of the ancestors warranty in binding or rebutting the heir, who had no assets from the warranting ancestor, was always confined to those cases in which the heir claimed by purchase. In every such case it binds him, either ivith or without assets, except where the contrary has been enacted by statute. But on examination, it will be found, that the common law has been so far altered, from time to time, by the statute of Gloucester, ch. 3, the statute De donis, the 11 H. VII. ch. 20, and the 4 & 5 of Ann. ch. 16, that in England, the effect of warranty in rebutt- ing or defeating a title which would otheriuise be valid, is confined to two cases. 1. By the stat- ute De donis, the warranty of the ancestor, loith assets, (to prevent circuity of action,) binds the issue in taiL 2. The warranty of the ancestor, tenant in tail in possession, at common law, bars those in remainder, without assets.^ In this state, since estates tail were in effect abolished by the statute of 1791, ch. 60, these cases cease to exist ; and warranty, with us, has no operation, but as a covenant, binding the warrantor only, or his heirs and devisees also, 1 Booth, 241. ' a Co. Lit. 373. b. n. 2. 136 REAL ACTIONS. [CH. Ill, according to the terms of the contract, like any of the other covenants contained in the conveyance.^ The general doctrines and distinctions, with regard to covenants express or implied^ personal or annexed to the realty, with the remedies of the original parties to the contract, or of those who claim in privity of estate, as assignees, remains the same in England, and even here, as in the time of lord Coke. It has been stated in a preceding page,^ that the practice of voucher, with recovery in value upon an eviction, w as never adopted in our courts^ except only as a part of the formal proceedings in a common recovery. Yet it may be proper to apprize the student, that a practice generally pre- vailed, until within a few years, and is not wholly discontinued at the present time, w hich must have owed its existence to some indistinct notions about vouchers. When a writ of entry, or other real action, w as brought to recover lands which had been conveyed with warranty, it was usual for the tenant at the first term to pray process of the court, to summon his warrantor, (unless he vohmtarily appeared,) to defend the title. Upon shewing the deed con- 1 See 9 Mass. R. 395, Austin vs. Gage; 12 Mass. R. 395, Boyce vs. Burrell <^ al. 2 See § 1 of this chapter. SEC. VII.] VOUCHER. 137 taining the warranty, the motion was granted of course^ and the cause was contmued. In the vacation the tenant sued out process, which was called a summons Ad loarrantizandum^ and nearly resembled that ancient writ.^ This was served upon the warrantor by the party himself, like a subpoena on a witness, or by the proper officer, like other process. If the warrantor did not ap- pear at the next term, his default was entered of record, and the tenant abandoned the suit, or de- fended it, as he saw fit. When the warrantor appeared, and undertook the defence, he was not substituted for the tenant, as in the ancient prac- tice, but defended the suit in the tenants name.* If the demandant recovered, it was against the tenant. But the tenant did not recover other lands of equal value, against his warrantor, as by the ancient law. The delay occasioned by this kind of voucher was sometimes objected to on the part of the ^ See the form, Appendix, No. 44. * Since the above remarks were written, it has been under- stood that in one or two counties in Massachusetts^ there have been cases within a few years, in which, upon the appearance of the tenant's warrantor, who came in upon being vouched, the demandant counted anew against him, and the suit proceed- ed in the name of the demandant and the vouchee. But it seems that these proceedings have never been followed up by a judgment that the tenant recover over in value. 18 138 REAL ACTIONS. [CH. III. demandant ; but there were probably no instances of a regular counterplead either to the voucher or the ivarranty, put upon the record. The ancient principles, applicable to these proceedings, were not regarded, nor perhaps generally understood. No attention seems to have been paid to the rule of the common law, "that he only could vouch, who had the whole of the estate, to which the warranty was annexed, in the land, or in some part of it." All tenants, against whom the land was demanded, (as well those who held for life, as tenants in fee simple,) were allowed this kind of voucher. Several grantors of different parts of the demanded premises were vouched, or summon- ed by the same writ ; and no exceptions seem to have been taken, either by demurrer, or motion to set aside the voucher, for any alleged irregularity. These proceedings were considered, as only laying the foundation for an action of covenant against the warrantor, to recover the damages occasioned by the eviction. The only effect, therefore, being to give notice of the pendency of the suit to the grantor, which could be as effectual- ly, and more conveniently done by serving him with a copy of the demandanf s process ; this practice is now generally adopted ; and the pro- ceedings by voucher, as above stated, have of late been almost wholly discontinued. SEC. I.] WRITS OF ENTRr. 139 CHAPTER IV. WRITS OF ENTRY AND THE PROCEEDINGS THEREIN. PART I. The several kinds of writs of Entry, and their application as legal remedies. Sect. I. According; to the strictness of the ancient common law, he who had suffered an injury to his real propety, amounting to an ouster, was without remedy, unless there could be found in the REGISTER, a writ exactly suited to his case. For the writ being regarded as the commission of the king to the judges, to do justice between his sub- jects, the slighest departure from the form pres- cribed by the law was a fatal objection. But such is the extent and variety of this venerable collec- tion of original writs, that perhaps no case could arise in which the party injured by an ouster would not find a remedy for the injury he had suffered, which clearly described his case in the compass of a few lines, without the omission of any material circumstance. So comprehensive and complete is this catalogue of precedents, that 140 REAL ACTIONS. [CH. IV. the provision of the statute* for framing new writs, seems to have been almost unnecessary. And it is justly remarked by Blackstone, that it was equally creditable to the ancient law, that it should contain such a provision, and that there should be so rarely occasion to use it.^ This great collection of writs is arranged under several classes, as writs of Right, writs in the nature of writs of Right, writs of Entry, and writs of Assise. But much of the refinement and nicety of the ancient law has been wisely excluded from our practice ; and many principles derived from the doctrines of feudal tenure, are foreign to the nature of our titles. But ^ew, therefore, of this great variety of writs have been found neces- sary for our purposes. We have accordingly adopted the general ivrit of Right ;^ ivrits of For- medon, and the ivrit of Doiver uncle nihil, both of which are denominated writs in the nature of a writ of Right ; and also the writs of Entry sur disseisin and Entry sur intiusion, with several other writs of Entry. These few writs, (as mod- ified and applied by our law of real property,) possess sufficient variety of form, to afford an appropriate and convenient remedy for every inju- ry amounting to an ouster. 1 13 Ewd. III. ch. 24. 2 3 Bl. Com. 184. 3 See Booth, 87 ; Reg-. Brev. 4. SEC. II.] WRITS OF ENTRY. 141 Sect. II. Writs of entry, of which we shall first take notice, were probably introduced after the time of Glanville, The earliest mention of a writ by that name, is in the beginning of the reign of Henry 1 11.^ It is supposed they were originally invented as a substitute for writs of Right, in certain cases ; and to avoid the trial by battle, to which the tenant was entitled in that action.^ Though usually denominated Possessory actions, they were intended to decide, not only questions oi possession, but of property also. It is accord- ingly remarked by Bracton that questions de possessione were determined by Assises and Recognitions ; questions de proprietate, by ivrits of Entry, by a jury, upon the testimony and proof of those who could prove the case de visu suo proprio et auditu. But if the entry was too ancient to be proved, proprio visu et auditu, as this action was i^i jure proprietatis, it might sometimes be changed to a writ of Right, (propter longissimum ingressum,) by the narratio, or count. And every entry was denominated longis- simus ingressus, which could not be proved by what the witness had himself seen and heard; but must of necessity be proved by tradition : that is, visu et auditu patris, by what the father had seen and heard, and of which he had enjoined his 1 Bract, lib. iv. c. 35, p. 219. ^ j Reeves' Hist. 388. 142 REAL ACTIONS. [CH. IV» son to give testimony. In this case, for want of proof, the tenant was compelled to put himself upon the Great assise, or defend himself by duel} A writ of Right, on the other hand might become a ivrit of Entry, by the form of the count where the entry could be proved proprio visu et aiiditu.^ But though the demandant in a writ of Right might count as upon a writ of Entry, alleging that he was ready to prove it by a jury ; yet as the tenant had his election, either to defend himself by the duel, to put himself upon the Great assise, or to try the fact of the entry by a jury, a writ of Entry could not become a writ of Right, but by his consent.^ With these distinctions, which owed theiF existence to the different modes of trial, adopted in ancient times, we of course have nothing to do, in our practice. All writs of Entry, of which in the ancient law, there were many different kinds, may be arranged under two classes. First, Where the seisin of the tenant originally commenced by wrong, committed either by himself, or by sojue person under whom he claims. The second class includes those cases, where the seisin of the tenant 1 Brae. lib. 4, tr. 7, c. 1, p. 318 ; 1 Reeves' Hist. 365, 387, 390. 2 Brae. lib. 4, tr. 4, c. 4, p. 283, 284. ^ Brae. lib. 4, tr. 7, c. 1, p. 318, b. SEC. II.] WRITS OF entht. 143 is not alleged to have commenced by wrong, but the injury consists in wrongfully loithholding the seisin, after the estate of the tenant has expired, or been otherwise determined, or finally where the title was originally dejective. L The first class comprehends those writs of Entry which are brought against a tenant, who acquired the seisin hy wrong, that is, by disseisin, abatement, or intrusion, done either by himself, or by some one under whom he entered. Of this class are all writs of Entry sur disseisin, which may be brought, not only against the party who committed the disseisin, but against all those who come into the seisin under him.^ Such also were the old writs of Mortancestor, Ayel, Besayel, and Cousinage, (now obsolete,) which were the an- cient remedies against those who came into the seisin after the ancestor's death, by abatement. Of the same class are writs of Intrusion, which lie against those who enter upon the estate, before the reversioner, upon the death of tenant in dower, tenant by the curtesy, or indeed any tenant for life ; and which may be maintained by the rever- sioner in fee, or his heir ; and also by the rever- sioner for life, or the successor or assignee of any reversioner.^ 1 Co. Litt. 238, 239 ; Booth, 174, b. 2 Booth, 183 ; Reg. 233, 234 ; Rast. 415. 416. 144 REAL ACTIONS. [CH. IV. II. The second class, (which are more strictly denominated writs of Entry,) do not charge the tenant with having committed any direct ivrong, but admit that he came to the seisin of the free- hold lawfully, that is, by some conveyance to himself, or as heir or grantee to one who had a defeasible estate, or at least the actual seisin. Of this sort is the writ of Entry ad communem legem, which was the ancient remedy for the reversioner against the grantee of tenant in dower, or tenant by the curtesy, after the death of such tenant.* Such also was the w rit of Entry ad terminum qui presteriit, which was brought by the lessor, or the grantee of the reversion, against the lessee for life, or years, or his assignee, who held over after the expiration of the term.^ Of the same class are the writs of Ciii in vita,^ Cui ante divortium,'^ Dum fuit infra, cetatem,^ Dum non fuit compos men- tis,^ and many more enumerated in the Register. The distinction which we have noticed with regard to writs of Entry, between those that admit the tenant's seisin to have commenced rightfully, 1 Booth, 190; F. N. B. 207. 3 Finch. 92, a; Booth, 172; Reg. 227. 3 Booth, 185 ; Reg. 232, b ; F. N. B. 193. 4 Booth, 188; Reg. 233, a; F. N. B. 204. 5 Booth, 193; Reg. 228, b ; F. N. B. 192. * Booth, 189 ; Reg. 228, b ; F. N. B. 202. SEC. II.] WRITS OF ENTRY. 145 and those which show that it commenced hy ivrong (though not generally much attended to in prac- tice,) it will be useful for the student to bear in mind. It refers chiefly to the form of the writ and count in the ancient practice ; and in our own to the count or declaration, which constitutes a part of the writ. In the latter class of writs, the demandant, after mentioning the manner of the entry, states the injury of which he complains, to consist in a deforcement^ or wrongful withholding the possess- ion from him by the tenant. But in the other, the writ begins with an averment that the seisin of the tenant commenced by ivrong, committed either by himself, or by some other person whom the demandant names, and under whom he affirms that the tenant obtained his seisin. Both kinds of writ show, not only the manner or nature of the tenant's entry, but they also state the reason wherefore the seisin ought not to be withheld from the demandant. And it is from this statement of the circumstances of the entry, that these actions derive their name of writs of entry.* The writ of Entry sur disseisin, when brought against the disseisor himself, hy the disseisee, is generally called by the old law writers, a writ of Entry in the nature of an Assise, because it may 1 Booth, 172. 19 146 REAL ACTION'S. [cH. n% be brought instead of an Assise ; and this it seems lay at the common law.* The writ by the heir of the disseisee against the disseisor, was given by the statute of Westminster I. eh. 47 ; and this only is in strictness, a writ of entry in the qui- Bus.^ The former, however, is by Fitzherhert, and after him by Booth, called indifferently by cither name f and both Coke and Finch* seem to 1 Reg. 228. 2 Reg. 229 ; 3 Reeves' Hist. 33. » Booth, 174,F. N. B. 191. * Finch says, Briefes Dentrie, que sv.rdont sur iin ouster, sont sur un disseisin, ou sur un intrusion. Sur un desseisin, quant le disseisin, est fait a luy, ou ces auncestors, come Briefe Dentrie en le Quibus, ou, (que est tout un,) en nature del Assise. Finch, L. 91, a. These writs are precisely the same in form, except that the latter, (like all writs brought by the heir.) contains the clause of title, as it is called, viz. " quod clamat esse jus et hte- reditatem suam.'''' The name of this, as of many other writs is derived from certain words contained in the established form ; in this case from the words, de quibus, or de quo, which were always required to be inserted in the writ and in the count. But as the same words are also in the writ of Entry in nature of an Assise, there seems to be no reason why both should not be called writs of Entry in the Quibus; but that the iirst had a different name before the second was established. Count in Entry in the nature of an Count in Entry in the. Quilms. 'Assise. J. C. filius et ha?res T. C. petit J. S. petit versus J. ducem Suf- versus T. N. centum acras terrac folk, sex acras terra;, cum pertinen- cum pertinentiis in C. utjus et ha;- tiis, in T. de quibus idem dux in- reditatera suam, et de quibut idem juste et sine iudicio disseisivit pra;- T. injuste et sine judicio disseisivit '(Jictum T. iiC. Rast 273, b. prajdictum T. C. patrem pra^dicti J. C. cujus haeres ipse est, &c. Rast. 279, b. SEC. III.] WRITS OF ENTRY. 147 consider the writ of Entry in the nature of an Assise, and in the Quibus, as the same.^ In our practice, all writs of Entry sur disseisin, against the disseisor, whether brought by the disseisee or by his heir, are usually styled indiscriminately, writs of Entry in the Qiiibus.^ Sect. III. Writs of Entry, it is to be further remarked, are of four kinds, or denominations, which are derived from the origin of the injury complained of.^ The First, (and of this kind is the writ of Entry in the Quibus, of which we have just spoken,) is where the suit is against the party who committed the tvrong, whether abator, intru- der, or disseisor. The second, which is called a writ of Entry in the per, is where the tenant against whom the action is brought, \s either heir or grantee of the original wrongdoer. It has its name from the allegation in the writ, that the tenant has no entry into the lands, but by C. the disseisor, who demised the same to the tenant.* This descent or conveyance from the party who committed the wrong, is said to make a degree, by removing the claim one step from the original 1 Co. Litt. 238, b; Finch, 91, a. 2 See 2 Saund. 38, n. 4; Com. D. Pleader, 3 A. 1. 3 Co. Litt. 238, b ; F. N. B. 201. * In quod idem A. non habet ingressum, nisi per C. qui illud ei dimisit, 4*c. Regist. 229. 148 REAL ACTIONS, [CH. IV. author of the wrong. The third is denominated a writ of Entry in the per and cui. This name applies where there have been two descents, or two alienations, or one alienation a7id one descent. The writ alleges that the tenant has no entry, but hy C. to whom D. demised, who thereof disseised the demandant, or his ancestor.* The fourth is is where the wrong is removed beyond the degrees before mentioned ; and is called a writ of Entry in the post. It does not enumerate the several descents, or alienations,^ as the others do ; but only alleges generally that the tenant has no entry but after A. who was the original disseisor.f Formerly, it seems, if there had been more than two descents or two alienations, the degress were said to be past ; and the demandant was put to his writ of Right. ^ But the statute of Marlhridge^ gave the demandant a writ of Entry after^ or beyond the degrees before mentioned, as well where the degrees were past, as where the tenant came in by disseisin, intrusion, abatement, suc- 1 Co. 2 Inst. 154. 2 lb. 163. ^ 52 H. III. ch. 30. * In quod idem A. 11011 habet ingressum nisi per C cui D. illud dimisit ; qui inde injuste et sine judicio disseisivit 4'C. Regist. 229. t In quod idem A. noti hahet ingressum, nisi post disseisinam, quam L. inde injuste, et sine judicio fecit C. patri, (vel alio an- tpcessnri) prcedicti B. cujus hceres ipse est. 4'C. Regist. 229. SEC. IV.] WRITS OF ENTRY. 149 cession, judgment, ^c. in which last cases it seems to be agreed there was a writ of Entry in the POST, at the common law.^ These distinctions with regard to the degrees in writs of Entry, it is still necessary to observe.^ Though the objection to a mis-statement in this respect, could be taken advantage of only by a plea in abatement.' Sect. IV. It has already been observed, that it is necessary in all real actions, to state with pre- cision the nature of the lorong of which the de- mandant complains. But it may be useful to the student to be a little more particular on this subject. In writs of Entry, the principal circumstances to be attended to, in framing the count or declara- tion, are the proper statement of, 1. The things demanded by the writ. 2. The demandant's title. 3. The nature of the injury complained of. 4. The seisin of the demandant or his ancestor. 5. Within what time. 6. The esplees. 7. The particular statement of the injury. First. Writs of Entry are properly denominat- ed Pleas of Land ; and they lie only for a freehold or inheritance in lands and tenements, in which 1 2 Inst. 153 ; Booth, 173. 2 Co. Litt. 238, b. 3 Rast. 249, a; Booth, 179; Keilw. 93, a ; See the plea, App. No. 56. 150 REAL ACTIONS. [CH. IV. the lands alone are recoverable, without damages.* By the ancient law, tenementum included not only lands, but incorporeal inheritances, in Avhich a man might have a freehold, as rents, commons, and the like.^ And for these a writ of Entry might be maintained. With us the word tenement is applied exclu- sively to land, or what is usually denominated Real property. It includes only immoveable, corporeal hireditaments ; and for these alone this action lies.* 1 Finch, 85, a. 2 Co. Litt. 6, a. * By a statute of Mass. 1795, cli. 53, pews in houses for public worship, are made real estate ; and a writ of Entry may be maintained for the recovery of them. 17 Mass. Rep. 475, Gay vs. Baker. In Boston, however, by a subsequent statute, 1798, ch. 42, tliey are declared to be personal property. It is said by Fitzherbcrt, that a writ of Entry sur disseisin lieth of a Stream, and the writ shall be, ProRcipe A. quod rcddat unum gurgitem ; and that the esplees shall be laid in the taking of the Fish. So also, that it lies for a Passage : or a Common of pasture ad decent boves. But such actions probably would not be sustained with us. It is also said, that where the dis- seisin is of land covered with water, which is afterwards made meadow by the disseisor ; or where one is disseised of land upon which a house is afterwards erected, the writ brought by the dissseisee shall be for a meadotv, and for a house. F. N. B. 190, 191. SEC. IV.] WRITS OF ENTRY. 151 The property sued for may be described as a *' tract of land, containing so many acres ;" or *' so many acres of land ,•" or " a certain mes- suage," called by a particular name, by which it is known, or with the abuttals. According to the old doctrines, it would not be sufficient to demand a certain tenement, because that word includes incorporeal, as well as cor- poreal hereditaments.* Perhaps, however, the distinction would not be now regarded for the reason before suggested. The only practical rule seems to be, that the description shoidd be so certain, as to enable the tenant to understand what is demanded against him, and the sheriff to deliver the seisin, Avithout any information from the de- mandant.^ But when the object of the suit is to settle a disputed line or boundary, the subject of the controversy should be described with the greatest precision. The same thing must not be demanded tivice in a writ of Entry, as where a messuage and a house which is part of the messuage, are demanded in the same writ. This is denominated, bis petitmn.^ 1 Stran. 834, Goodtitle vs. Walton. 2 2 Ld. Raym. 1470, Bindover vs. Sindercombe. 3 Com. D. Pleader, 3 A. 4 ; West. Symb. pt. 2. 77, b. 152 REAL ACTIONS. [CH. IV. Second. In all cases where the demand is upon the seisin of the ancestor, it is proper to count or declare with title, as it is called : which is subjoining to the description of the demanded premises, the words " which he claims to be his right and inheritance," quod clamat esse jus suum €t hereditatem} The same form was adopted where a woman sued a Cui in vita, or a Cui ante divortium, if she claimed b. fee simple,^ In a few ancient precedents of writs of Entry upon the demandant's oivn seisin, we find the words, " quod clamat esse jus suum.^'' But in this case it is more correct to omit the whole clause. Third. The nature and circumstances of the tenant's entry should always be stated with accu- racy and precision. If he came into the seisin rightfully, and the injury consists in a ivithhold- ing the estate by wrong, it is necessary to state the manner in which he entered ; whether immediate- ly, as alienee of him who had the right, or by one who derived title from such alienee ; and to con- clude the charge by alleging a wrongful deforce- ment of the demandant by the tenant. If the tenant came in by wrong, it must be shown whether it was by abatement, intrusion, or 1 Rast. 271, b. 279, b; Reg. 229. 2 Reg. 232,233; Finch, 91. SEC. IV.] WRITS OF ENTRY. 153 disseisin; and also whether it was by his oiV7i act, or by that of his ancestor or grantor. And further, if the seisin of the tenant commenced by abatement, it must be stated whether the demand- ant is heir or devisee ; if by intrusion, whether he claims as remainder-man, reversioner, or as- signee ; and finally, if the tenant is in by dissei- sin, it must appear whether the demandant com- plains of a disseisin done to himself, or to his ancestor.* Fourth. In writs of Entry, the seisin of the demandant, or of him, under or after whom the demandant claims, must be correctly stated. If the demandant complains of a disseisin to himself or his ancestor, he must expressly aljege a corres- ponding seisin. Thus where he demands the inheritance upon his oiV7i seisin, he must allege that he was seised of the " demanded premises," "of the said messuage," or "of the lands or tene- ments aforesaid," with the appurtenances, in his demesne as of fee ; and where he claims only an estate ybr /«/e, the averment should be, that he was seised in his demesne as of freehold. If he sues as heir, he must in the same manner allege that the ancestor, under whom he claims as heir, was seised in his demesne as of fee. And where the ancestor 1 Reg. 228, 234 ; East. 271, 279, 41G. 20 154 REAL ACTIONS. [CH. IV. is tenant pur auter vie, under our statute,* the proper allegation is, that he " was seised in his demesne as of freehold, for the term of the life of one J. S. who is yet living." Where husband and wife are demandants, it must be stated that they were seised in right of the wife.^ And where the complaint is not of a disseisin, but of a deforcement, or holding over, after the determination of a rightful estate, as where the action is against the alienee of the tenant in tail, tenant in dower, or by the curtesy, or other particular tenant, the seisin of such party in fee tail or for life, should always be alleged. Fifth. The time within which the seisin must be averred, depends upon the statute which limits these actions. This time by our law is thirty years ; and is the same when the action is founded on the seisin of the demandant's ancestor-, as upon his own seisin. Even in a writ of Right, if founded upon the seisin of the demandant, the time is the same ; and/orii/ years, when upon the seisin of the ancestor.^ If the demandant should unnecessarily aver a seisin, within a less period than the statute allows, as ten or twenty years, it seems he must fail, if he cannot prove it within 1 Mass. Stat. 1805, ch. 90. 2 1 Saund. 253, n. 4 ; Doug. 329, Pohjblank vs. Hawkins. 3 Mass. Stat. 1807, ch. 75, § 1,2. SEC. IV.] WRITS OF ENTRY. 155 that time, unless he can obtain leave to amend. ^ It is therefore always advisable to state the longest time the law allows. Sixth, In writs of Right, it is held indispen- sably necessary to state an actual seisin of the demandant, or his ancestor, hy taking the esplees or profits of the land.^ And it is proper, (though perhaps not equally necessary,) to be alleged in a writ of Entry. It is however only descriptive of the nature or permanency of the seisin, and therefore not traversable, or necessary to be proved on the trial.^ It seems, indeed, at the present time, to be a formal averment, of the omission of which no advantage could be taken, but by special demurrer.^ Formerly it was usual to state the taking the profits to have been in a time of peace. And in the meaning of the ancient law, a time of peace was when the courts of law were open for the administration of justice. When, therefore, (on account of foreign invasion, civil discord, or insur- rection against the king's government,) the courts were shut, it was denominated a time of ivar ; quia inter arma silent leges. A taking the profits 1 See Finch, L. 88. 2 Co. Litt. 293, a ; 2 Saund. 45, a. b. n. ^ 8 Cran. 246, Green vs. Liter. * Ibid. 156 REAL ACTIONS. [CH. IV. therefore, tempore belli, was of no account in the law.^ This phrase, which had its origin in a state of society which does not now exist, is fallen into disnse, and ought at the present day to be wholly omitted. Seventh. The last circumstance to be noticed here, is the concluding statement of the injury, of which the demandant complains. This, where the seisin commenced by wrong, as by disseisin, intrusion, &c. is generally in some measure a repetition of what was before stated in describing the nature of the injury. Thus, where the charge is a disseisin of the demandant, either by the tenant, or one under whom he claims, the conclusion is concisely, " and the said A. thereof disseised him, and still unjustly withholds the same." But where the demandant counts upon the seisin of the same ancestor, from whom he derives title ; after the allegation of the seisin of the an- cestor, by taking the esplees, the statement of the disseisin must precede that of the descent of the right. When the demandant claims as nephew, or other collateral heir, and against one who came in ty intrusion, after the death of tenant for life, it is the usual course to allege that the ancestor died without heirs of his body : and also to state the 1 Co. Litt. 249, b. SEC. v.] WRITS OP ENTRY. 157 demandcxnt's jje dig ree, and the descent of the rever- sion ; thus, " And from the said J. S. who died without heirs of his body issuing, (or ivithout issue,) the right descended to one M., as sister and heir of tlie said J. S., and from the same M. the riffht descended to him the said B. who now demands the same, as son and heir of the said M. ; and the said A. still unjustly withholds the same."^ We shall only add here one further remark, that in all real actions by the heir, upon the seisin of his ancestor, it is an established rule, that the demandant must show how he is heir. It is not # enough to state generally that he is heir : but he must set forth specially in what mcmner he is heir, with accuracy, otherwise it will be bad on demurrer, or judgment by default.^ Sect. V. The real action most common and familiar in our practice, is the ivrit of Entry siir disseisin in the quibus ; the nature of which has been already explained.^ This is the appropriate remedy in all cases of ouster, where the action is against the disseisor, whether the demandant com- plains of a disseisin done to his ancestor or pre- decessor, or to himself. And they are all now limited to thirty years. ^ 1 Rast. 415, 416. 20 Saund. 45, a, n. '•' Ante, § 2. ^ Mass. Stat. 1807, ch. 75, § 1. 15S REAL ACTIONS. [CH. I\% I. When the demandant in this writ declares upon a disseisin done to himself by the tenant, the form of the count or declaration is more simple and concise than any other real action. And this, we may remember, is the action, which in the old books is generally denominated a writ of En- try, IN THE NATURE OF AN ASSISE.* After des- cribing the premises, the demandant complains that the tenant disseised him thereof, within thirty years last past. He then expressly avers his own seisin, in his demesne as of fee, or fee- hold, within thirty years, by taking the esplees or profits thereof, to some small amount ; and con- cludes with repeating the charge, tliat the tenant " thereof disseised him, and still unjustly with- holds the same."^ As this writ lies for the freehold as well as for the inheritance, it is the proper remedy, where tenant in doiver, tenant by the curtesy, or any tenant for life has been disseised. The only difference in the form of the writ, (when brought by the disseisee,) between the action for the recovery of an estate in fee simple and an estate for life, is in the allegation of the seisin. Where he, who demands the iiiheritance alleges, that he was seised in his demesne as of fee and right, 1 Reg. 228, 229 ; F. N. B. 191 ; Co. Litt. 238, b. ' See the form, Appendix, No. 1 . SEC. v.] WRITS OF ENTRY. 159 the averment of tenant by the curtesy, or other tenant for life, is of a seisin in his demesne as of freehold.^ And where husband and wife, tenants in dower, are demandants, the averment is, that they were seised in their demesne as of freehold, in right of the ivife.^ This distinction as to the form of stating the demandant's seisin, should be strictly attended to : for though a mis-statement in this particular might not perhaps occasion a fatal variance between the form of the count and the evidence, it would clearly be bad, if shewn for cause of demurrer.^ II. When the writ is brought by the heir of the disseisee, against the disseisor, it is strictly a writ of Entry in the Quibus, which, (as we have seen,) did not lie at common law, but was given by the statute of Westminster 1st, ch. 47.^ The form, though very simple and concise, differs from the preceding in several particulars. First. The demandant, after setting forth his demand, and describing the premises, adds the words, " which he claims to be his right and in- heritance." This clause, (which was not usually inserted where the demandant counted upon his own seisin,y is called the averment of title, or ^ See the form, App. No. 2, 2 ^pp j^q 3^ 4 3 Saund. 253, n. 4 ; Doug. 329, Polyblank vs. Haxi-ths: * Reff. 229, a. 160 REAL ACTIONS. [CH. IV, counting with title. And this distinction was formerly observed with great strictness.^ It is conformable to the precedents in the Register and Rastell : though Fitzherbert inserts it in the count upon the demandant^s own seisin also, where he claims the fee simple.^ Perhaps the distinction will not be thought deserving much attention at the present day ; but the most ap- proved precedents are clearly against Fitzherbert. Second. The complaint of the demandant in this case is, that the tenant disseised the ances- tor of the demandant, and not the demandant himself, as in the precedhig case ; and then fol- lows the corresponding allegation of the seisin of that ancestor, by taking the profits, and the des- cent of the right, (not of the estate,) to the demandant, as son and heir, or brother and heir, (as the case may be ;) and concludes with the usual averment, that the tenant still unjustly with- holds the same.^ By the law of England, it will be recollected this action can be maintained by the heir, 07ily when his ancestor has been disseised of an estate in fee siinple. For the heir in tail takes as a pur- chaser, and not by descent ; and where a per- 1 3 Reeves' Hist. 31. 2 Reg. 229; Rast. 279, 283; F. N. B, 191. ^ Appen. 5, 6, 7. SEC. v.] WRITS OF ENTRY. 161 son dies, seised of an estate pur auter vie, it is provided by the English statute of 14 G. II. eh. 20, that it shall be assets for the payment of debts, and the residue shall be distributed as personal estate} But by our statute of descents,^ estates pur auter vie, not devised, descend in the same manner as estates in fee simple. It is manifest therefore, that by our law, the heir whose ancestor has been seised of a freehold of this sort, may maintain his writ of Entry for the recovery of it, in the same manner, as for the recovery of a fee simple inheritance. And the only difference in the form of the count will be in the allegation of the seisin of the demandant's ancestor. Instead of the words " ifi his demesne as of yee," must be inserted " in his demesne as oi freehold, for the term of the life of one W. T. ivho is yet living. ^''^ III. The form of the writ for the successor against the disseisor of the predecessor, and those who come into the seisin under, or after him, in the PER, the per and cui, and the post, very nearly resembles the same writs, when brought in like cases by the heir. The principal difference is the substitution of predecessor in the place of father, mother, Sic. or other ancestor, and success- or instead of heir ; and that the right came to the 1 See 2 Bl. Com. 260. 2 Mass. Stat. 1805, ch. 90, § I. ^ Appen. No. 8. 21 162 REAL ACTIONS. [CH. V. successor, where it is alleged to have descended to the heir.* This action is the appropriate remedy for a clergyman to recover parsonage lands, of which either he or his predecessor has been dis- seised.^ Still it should be recollected, that where the predecessor has been disseised, the successor (whose right of entry is not taken away, or barred, by lapse of time,) may enter, and then bring his writ of Entry upon his own seisin ; or he may proceed upon the seisin of his predecessor, at his election.^ From what has been already said, it is manifest that this writ is the proper remedy for the heir, against the disseisor of his ancestor, where the ancestor has been disseised, and dies without hav- ing; regained the seisin. And in the definition of ancestor, (afitecessor,) not only his progenitors, as parents, grandparents, &:c. are included ; but all his kindred, collateral as well as lineal, who happen to die before him, and from whom he can inherit ; as brother, sister, uncle, aunt, cousin ; and by our statute, (contrary to the rules of the common law,) his child, who dies without issue. In all these cases, the important point to be ^ attended to is the correct statement of the de- 1 See Appendix, No. 9, 15, 19. * 2 Mass. Rep. 500, Weston vs. Hunt. ^10 Mass. Rep. 93, Brown vs. Porter. SEC. VI.] WRITS OF ENTRY. 163 mandant's ctffinity to the ancestor, which must always be set forth with accuracy.^ Sect. VI. It may be useful here to remind the student, that although this writ seems adapted by its form to only one kind of injury, namely, the disseisin of the demandant or his ancestor by the tenant ; yet this action, (like the action of Ejectment in the English courts,) may be resorted to as an effectual remedy in every case of a wrongful loithholding the demandant'' s real prop- erty, if his right of entry has not been lost, or taken away. For, as has been already observed at some length,^ whenever the dernandant can lawfully enter, the effect of such entry is, to gain at least a momentary seisin of the estate. If, therefore, the wrongdoer, after the lawful entry of the owner, still withholds the possession from him, such wrongful withholding is i?i laiv a disseisin. And upon such disseisin the owner may maintain his writ of Entry in the Quibus, setting forth the injury of which he complains, precisely in the same manner as if he had been actually disseised by the tenant, when in the quiet and exclusive pos- session of the property. The principal difference, therefore, between the action of Ejectment and the frst kind of writ of Entry in the Quibus, (in their application to those cases, where there is a 1 2 Saund. 45, a. n. 2 ch^p. 1, § 12, 13. 1G4 REAL ACTIONS. [CH. IV. light of entry, but no actual seisin,) is, that in order to maintain the writ of Entry, an actual entry must be fust made : while the necessity of an actual entry in the Ejectment is superseded by the confession of an entry, in the " consent rule," as it is called. For the confession in that action is equivalent to an actual entry. In every case, therefore, where the action of Ejectment might be maintained, according to the practice of the courts in Eriglandj and in the state of Neiv York, the demandant, according to our practice, may first make an actual entry, and then prosecute his writ of Entry in the Quibus. And this course is frequently adopted in practice ; though the deman- dant always has his election, (where he can law- fully enter,) either to make an entry, and then pursue his remedy by this tvrit ; or he may pro- ceed by such other writ of Entry as is adapted to the injury of which he complains, and which does not require any previous entry to be made, in order to enable him to maintain it. It may per- haps be useful to the student to illustrate these remarks by a few examples. First, If the father or other ancestor of the demandant has been disseised, and has died without regaining the seisin, and the disseisor has died within less than five years after the disseisin, the demandant may prosecute against the heir of the disseisor, his writ of Entry sur disseisen in the SEC. VI.] WRITS OF ENTRY. 165 PER, which is the appropriate remedy where the estate has passed by descent from the disseisor to his heir. And in order to maintain this action, no previous entry need be made. But as the entry of the demandant is not in this case taken away, by the disseisin done to his ancestor, and the descent cast upon the heir of the disseisor, (the disseisor not hav- ing been seised five years before his death,) the de- mandant may elect to make an actual entry, and then bring his writ of Entry in the Qtiihus, instead of his Entry sur disseisin in the per. And if the disseisin has been done to the demandant himself, in- stead of his ancestor, within twenty years, and the estate has descended, (as in the former case,) to the heir of the disseisor, in this case also the demand- ant may elect, as before, to sue his writ of Entry sur disseisin in the per, or to make an entry, and then bring his writ of Entry in the Quibus, charg- ing the tenant as disseisor, ii; the manner before stated. So, also, if there have been tivo or more des- cents after the disseisin, in which case the proper remedy of the demandant would be a writ of En- try sur disseisin in the per and cui, or in the POST ; still if his right of entry remains, he may in these, as in the other cases, make an actual entry, and then prosecute his writ of Entry in the Quibus, instead of the other writs just men- tioned. 16G REAL ACTIONS. [CH. IV. The same principles apply to the relations of predecessor and successor, as to ancestor and heir; particularly in the case of Ministers of parishes and Rectors of churches, who may prosecute their writs of Entry in the per, the per and cui, or the POST, upon the seisin of their predecessors, where their right of entry is not taken away ; or may make an actual entry, and having thus regain- ed a sufficient seisin for that purpose, may bring their writ of Entry upon their own seisin.* Second. In like manner, where tenants by the curtesy, or tenants in dower have aliened their estates in fee or for the life of another, and after their death, the alienees or their heirs or assigns hold over, in these cases the appropriate remedy for the reversioner is by writ of Entry ad co7nmu- nem legem.^ But the right of the reversioner to enter in these cases, is not taken away. He therefore may, if he please, make an actual entry, as before men- tioned, and then resort to the usual remedy u^ion his own seisin, by writ of Entry in the Qiiibus, or he may proceed by writ of Entry at the common law, in the per, the per and cui, or the post, according to the circumstances of his case. 1 2 Mass. R. 502, 503, Weston vs. Hunt. 2 F. N. B. 207; Booth. 190. SEC. VI.] WRITS OF ENTRY. 167 So, also, in the ancient law, if husband seised in right of his wife made a feoffment of her estate in fee, the estate was said to be discontmiied, so that she could not enter, if she survived him. Her only remedy, in this case, to recover the land after the husband's death, was the writ of Cui in vita ; or if she had been divorced from him, a Cui ante divortium} But since the statute 32 H. VIII, ch. 28, this effect of the husband's conveyance is taken away, and the wife may now enter after his death, or a divorce from him, and then proceed, by writ of Entry in the Quibus, as before mentioned. This is indeed the usual course ; and the ancient writs above named have seldom, if ever, been brought in our practice. In the like manner, if a Minister alien parson- age lands, without the assent of the parish, or a Rector without the vestry, it will be valid only during their ministry. And it is no discontinu- ance, so as to take away the entry of the succes- sor. He may enter, and if necessary he may afterwards maintain an action upon his own seisin.^ Third. We shall here mention only one more class of cases, to illustrate the preceding remark, as to the extent of the application of the remedy by writ of Entry in the Quibus. 1 Reg. 232, 233. 2 2 Mass. R. 502, Weston vs. Hunt. 168 REAL ACTIONS. [CH. IV. The student will recollect, that when any ten- ant for life dies seised of lands, and after his death a stranger enters thereon, before any entry by him who is entitled to the remainder or reversion, this injury is denominated an intrusion ; and the ap- propriate remedy is by the writ of Intrusion, which may be brought in any of the degrees, according to the circumstances of the demandant's case.^ But such entry by the intruder does not deprive either remainder-man or reversioner of his right of Entry. They therefore are not confined to the remedy by writ of Intrusion, but may first make an actual entry, as in the cases before men- tioned, and then sue their writ of Entry in the Quihus. And lastly, where the ancestor having died seised, a stranger enters before the heir, (which, it will be remembered, constitutes an abatement,) the ancient remedial writ for this injury was an Assise of Mort d'' ancestor. '^ But here also, as in the preceding cases, the demandant's right of entry remains, of which he may, and in our own practice, perhaps always does avail himself; and then sues his writ of Entry in the Quihus. The same remarks might be extended to the ancient writs of Entry ad terminum qui prtBter- 1 Reg. 233 ; Rast. 415 ; See Appen. No. 26, 27, 28, 29. 2 Reg. 223, b ; Rast. 235, b ; Bootb, 206 ; and see ante, § 2, p. 143. SEC. VII.] WRITS OF ENTRY. 169 iit ;^ Dum non fuit compos mentis ;^ and Dum fuit infra CBtaiem, when brought by the Iieir.^ In all cases of this sort, however, it should be remem- bered that the entry must be made ivithin twenty years from the time the demandant's right accrued, to avoid the statute of limitations. Sect. VII. The next case which claims our attention, is where the disseisor has made a con- veyance in fee, in tail, or for life ; or where the disseisor having died seised, his heir has entered claiming the estate by descent. In each of these cases, a different form of writ from the preceding is required, called a writ of Entry in the per, because it names the person by whom the tenant came into the seisin. And this, according to Finch, Coke, and Blackstone, makes the first degree.^ But Booth and Reeves, after Fleta, consider the original disseisor as the first degree, and this the second.^ It may be useful here to observe, that to make a degree in the title to a freehold, there must be a transfer of the seisin from one person to another, either by act of law, as a descent, or by act of 1 F. N. B. 201 ; Rast. 25 b. 2 p. N. B. 202 ; Rast. 249, b. 3 F. N. B. 192; Rast. 249, b. -» Finch. 90, b; Co. 2 Inst. 153; 3 Bl. Com. 181. 5 Booth, 172; 1 Reeves' Hist. 397; Fleta lib. 5, c. 35, p. 360. C)C) 170 KEAL ACTIO>"S. [CH. IV, him ivfio is in the seisin, as by lawful conveyance. But no estate gained by ivrong makes a degree. In all these cases, the party is said to be, or come in, beyond the degrees, that is, in the post. So also the estate of tenant hy the curtesy, of the lord hy escheat, and a conveyance under the stat- ute of uses, or by judgment or recovery, are all in the post, and do no not make a degree. But tenancy in dower, by the assignment of the heir, is otherwise. The w ife in that case is in the per, that is, hy the husband. Yet if a disseisor assign dower, this makes no degree, but the wife is in the post} It is proper to add here, this further remark, that even when the degrees are past, if the estate comes hack again to the heir or assignee of the disseisor, the degrees are thereby restored, and he is now in the per, as before.^ A writ of Entry in the per may be brought, First, By the disseisee ; Second, By the heir ; or Third, By the successor of the disseisee, and by them only. I. When the disseisee is demandant, after the the statement of his claim, and the description of the premises, (which are the same as in the pre- ceding writs of Entry in the Quihus,) tjie demand- ant, instead of stating that the tenant " thereof 1 Co. 2 Inst. 153 ; Co. Litt. 239, a. 2 Co. Litt. 238, b. 239. a. SEC. VII.] WRiTS OF ENTRY. 171 disseised him," avers that the tenant hath no entry into the premises, but by the disseisor, who demis- ed them to the tenant, and thereof disseised the demandant. Then follows the statement of the demandants seisin by the taking of esplees, (as in other cases,) the disseisin and demise to the tenant by the disseisor, with the usual conclusion, that the tenant still unjustly withholds the same.^ If the demandant claims only an estate for life, in- stead of i\\e fee simple, no other change is required than merely the insertion of the words " as of free- hold," by way of substitute for the words " as of fee and right" in the allegation of the seisin.^ When the action is brought by a corporation, the form is the same as for an individual, except only the substitution of the name of incorporation.^ II. When this writ is brought by an heir, the chief variance in form from the preceding case, where the disseisee is demandant, is the change of "the said B" (the demandant,) to " /. S. father, brother, or son if the said B. whose heir he is ;" and adding, after the description of the premises, the clause of title, " which he claims to be his right and inheritance ;" and also the allegation of the descent of the right from the demandant's ancestor, as in the writ of Entry in the Quibus, by the heir of the disseisee.^ 1 App. No. 10. 2 4pp. No. n. 3 App. No. 12. * App. No. 13. 172 REAL ACTIONS. [CH. IV. III. As to writs of Entry in the per, by the successsor, upon the seisin of the predecessor, it seems sufficient merely to remark, that they differ from the like writs, when brought by the heir, upon the seisin of his ancestor, in the same man- ner which has been already noticed in relation to writs of Entry in the Quibus. In practice, how- ever, they are seldom brought, when the demand- ant can lawfully enter, and sue upon his own seisin. Sect. VIII. The writ of Entry in the per and GUI, the student will recollect, is the remedy when the tenant, against whom the action is brought, is removed one step farther from 'the party who committed the original wrong : as where there have been two conveyances or two descents ; or one descent and one conveyance, since the disseisin. This, like the preceding WTits, can be maintained onhj by the person disseised, or by his heir or successor. In both cases it differs from the writ of Entry in the per, (when brought by the same party,) only in the statement of the manner of the tenants entry, and in the charge of the injury with which the count con- cludes. As to the entry, where the writ in the per states it to be " by J. N. who demised the same to him, and thereof disseised the demandant," the other is "by one F. to whom J. N. demised it, who thereof unjustly disseised the demandant." SEC. IX.] WRITS OF ENTR?. 173 And the concluding charge is, " that J. N. the disseisor demised to F. by whom the tenant enter- ed, and still unjustly withholds the same." But when brought by the heir, the statement of title, the descent of the right, and the demandant's affinity to the ancestor, are the same as in the other writs of Entry.* " These degrees in writs of Entry," says lord Coke, " are necessary to be observed, or else the writ is abateable ; for sicut natura nonfacit sal- tum, ita nee lex.^^^ Sect. IX. When there have been more than two descents or two conveyances, after the dissei- sin, the degrees are said to be past ; and the rem- edy is by the writ of Entry in the post. This writ, like the preceding, may be maintained by the disseisee, or by his heir or successor. The writ of Entry in the post, after the de- grees, that is, after more than two descents or conveyances, was given by the statute or Marl- bridge, ch. 30.^ Before that statute, there was a writ of Entry in the post, where one entered by disseisin, intrusion, abatement, judgmefit, suc- cession, or as tenant by the curtesy. But where there had been more than two alienations or des- cents, after the first wrong, no writ of Entry could 1 App. Nos. 16, 17, 18, 19. 2 Co. Litt. 238. 3 52 H. III. 174 REAL ACTIONS. [CH. IV. be maiiitained at the common law ; the only rem- edy before that statute was by writ of Right.^ In the time of Br act on, and Ions after, it seems to have been usual to insert, in writs of Entry in the post, the following clause, viz. et vnde qucEritur quod pradictus A. ei deforciat. But when the v, rit was in the per, or per and cui, it was always omitted.^ In modern practice, or at least in ours, this clause has generally been omitted. It seems proper, however, to retain at least the latter member of it, in the concluding part of the count. The writ of Entry sur disseisin in the post, whether brought upon the seisin of the demandant or his ancestor or predecessor, very nearly resem- bles the writ of Entry in the per, already men- tioned. The points in which it varies from that writ, are the statement of the tenants entry, in the preceding and concluding part of the count, and the averment at the close, that he deforced the tenant thereof, before the concluding words, " and still unjustly withholds the sarae."^ It is manifest that this writ may be brought by any tenant for life, upon his own seisin as well as by the oicner of the fee. But upon the seisin of the demandant's ancestor, it is equally clear, that it can be maintained, onlv when that ancestor has 1 Co. 2 Inst. 153 ; Finch 90. * 3 Reeves' Hi?t. 3], ' App. No. 25. 21. 22. 23. SEC. IX.] WRITS OF ENTRY. 175 been disseised of an estate \x\fee simple, or a free- hold pz^r auter vie. The iijvit of Entry sur disseisin in the post, upon the demandant'' s own seisin, is the process generally adopted in suffering a common Recovery. The reason for preferring this, to other writs of Entr}-, for the purpose of suffering a recovery, originally was, that the tenant in this writ mi^ht vouch at large, and was not bound to vouch icith- in the degrees ; as he was in writs of Entry in the PER, and the per and cui. It was safer therefore for the purchaser, since no writ of error could be brought in this case, for ^\Ton£ or illegal vouchers : as there might be when the other vrrits were used, and the jyerson vouched iras not ivithin the degrees.'^ In our own practice, the writ of Entry in the POST, is more frequently brought than any other, with the exception only of the writ of Entry in the Quibus, already so fully noticed.- For, as was before observed, it is not confined to cases where there have been more than two descents or two alienations. It lies in all cases where the tenant comes in, after the disseisee, by abatement, intru- sion, disseisin upon disseisin, or by judgment or escheat. And if a ivoraan commit a disseisin, and afterwards take husband and die, and the husband 1 Co. 2 Inst. 154. 243 : Booth. 176. 2 Ante. C^ 5. 6. 176 REAL ACTIONS. [cH. IV. claims to be in, as tenant by the curtesy, he is in the POST. But the wife of the disseisor who is in, claiming as tenant in dower, is in the per, that is, hij her husband.^ Still it is to be remembered, as was before remarked, that where the degrees are past, so that the proper remedy would be, a writ of Entry in the post, if by a further convey- ance, the estate should come hack again, and vest in the feoffee or lessee of the disseisor, the law will consider him as in of his former seisin, and the writ against him must now be in the per.^ Sect. X. We are next to notice the remedies for another class of injuries, (analogous to a dis- seisin,) which in the law are denominated abate- ment and intrusion ; the nature of which has been already explained.^ 1. Where the injury complained of was an abatement, the ancient law, in its great refinement, had provided several remedies, according to the characters of those /rom whom the estate came, or by whom the abatement was made. Thus if the demandant claimed the estate as next heir to his father, mother, brother, sister, uncle, aunt, nephew, or niece, who had died seised in his de- mesne as of fee, (and the tenant was not co-heir of the same ancestor,) the remedy was by Assise of Mort (Pancestor. If the ancestor from whom 1 Co. Litt. 239, a. ^ Co. Litt. 239, a. ^ ch. 1, § 1. SEC. X.] WRITS OF ENTRY. 177 he claimed was the grandfather, great grandfather, or some collateral cousin, the remedy was by ivrit of Ay el, Besayel, or Cousinage. In these writs the only points of inquiry were, whether the an- cestor was seised on the day of his death, and whether the demandant was his next heir. There is, however, some difference in point of form ; the ancestrel writs expressly alleging title in the demandant, while the assise merely prays an in- quiry may be made. If the abatement was by a coparcener, a still different remedy was provided, called, from the principal words in the writ, a Nuper ohiit ;^ and in some cases a writ of Right De rationahili parte^. Where lands were devisable by custom, it was held, even in the time of Bracto7i, that an Assise of Mort d^ancestor, and the writs of Ayel, Besayel, and Cousinage, did not lie. For although the ancestor died seised, it would not certainly follow that the heir was entitled to recover, because the ancestor might have devised the lands. And it seems that immediately after the statute of wills^ had made all socage lands devisable, these writs fell into disuse.^ It appears not to have been thought allowable, or perhaps practicable, to alter 1 Reg. 226 ; Rast. 210. - Reg. 3 ; Rast. 541. ^ 32 H. VIII. ch. 1. " See 1 Leon. 267. 178 REAL ACTIONS. [CH. IV. the ancient form of either of them, by adding an averment that the ancestor died intestate, or with- out having devised the lands in question, so as to accommodate them to the change which that statute had made in the law. They were accor- dingly all given up ; and as the right of entry by the heir was not, in any of these cases, taken away by the abatement, his course was, to make an actual entry, and bring his writ in the Quibus, until real actions became obsolete ; after which he resorted to the remedy by writ of Ejectione frmce, as a substitute.^ In the Colony of Massachusetts a different course seems to have been pursued, even at an early period. The founders of our judicial insti- tutions, (whatever may be thought of them in other respects,) certainly were not bigoted to legal forms. They had no scruples about altering the venerable precedents of antiquity, even without the sanction of legislative authority, where they could be better adapted to their circumstances and wants. Many changes were made by them, in the forms of writs and other process. Among other examples of this sort, is the writ that has long been in use in our practice, in which the demandant alleges the seisin of his ancestor in fee, and that he died so seised, and intestate, and that 1 Booth, 204. SEC. X.] WRITS OF ENTRY. 179 after his death, the tenant, (or some one under whom the tenant claims,) entered, and deforced the demandant.^ This writ, (which is not strictly a writ of Entry,) is different from any precedent to be found in the Register, oy other judicial reper- torium ; but it nearly resembles the ancestral writs above mentioned,^ with the exception of the aver- ment that the ancestor died intestate.^ In practice this writ is seldom resorted to ; it being the more usual, and perhaps the better course, for the demandant to make an actual entry, and then to bring his writ of Entry in the Quibus, as formerly stated. It may be remarked, however, that there seems to be no objection on legal prin- ciples, to the form or substance of this writ. And as it was formerly considerably in use, it was deemed proper to notice it here. 2. The writ of Entry upon an Intrusion, (of which it remains to add one or two remarks,) may be brought by him who has the reversion, or the remainder in fee simple or for life, as heir, assig- nee, or lessor for life of another, after the death of tenant in doiver, tenant by the curtesy, or other tenant jTor life. It cannot be maintained by ten- ant in tail, his remedy being by Formedon ; nor by him who has only a remainder or reversion for 1 See Am. Precedents of Declarations, 362. 3d Ed. 2 Rast. 28, 29. 3 _/^pp. j^^, 25. 180 REAL ACTIONS. [CH. IV. years^ because he has not the freehold. There is nothing peculiar to this writ, however, which seems to require notice. In its form it will be seen that it is somewhat longer, and in some respects, differ- ent from writs of Entry sur disseisin. It may be brought against the Intruder, or those who come into the seisin under him, in the per, the per and cui, and in the post.^ But it is one of those writs which are not frequently brought at the present day, where the demandant can lawful- ly enter, so as to maintain his writ of Entry in the Quibus. Sect. XI. In the preceding part of this chap- ter, the nature and form of those writs of Entry, which may be maintained by the demandant, where the seisin of the tenant origirially commenc- ed by ivrong, have been examined at considerable length. As these constitute the usual remedies by writs of Entry adopted in our practice, there will be occasion for but few remarks on the other class of writs before referred to,^ where the seisin of the tenant is not alleged to have commenced by wrong; but the injury consists in a lorongful withholding the seisin from the demandant, after the estate of the tenant has expired by lapse of time, or been otherwise determined, or where the title was orig- inally defective. '- App. No. 26, 27, 28, 29. 2 Ante, p. 144. SEC. XI.] WRITS OF ENTRY. 181 I. Of the writs which lie for the recovery of lands, where the estate of the tenant commenced rightfully, it will be sufficient to notice three ; though there were in early times some others w hich might he regarded as belonging to the same class. But as to these writs, it is proper to remark a distinction; the two first being grounded upon the determination of the jmrticidar estate, under which the tenant held, and the third upon the breach of a condition. 1. The first is the writ of Entry ad commu- nem legem, which might be brought by him who had the reversion, after the death of tenant in dower, tenant by the curtesy, or any tenant for life ; where such tenant had aliened in fee, in tail, or pur auter vie} It was called a writ of Entry at the common law, to distinguish it from a similar writ, which was given in some other cases, by the statute of Westminster 2, ch. 3.^ This writ lies against the grantee of any ten- ant for life, or his assignee ; and in each case, it very nearly resembles the writ of Intrusion before noticed, against an intruder, after the death of the same tenant. Like all other cases of this class of writs, it is only in the per, the per and cui, and the post, and not against the original party, because he does not come in by wrong.'^ 1 Reg. 224, ; Booth 190 ; Finch, 91, h. 2 Co. 2 Inst. 346. 3 ^pp. No. 30. 182 REAL ACTIONS. [CH. IV. 2. Another writ, very similar to the last, is clenoniinated a writ of Entry ad terminum qui proiieriit, from its containing these words in the ancient form.^ This writ may be brought after the expiration of the lease, by the lessor, or by his heir, to whom the reversion has descended, or by the assignee to whom it has been assigned. And it lies against the lessee for life, or for years, or a stranger, to whom the lessee has assigned, if such tenant or assignee hold over, after the expi- ration of his term ; in which case he is denominat- ed tenant at sufferance. But it does not lie after the death of tenant in dower, or by the curtesy ; for their estate is not properly called a term,^ In the ancient precedents of this action, there is a minute peculiarity, which is noticed in the Reg- ister, in the writ and count ; in both of which, instead of the words " whereupon, he says," unde dicit, (as in all other writs of Entry,) the form in this writ is, " whereupon he complains," unde quceritur.^ This, like the preceding action, is now become nearly obsolete. And as he who has a freehold in the reversion, may enter upon the tenant at suf- ferance, the usual course in our practice is for 1 Finch, 92 a ; Booth, 172 ; Reg. 227 ; F. N. B. 201. 2 Reg. 227, 228 ; Finch, 92. ^ Reg. 228, a; and see Appen. No. 31. SEC. XI.] WRITS OF ENTRY. 183 the reversioner, in the case of a lease /or life^ to enter after the expiration of the life estate, and then prosecute his writ of Entry in the Quibus. But where the lease is for years only, the lessor, or assignee of the reversion, may maintain that action against him, who holds over after the expi- ration of the term, even without first making an entry} 3. The other writ, before referred to, which was founded upon the breach of a condition, was denominated Causa Matrimonii prcelocuti ; and had its name from the particular case, for which it was intended as a remedy. It could be main- tained only by a woman who had conveyed lands to a man in fee, or for life, to the intent that he should marry her ; and where he failed to comply with the condition.^ But as it appears to have become obsolete, even before the time of Rastell, no further notice of it seems necessary. II. Of the other class of writs, before referred to, which arise upon the Disability of the person who made the first estate, two will be briefly notic- ed. 1. The writ of Dum nonfuit compos mentis. 2. The writ of Dumfuit infra cetatem. 1. The writ of Dum nonfuit compos mentis, as its name imports, was the remedy provided by the ancient law, for him, who while he was of J 10 Mass. Rep. 263, Bar6crvs. Root. ^ Re^. 23.3. 184 REAL ACTIONS. [cH. IV. nonsane memory, had aliened his lands mfee sim- ple, in tail, for life, or even for years ; and was afterwards deforced by the alienee, or by any one claiming nnder him} It might be brought by the party* who made the alienation, or by his heir ; 1 Reg. 228, b ; F. N. B. 202 ; Rast. 248, b. * It may appear somewhat remarkable, that notwithstand- ing the authority of the Register and Britton, c. 28, fol. 66, supported by Fitzherhert, N. B. 202, 203, it should have been doubted whether the grantor could maintain this action. It is perhaps equally extraordinary, that the manifestly unreasonable and inconvenient doctrine, should have prevailed so long in the courts of laio in England, that a person of full age could not be allowed to impeach, his own feoffment or deed, on the ground of mental imbecility. See Litt. § 405 ; Co. Litt. 247, a ; 4 Co. 123, Beverly's case. Even in Chancery it seems that the same rule is established ; and that the party can have no relief upon his own application. But after he is found a lunatic, by inqui- sition, his committee may avoid his acts, from the time he is found to have been non compos. See 1 Fonbl. Eq. 47, [5 Ed.] The inconvenience of this doctrine has been strongly felt by the courts of equity. But so anxious have they been to adhere to the rule of law, that they do not allow the lunatic to he a party to a suit, for relief from an act, done while he was non com- pos. 1 Ch. Cases, 112, SmitWs case. And see 2 Bl. Com. 291 ; Co. Litt. 247, a. n. 2 ; Fonbl. Eq. uhi sup. In Connecticut, it has been expressly decided, that the grantor may allege his own mental imbecility in avoidance of his deed. 3 Day, 90, Webster vs. Woodford. And in our coun- try generally, the principle of the English law, above referred to, is not adopted in its whole extent. The law of Massachu- setts, like the Civil lato, extends its protection and control, not SEC. XI.] WRITS OF ENTRY. 185 and as well against the alienee^ as his heir or grantee, in all the degrees. 2. The writ of Dum fuit infra cetatem was the ancient remedy for the recovery of lands which had been aliened by a person under age ; and it might be brought by him who made the alienation, or by his heir} In either case, he could not main- tain this action during infancy. But an infant who had aliened lands might always enter du- ring his infancy, and thereby revest them in himself. And if the lands were aliened by the ancestor, the heir by his entry would be remitted to his ancestor's title. ^ This writ, like the preced- ing, might be brought against the original alienee, or those who came in under him in all the detrrees. Booth makes a question, whether he who had aliened his land during infancy could lawfully enter, after he arrived at full age, either upon the only to persons who from mental incapacity are deemed incom- petent to take care of their property ; but to those also, who by their intemperance, and consequent improvidence, micrht prejudice their own interests, or the interests of their offspring; or bring a charge upon those who are liable for their support. Stat. 1783, ch. 38, § 7; 1818, ch. 60. And the legal investi- gation of the validity of their contracts is usually preceded by the appointment of a Guardian, at whose instance those pro- ceedings are had. 16 IMass. R. 348, Somes vs. Skinner. 1 Reg. 228; F. N. B. 192 ; Rast. 248, b. 2 F. N. B. 192; Booth, 193. 24 186 REAL ACTIONS. [CH. IV. heir or grantee of his alienee, as he could upon the alienee himself} But the doubt docs not seem to be well founded.^ Where an infant conveyed his lands hy feoff- ment, it seems that an entrij was always necessary to avoid the feoffment. The reason is, that the feoffment was an act oi notoriety that operated upon the seisin ; and it was therefore necessary that the act by which it was to be avoided should be equal- ly notorious. But it seems that where an infant conveys by a deed of bargain and sale, or in any other way than hy feoffment, the conveyance may be avoided by an instrument of equal solemnity ; without an actual entry. And a second deed, made after the grantor attains his full age, may have the double operation of defeating the first deed, and also conveying the estate to the second grantee. The law does not require idle and use- less ceremonies. And it is a general rule, that the disaffirmance of a voidable or revocable act, need only be with the same solemnity as the original transaction.^ Neither of the three last mentioned w rits was probably ever in use in Massachusetts. And the 1 Booth, 193. 2 See 3 Burr. 1794, Zoxich vs. Parsons ; 8 Co. 42, b, Whit- tinsham's case. ^ See 14 Johns, 124, Jackson vs. Burchin ; 11 Johns. 541, Jackson vs. Carpenter. SEC. XII.] WRITS OF ENTRY. 187 two preceding, viz. the writs of Entry ad com- munem legem, and Entry ad terminimi qui prce- teriit, have become obsolete and unnecessary. Still these old remedies remain a part of our law ; and there seems to be no reason to prevent their being maintained at the present day, if any one should see fit to resort to them. Sect. XII. It remains to add a few remarks upon the writ of Assise, formerly alluded to as the supposed invention of Glanville, in the reign of Henry II ; and also as having given rise to the dis- tinction so often referred to, between an actual dis- seisin, and a disseisin by election of the disseisee.^ This is not strictly a real, but a mixed action ; in which the disseisee recovered not only the land itself, but damages also for the injury he had sus- tained by the disseisin. The Assise of 7iovel dis- seisin was denominated remedium maxirae festi- num, because the tenant was not permitted to avail himself of those dilatory proceedings, which were incident to real actions. He could not be es- soined, nor cast a protection, nor pray i?i aid of the king. He was not permitted to vouch a stranger, unless he was present iti court, and ready instant- ly to enter into warranty. And besides, the pa- rol should not demur in this action, for the non- ^ See Intro. § 9. 188 REAL ACTIONS. [CH. IV. age of either party.* The promptness of the pro- ceeding, in comparison of writs of Entry, led those who had suffered injuries to real property, not amounting strictly to a disseisin, to allege that they were disseised, for the sake of availing them- selves of this remedy. And during the reign of Edward I, it w^as extended not only to the re- covery of various appendages of the freehold, as rents, commons, and the like ; but of offices, fran- chises, estovers, and other profits of lands ; and for the custody of woods, parks, &c. all which were claimed, as held de lihero tenemento.^ It might be brought, not only by him who was seised in fee simple, fee tail, or for life; but tenant by statute merchant, statute staj^le, or elegit, and a reversioner whose tjcnant had been ousted, a copy holder, or a parson of a chxirch might also have it.^ Exceptions to the ivrit W'ere not favoured ; and many which were fatal in writs of Entry were disallowed in this. Besides, to prevent the delay incident to pleas in abatement, he who pleaded such a plea, was generally required to plead over in bar, or take the general issue, nul tort, nul disseisin.^ 1 Co. 2 Inst. 411; 8 Co. 50 ; Booth, 262. 2 2 Reeves' Hist. 116, 204. ^ Booth. 263. * Booth, 214. SEC. XII.] WRITS OF ENTRY. 189 In the reign of Edward III, the proceedings in Assise of novel disseisin had departed consider- ably from their original simplicity. An assise might now be taken in four different manners. 1. I7i the point of the assise, when the recognitors tried the general issue. 2. Out of the point of the assise, where the defendant pleaded some special matter in bar, to prevent the assise being taken. 3. It might be taken for damages, where the defendant confessed the ouster, or some special fact was found against him, whereupon the recognitors were charged only to inquire as to the damages. 4. The assise might be taken at large. This was when, (notwithstanding some special matter pleaded by the defendant, as a deed,) the recognitors were still directed to try the title and all the circumstances of the plaintiff's complaint. This last mode of taking the assise, was considered the most liberal and equitable. It was often very strenuously opposed by the defendant; but frequent- ly allowed by the judge ; and always, as it seems, when the plaintiff was an infant. The great object of the defendant generally being to obtain delay, he often attempted to plead some matter of law, which being proper for the decis- ion of the court, and not of laymen, would pre- vent the assise being taken. For though it might be sure eventually to be determined against him ; if it deferred the taking of the assise, his chief 190 REAL ACTIONS. [CH. IV. object was attained. The artifice generally prac- tisefl, was by pleading some matter which admit- ted a colourable title in the plaintiff manifest- ly had in point of law; and praying the judgment of the court, whether the assise ought to pass. This was denominated giving colour, about which there were many nice distinctions, and much sub- tile and unprofitable learning.' In the reign of Richard U, the proceedings by Forcible entry and detainer, then introduced, superseded in many cases the Assise of novel disseisin, which had greatly degenerated from its original character and design ; and instead of deserving the ancient epithet oifestinunfremedium, had become, in consequence of the innovations which had from time to time been made, a tedious and often delusive remedy. At length this action, which had almost entirely superseded writs of Entry, was destined, with them, in its turn to give place to the action of Ejectment ; the history and progress of which have been already stated at some length.^ Sect. XIII. In remarking upon the several writs of Entry which have been adopted in our practice, it was incidentally mentioned that these writs might be maintained by him who had been disseised of an estate ybr life, as well as where it ^ Seo 3 Reeves' Hist. 2?, 24. * Chap. 1, § 3. SEC. XIII.] WRITS OF ENTRY. 191 was a disseisin of the inheritance. And it is a general rule, that every person entitled to recover an estate of freehold may maintain this action ; and that it cannot be maintained for the recovery of any estate less than a freehold. There is however one case which may appear to be an exception to the imiversalit}^ of this rule. For where the mortgagor, (after the entry of the mort- gagee for condition broken,) has paid or tendered the amount due to the mortgagee, who still refuses to reconvey, or give up the possession ; the mort- gagor cannot lawfully enter, or maintain his ivrit of Entry for the recovery of the mortgag- ed premises. His only remedy is by a Bill in equity.^ But, as a mortgage conveys only an estate upon condition ; though the mortgagee has a right to enter immediately, (where there is no proviso to the contrary,) still if the money is paid, or the thing stipulated for is done, according to the terms of the condition, the estate of the mortgagee is absolutely determined : and the mortgagor may immediately enter, or resort to his writ of Entry. ^ The distinction between these two cases, the student will perceive, arises from the breach of the 1 3 Mass. R. 559, Hill vs. Payson; ll Mass. R. 131, Per- kins vs. Pitts. - 2 Mass. R. 495. Erskine vs. ToTz-nsend. 192 REAL ACTIONS. [CH. IV* condition in the Jirst, whereby the title of the mortgagee becomes absolute at law ; and the performance of it in the other. For although an Equity of redemption is with us a legal estate ; (the rights and obligations of mortgagor and mortgagee being strictly defined by statute, and no discretionary power being vested in the courts, so that they can either lengthen or shorten the time of redemption for a moment ;) still we have adopt- ed the Jorms of giving relief established in the courts of equity, and the mortgagor, after condition broken, has no other remedy. The student is not however to understand, from the preceding remarks, that it is necessary in all cases, that the demandant, in order to main- tain a writ of Entry, should have either the abso- lute and exclusive dominion over the property, or an indefeasible title. The owner of land over which a public highivay has been established, or of flats, navigable at highivater, as he is seised, (though subject to the easement or right of the public,) may, if he is disseised, maintain his writ of Entry for the recovery of such land} And where any person is actually seised of lands, even by wrong, (as where one enters upon the lands of another by abatement, intrusion, or disseisin, and claims to hold tXiQxw in fee ;) he may maintain a 1 G Mass. R. 454, Perky vs. Chandler. SEC. XIII.] WRITS OF ENTRY. 193 writ of Entry against any one, who enters and obtains the seisin of such lands without titled When the demandant counts upon the seisin of his ancestor or predecessor, he must prove an actual seisin within thirty years, under our statute of limitation.^ A clergyman, therefore, cannot maintain a writ of Entry, to recover ministerial or church lands, upon the seisin of his predecessor, where the parish has occupied such lands, with the consent of the predecessor, more than thirty years.^ So if the demandant counts upon his own seisin, an actual seisin within thirty years must be shown, to enable him to recover. A mere right of Entry, (which would be sufficient to maintain an Ejectment,) will not avail him in a ivrit of Entry, unless there has also been an actual seisin by himself, his ancestor or predecessor, within the period before mentioned. In such case, therefore, the party must first make an entry, and then he may maintain his writ of Entry in the Quibus, upon his own seisin. If the demandant was disseised more than thirty years before the commencement of his action, he must show an actual entry within tiventy years after such disseisin, and also within thirty 1 5 Mass. R. 233, Porter vs. Perkins. 2 Mass. Stat. 1807, ch. 75. •' 1 2 Mass. R. 285, Broran vs. Aye. 25 194 REAL ACTIONS. [CH. IV. years next before the action was brought, or he cannot prevail.* Where lands are devised, it is a general rule of law, that though the devisor died seised, the devisee is not thereupon seised, until he makes an entry, or some act is done by him, or on his behalf, which has the effect of an entry ; as where the lands devised are vacant, or the per- son in possession either claims to hold tinder the devisee, or acknowledges his title. The same principle applies to the devisee of the remainder. For althougth the remainder-man, who claims as devisee after the determination of an estate for life, may have his Formedon in the remainder, without making any previous entry ; yet, as he is consid- ered in law a purchaser, he is not actually seised, upon the death of the teriant of the particular estate of freehold, ivithout an entry, or some equivalent act. If then he should elect to take his remedy by ivrit of Entry, instead of a Forme- don, he must make an entry before he commences his action ; unless it becomes unnecessary, because the possession is vacant, or in a stranger who admits his title. ^ It is proper here to apprise the student, that when we speak of the actual seisin which is necessary to maintain a writ of Entry, it is always to be understood that an actual seisin by 1 10 Mass. R, 100, Bro7£n vs. Porter. - 4 Mass. R. 67, Wells vs. Price. SEC. XIII.] WRITS OF ENTRY. 195 construction of law, (as before explained/ is just as sufficient to maintain that, or any other Real action, as an actual seisin by entrij in fact upon the land.^ Where lands are sold for the payment of the debts of the testator or intestate, by his executor or administrator, pursuant to a license obtained for that purpose, it is immaterial whether the estate sold is in the possession of the heir, or devi- see, or their heirs or assigns. The right to sell is a mere naked poiver, and cannot be defeated by any alienation, or by obtaining the seisin ivrong- fully, as by abatement, intrnsioii, or disseisin. And the purchaser of lands, thus lawfully sold, may enter upon them, and then maintain his writ of Entry in the Qiiibus, upon his own seisin, by virtue of the conveyance and entry .^ The effect upon the seisin, in the case of the levy of an execution, is different. Where an exe- cution is levied upon lands liable to be taken, and seisin is given to the creditor in the usual manner, by the sheriff; if the execution is afterwards duly returned and recorded, the creditor becomes thereby actually seised, whoever may be in possession. And the seisin acquired by the levy will enable him to maintain a writ of Entry, or an action of 1 Introd. § 10. 23 Cranch, 246, Green vs. Liter. 3 5 Mass. R. 241, Willard vs. Nason. 196 REAL ACTIONS. [CH. IV. trespass, at his election.^ But where the levy is upon land not belonging to the judgment debtor, or not liable to be taken in execution, no interest or seisin is acquired by the creditor ; and both he and the officer become trespassers by the levy.^ If the execution is levied upon the rents and prof- its of the estate, for a certain number of years, instead of the land ; such a levy being only a charge or incumbrance, does not disturb the seisin, but it still remains in the ovi^ner of the freehold, as it was before the levy.^ A party thus levying may have an action of trespass, for an injury affecting the rents and profits ; but having no seisin of the freehold, he cannot support a writ of Entry for the recovery of the land. Sect. XIV. By the ancient law, the right of the heir to succeed to the inheritance of his ancestor, and to stand in his place and feudal relation to the lord of whom he held, was consid- ered an individual right. If the tenant left set^er- al sons, the eldest inherited alone, to the exclusion of the rest. And where there were only daught- ers, though they all inherited as co-parceners, still they were considered by the law as constituting together but one heir. These principles were 1 3 Mass. Rep. 523, Gore vs. Brazcr. 3 Ibid ; 9 Mass. Rep. 96, Bott vs. Burnett, ^ 10 Mass. Rep. 260, Borber vs. Root. SEC. XIV.] WRITS OF ENTRi'. I'D? adopted as the fundamental law of descents in England ; and they were finally extended from lineal heirs to collaterals. Hence it became necessary, where co-parceners sued for their in- heritance, that they should all join in the action. And if by reason of death., marriage, releasing her right, or even by entering upon the estate while the suit was pending, one of the parceners became disabled after the commencement of the suit, to proceed in it, the tvhole action might be thereby abated or defeated ; provided the excep- tion was taken in season by a proper plea} From the analogy of our law of descents to the case of co-parceners, the same necessity was supposed to exist here, for joining all the heirs, in an action for the recovery of their inheritance.^ To prevent the inconvenience which would result from this liability of the suit to abate, which has been alluded to, where the heirs were numerous, it was first provided by the stat. 1783, ch. 52, and afterwards by stat. 1785, ch. 62, § 3, " that in all actions of Waste, Ejectment, or other real actions, where possession of the inheritayice, alleged to have descended, is the object of the suit, all the heirs, or any tivo or more of them may join therein, or each one may prosecute for 1 Thelo. Dig. 1. 12, c. 1 ; Gilb. C. B. 254. 2 See 7 Mass. R. 136, Daniels vs. Daniels. 198 REAL ACTIONS. [CH. IV. his particular share of such inheritance." And by the last statute it is further declared, " that the same rule shall extend to joint tenants, who are or may be disseised. There being now therefore no necessity for joining several demandants in the cases provided for by that statute, it follows, as has been already remarked, (chap. 2, ^ 6,) that the process of Summons and severance no loyiger lies in these cases. But the effect of the legal disability of one of the demandants, or his refusal to prosecute, is not removed by the statute. It is proper, however, to notice here one dis- tinction in relation to this subject ; that where the suit is brought by several demandants, and by the death of one of them it is abated; (this event being what is denominated in the law the act of GOD,) the tenant is not entitled in such case, to recover his costs against the other demandants.* But where the suit becomes abated in consequence of the voluntary act of one of the demandants, as by a release of his right, or the marriage of a female demandant, costs are allowed to the tenant.^ With regard to tenants in common, the rule is different. As they have several freeholds, they ^11 Mass. R. 56, Cutts vs. Haskins. 2 10 Mass. R. 131, Poor vs. Robinson; ibid. 179, Oxnard vs. Prop, of Lincoln and Kennebeck Purchase. SEC. XIV.] WRITS OF ENTRY. 199 were always required in all real and mixed actions, to sue severally ;^ except only where the thing sued for is indivisible, in which case they are permitted to sue together from necessity. But the example which is mentioned by lord Coke, does not apply to our practice.^ It seems there- fore, as the statute does not apply to tenants in common, there is no case in our law, (unless they claim by descent,) in which they can join in a real action.^ It may be proper to add, that if a writ of Entry is brought against several joint disseisors, the death of one will not abate the writ ; but the demandant may prosecute against the survivors. For the same seisin and disseisin are still in issue between the parties to the record. But where there is but one tenant, his death necessa- rily abates the suit ; because neither the heir, nor the executor, can prosecute or defend in a real action, where the demandant or tenant dies, pending the suit.^ It is certainly desirable for all the parties, that questions of title to real property should be settled in a single suit, instead of subjecting them to the expense of a separate action by each of the heirs, 1 Litt. § 312. 2 Co. Litt. 195, b ; 197. b. 3 1 Pick. R. 224, Rehoboth vs. Hunt. " 2 Mass. R. 480, Thomas vs. Smitli. 200 REAL ACTIONS. [CH. IV. who may be numerous. But while the law re- mains as it now is, it cannot be improper to caution the young practitioner, not to join many demand- ants in a real action ; especially when the time of limitation has nearly expired. Because the abate- ment of the suit, by the act or death of one of the demandants, might in such a case operate as a per- petual bar. Sect. XV. In commencing a real action, (as in most other cases where a party is sued in his own right,) the demandant has his election to proceed by Original summons, by Capias, or by an Attachment of the property of the tenant. As no damages are recovered in these actions, it is not very common that a special attachment of property is made. But where the demandant has reason to suppose, that when the suit is ended, he may not be able to obtain IVom the tenant the bill of costs which he may recover ; it is prudent and proper to make a special attachment, of suf- ficient amount to secure a fund for that purpose. It being provided by the statute of 1795, ch. 75, that if the tenant in a real action is arrested, " his own bond, and no other, shall ])e required for his appearance to answer to the same ;" there can be little or no inducement to commence the suit by issuing a Capias. SEC. XV.] WRITS OF ENTRY. 201 By another statute* relating to the commence- ment of suits, it is directed, that if the tenant against whom a ivrit of Dower, or other real action is brought, is not in actual possessioti or occupancy of the lands demanded, the person in possession shall be served with a copy of the writ or original summons, or by having it read to him ; or the writ shall abate. But the exception must be made by a plea in abatement, and not by motion or suggestion to the court; unless indeed it should appear by the return of the officer, that some person was in the actual possession, who was not tenant oj the freehold, and was not serv- ed with a copy of the writ. It frequently happens that a party in possession either by actual disseisin, or under a title evidently defective or bad, is disposed to avail himself of his situation, to commit waste upon the land, the possession of which he does not expect long to retain. In such cases a court of equity would grant an injunction to stop the waste, even upon a threat, without waiting to have the injury done.^ We have no legal tribunal clothed with this im- portant preventive power. By the statute before mentioned,^ if the tenant, after a real action com- menced against him, shall commit waste upon the 1 1797, ch. 50, § 4. ^ 1 Atk. 183, Gihsnn vs. Smith. 3 1795, ch. 75, §3. 26 202 REAL ACTIONS. [CH. IV. land, he shall forfeit treble damages, to be re- covered by the demandant, in an action to be commenced after he has obtained judgment and possession of the land. This remedy has been found in practice, to be of little use. For it has generally happened, that the party, thus commit- ting waste, has either absconded before he could be arrested : or was unable, after judgment obtain- ed against him, to repair the injury he had com- mitted. Perhaps at some future time this subject may be thought deserving of legislative conside- ration. Sect. XVI. As the demandant in every writ of Entry must demand ?i freehold, it follows that the tenant against whom the action is brought, must be seised of a freehold, or the action cannot be maintained against him. But if a writ of Entry is brought against one who is not seised of the freehold, he can make the objection only by disclaiming, or pleading non-tenure. And if ho neglects to plead that plea, or pleads the general issue, or any other special plea in bar ; such pleading is an admission of his capacity to defend the suit, as tenant of the freehold.^ By the common law, it was sufficient if the tenant against whom a writ of Entry was brought, 1 5 Mass. R. 352, Highee vs. Rice ; 8 Cranch, 2-13, Gre vs. Liter. SEC. XVI.] WRITS OF ENTRY. 203 (usually denominated the tenant to the precipe,) was seised of the freehold in law, though he might not have the actual freehold} But by statute 1795, eh. 75, ^ 2, it is provided, that the tenants in real actions " shall be holden to answer for so much, or such part of the premises demanded, as they then hold, or are in possession of, which they shall distinguish and set forth by their plea, and disclaim in the rest. And if any of them disclaims in the whole, and the demandant cannot prove the tenant's possession of the premises, or any part thereof he shall recover his costs." It seems, therefore, that if the ancestor commits a disseisin, and dies seised, and the lands descend to his heir, who refuses to enter, (which is the example of a freehold in law, given by Littleton, Y such heir may disclaim by force of this statute, and defeat the a-ction, to which he would have been liable hy the common law. Where there are several tenants, each of whom has disseised the demandant of a distinct parcel ; or where one person having committed a disseisin, conveys distinct parcels to two or more persons who hold in severalty ; the tenants cannot be joined in one writ of Entry, but must be sued in separate actions. And if they are joined, they may abate the demandant's writ.^ On the other I Co. Lit. 358, b. 2 ^ 443. ^ 8 Cranch, 243, Green vs. Liter. 204 REAL ACTIONS. [CH. IV. hand, if two persons commit a disseisin jointly ; or if one disseisor conveys to several persons joiritly, they must be all sued in the same action : for in these cases the estate is joint, and there is only one title. ^ Neither can the demandant have one writ against several tenants in different de- grees : as against one in the per, and another in the PER and cui, or in the post. But where the action is against two or more jointly, a joint hold- ing, or a joint title is admitted, unless they plead sole, or several tenancy, or disclaim as to distinct parcels.^ By the ancient law, in many cases the plaintiff or demandant was not allowed to vary the extent of his claim, by striking out, or abandoning a part of the demand, which he had particularly set forth in his count ; which was denominated abridg- ing his demand.^ But the law seems now to be held otherwise, as well here as in England. And a party may enter a nolle prosequi, as to a distinct part of the demand, or as to one tenant or defend- ant, in any stage of the suit.^ So also in a writ of Entry, or other real action, the demandant may 1 12 Mass. R. 474, Varnumvs. Abbot. ■ ^ 5 Mass. R. 352, Higbee vs. Rice. ^ Com. D. tit. Abridgment, A. 2. ^ See the law upon this subject fully stated in 1 Saund, 207, n. 2. SEC. XVII.] WRITS OF ENTRY. 205 by leave of court discontinue, or enter a nolle prosequi, as to 07ie of several parcels of land, demanded in his writ.^ CHAPTER IV. PART II. Pleadings, Evidence, Verdict, and Judgment in writs of Entry. Sect. XVII. Besides the numerous pleas in ABATEMENT, which are alike applicable to almost all actions, and of which, therefore, no particular notice need here be taken ; there are also several which are peculiar to writs of Entry, and other real actions. Of these pleas, the most important are 1. Alienage. 2. Non-tenure. 3. Joint- tenure. 4. Sole-tenure. 5. Several-tenure. 6. Disclaimer. 1. In time of peace, alienage is no plea in any personal action. And even the plea of alien enemy in time of war, is in that class of actions, only a temporary disability of the plaintiff, which ceases with the termination of the war. Its effect is not to abate the writ, or to defeat the process ^ 16 Mass. R. 348, So^nes vs. Skinner. 206 REAL ACTIONS. [cH. IV. entirely : but only to suspend it during the contin- uance of hostilities.* It is therefore only to the plea of Alien friend, that our attention is now called. This plea can be pleaded only to writs of Entry and other real actions ; and it may be pleaded in bar, as well as in abatement.^ For since an alien has not the capacity of holding estates of freehold in lands and tenements ; he is a fortiori, incapable of maintaining a real action for their recovery. The plea must allege that the demandant was horn out of the allegiance of the Commonwealth, or that he has been expatriated by force of some legitimate act of the government.^ To the plea of alienage the demandant may reply, 1. That he has been duly naturalised. And where the plea is that he loas horn in Eng- land, he may reply, 2. That although born within the allegiance of the king of England, he was an inhabitant of this, or some one of the United States, at the ratification of the treaty of peace of 1783, between the United States, and Great Britain. 3. He may reply in such a manner as to bring his case within the provisions of the treaty of amity, commerce, and navigation, of 1794, between the two countries.^ ^11 Mass. R. 8, Levine vs. Taylor. - 1 1 Mass. R. 1 23, Hutchinson vs. Brock. ^ See App. No. 45. ^ See 9 Mass. R. 460, JlinsHc vs. Martin. SEC. XVII.} WRITS OF ENTRY., 207 2. By the ancient practice, the plea of non-tenure could be pleaded only in abatement of the writ.^ And the same doctrine, until lately, was sanction- ed by our own courts.^ But it has since been determined, upon great consideration, that non- tenure may be pleaded in bar, as well as in abate- ment.^ Non-tenure is either general or special.- In pleading a general plea of non-tenure, the tenant merely denies that he is tena^it of the freehold of the land demanded, or of some parcel of it, which he must particularly describe.'^ In pleading 5;/7ec««Z non-tenure, the tenant not only alleges that he is not tenant of the freehold, but sets forth what interest or estate he has, in the lands demanded against him, as that he is tenant for years, or the like ; but he must also show who is tenant of the freehold, under whom he claims to hold the possession.^ At the common law, if the demandant demand- ed a«-ainst any tenant 7nore land than he held, the tenant might plead non-tenure as to the parcel which he did not hold ; and this plea, if true, would abate the whole writ. But the statute of 25 Ewd. 1 Dy. 210, pi. 27 ; Booth, 179. 2 3 Mass. R. 312, Hunt vs. Sprague ; 11 Mass. R. 216, Keiih vs. Swan. 3 14 Mass. R. 239, Otis vs. Warren. 4 App. No. 46. ■ ^ App. No. 47. 208 REAL ACTIONS. [CH. IV, III. ch. 6, (which maj be considered a part of our common law, it being in force when our ancestors emigrated,) cured this defect, by providing that the writ in such case should only abate as to the part whereof non-tenure was pleaded, and either admitted or proved.* If the tenant does not hold any part of the lands demanded, the writ must of course abate for the whole ; according to the remark of Bracton, Amittere 7ion potest quod non habet, etita cadit breve.^ Non-tenure is not restricted to those cases in which the parties to the suit are to be considered as strangers to each other. If one tenant in common brings a writ of Entry against another, the latter may plead non-te7iure as to the part of the estate which he does not claim.^ Non-tenure may be pleaded in abatement, either with or with- out a disclaimer.'^ And where there is a plea of non-tenure and disclaimer, upon which issue is joined to the country, TiwA found for the tenant ; or where there is no finding upon it, the demand- ant will not be entitled, under such a plea, to judg- ment that he recover his seisin.^ ^ 8 Cranch, 242, Green vs. Liter. ^ Brae. 1. V. c. 27, fol. 431, b. 3 App. 48; 5 Mass. R. 344, Higbee vs. Rice. -^ 3 Mass. R. 312, Hunt vs. Sprague. ^ 10 Mass. R. 64, Porter vs. Rnmmery. SEC. XVII.] WRITS OF ENTRY. 209 Where non-tenure is pleaded, the demandant is generally obliged to reply in such a nnanner, as to maintain his writ, by averring that the tenant, on the day of suing forth the demandant's Avrit, was tenant of the freehold, as by the writ is supposed, and concluding to the country. It seems, indeed, that there can be no occasion for any Other repli- cation in our practice.^ In the reign of Edward III. and afterwards, it was a common artifice for disseisors to attempt to defeat the action of the disseisee, by making a fraudulent feoffment, in order that they might plead non-tenure, though they still continued to receive the profits of the estate. This gave rise to the statute of ] Rich. II. st. 2, c. 9, which provided that the disseisee should have his remedy and re- cover the lands against the disseisor, who continued to take the profits, notwithstanding such secret feoffment ; provided the action was commenced within one year after the disseisin. This period being found too short, it was afterwards extended by Stat. 4, H. IV, c. 7, during the disseisor's life, if he continued to take the profits.^ These were called the statutes of pernors of profits ; which made no inconsiderable figure in the ancient law, and were often replied to the plea of non-tenure. But their operation was consider- 1 App. No. 49. 2 3 Reeves' Hist. 173, 275 ; Rast. 276, a. 27 210 REAL ACTIONS. [CH. IV. ably restricted by the statute of uses ; and they are perhaps now quite obsolete. 3. Joint-tenure is the proper plea, when two or more persons hold jointly, and are not all sued : or where a man \\o\ds j ointlij iviih his ivife, and he is sued alone. If the tenants who plead this plea claim by a joint conveyance, it is usual to plead with a profert of the deed.* But the profert seems unnecessary, because the conveyance is not traversable. This plea seldom occurs in our practice ; be- cause most of those conveyances, as well as devises, which by the common law would have created joi7it estates, are by our statute,^ so construed as to make a tenancy in common ; unless the grantees or devisees are husband and u'ife^ But where two or more are jointly seised, even by ivrong, as by abateiuent, intrusion, or disseisin, and are not all sued, this plea may be pleaded by those who are made tenants. And in the case of a seisin obtained by disseisin, or other wrongful act of the tenants, (as they do not claim by descent, but by purchase,) the ancient forms of pleading seem to have required that they should name some supposed grantor, under whom they pretended to 1 App. No. 50. 2 1785, ch. 62. 3 See 5 Mass. R. 521, Shaw vs. Hearsey ; 8 Mass. R. 274, Fox vs. Fletcher. SEC. XVII.] WRITS OF ENTRY. 211 hold. Bat no prof ert was made of the supposed deed. They were also required to set forth what estate they claimed, whether in fee simple, in tail, or for life. The supposed grant, thus stated in the plea, was not allowed to be traversed ; because the only material point in the plea was, whether another person, not named in the writ, was seised jointly with the tenants. The demandant there- fore was obliged in his replication, to maintain his ivrit, by alleging that the tenants held in the manner therein set forth ; absque hoc, that the person mentioned in the plea, " now has, or ever had any thing in the tenements &c. jointly with the tenants.^'' And the replication should conclude to the country.* Before the statute, De conjunctim feoffatis,^ if the tenant pleaded joint-tenure by deed ov fine, the writ was abated, without the demandant beins allowed to answer ; because he could not aver sole-tenure against the deed or record. But since that statute, he may aver sole tenure against the deed, though not against the fine.^ There is also a plea of joint-tenure on the part of the demandant. This may be pleaded by the tenant where there are two or more joint-ten- ants, who have not all joined in bringing the suit. 1 App. No. 51 i and see Rast. 362, b. pi. 4 ; Booth, .31. 212 REAL ACTIONS. [cH. IV. Ill this case the tenants need not show by whose gift the demandants obtained their title. ^ The o^round of the distinction manifestly is, that the title of the demandants is not presumed to be in the knowledge of the tenants.^ 4. Sole, or entiue-tenure is the proper plea, where the writ is against two or more, and only one of them is tenant of the freehold. By the ancient practice, he who pleaded sole-tenure was obliged to plead over to the action, or vouch. But the demandant, instead of replying to the plea in bar, or to the voucher, was required to maintain his writ, by replying that the tenants held jointly, in manner and form as he in his writ had alleged. If one only of the tenants takes the entire-ten- ure, and the other makes default, pleads non-ten- ure, or says nothing, the demandant may answer the bar, without maintaining his writ.^ If two are sued, and one pleads non-tenure, and the other takes the entire-tenure, and pleads over in bar, the writ shall abate, only against him who pleads non- tenured 5. Several-tenure is much like sole-tenure. It may be pleaded where several persons, holding distinct parcels of the land by several titles, are sued jointly for the whole. In this case each of 1 Thelo. Dig. 1. 11, c. 27, § 2. 2 App. No. 52. ^ App. No. 53, 54; Rast. 276, b ; and see Booth. 33. •* lb. SEC. XVII.] WRITS OF ENTRY. 213 the tenants may point out the distmct parcel which he holds, and aver that he holds such a part of the tenements in severalty ; denying that the other tenants had any thing therein, on the day of suing forth the writ, or ever after. ^ In this case, as in the preceding, the tenant was required, according to the old precedents, to plead over in bar of the action, or to vouch. But the demandant, (instead of replying to the bar or voucher, or taking issue, where the general issue was pleaded over in bar,) v/as obliged by the repli- cation to maintain his writ.^ If, upon pleading this plea, the writ abates, it is not in part, as in the former case, butybr the whole.^ But where the writ is against tivo, and and one of them pleads several-tenure as to one parcel, and the other makes default, or gives no answer, it seems the writ shall only abate for the part set forth in the plea.^ Where the writ is against husband and wife, it is said the husband cannot plead as to part, that he holds in his own right, and as to the residue, in right of his wife.^ 1 App. No. 55 ; Rast. 365, a. 2 App. No. 56; Thelo. Dig. lib. 11, c. 31, § 20; Bro. Sev. Ten. pi. 4, 17, 19. ^ gooth, 34. * Thelo. Dig. lib. 11, c. 31. § 15, 21. Mbid. lib. ll,c. 31,§ 12. 214 REAL ACTIONS. [CH. IV. 6. The plea of disclaimer may also be plead- ed to the ivrit ; though it is not strictly in form a plea in abatement, because, like the plea of non- tenure, it does not give the demandant a better writ. But in our practice it may be pleaded either to the writ, or to the action, at the election of the tenant.* 7. To a writ Entry in the per, the per and GUI, and the post, the tenant may plead in abate- mentj that he did not enter hy or after the person alleged in the writ.^ 8. Where the writ supposes a seisin by a dif- ferent ancestor, from the one who was in fact seised, this, it is said, may be pleaded in abatement. As where the seisin of the demandant's father is alleged, instead of that of his grandfather, who was the last ancestor seised, and upon whose seisin the demandant should have counted.^ But there seems to be little or no inducement to take this exception by a plea in abatement ; since the tenant may, if he please, avail himself of it upon the trial, under the general issue. For if the demandant fails to prove the seisin alleged in his count, he must be non-suited, or have a verdict against him. 1 App. No. 53, see 13 Mass. R. 439, Prescott \s. Hutchinsoru 2 App. No. 57 ; see Rast. 249, a ; Booth, 179. ^ Thelo. Dig. 1. 10, c. 27, § 2 ; Vin. Ent. G. 7, pi. 5. SEC. XVIII.] WRITS OF ENTRY. 215 Nearly the same remark may be applied to the pleading Non-tenure or a Disclaimer in abatement. For although this exception cannot, like the pre- ceding, be taken at the trial, under the general issue ; still the tenant may in our practice have the same advantage by pleading these pleas in bar, that he would by pleading them in abatement. Sect. XVIII. Besides the preceding pleas in abatement, which refer to some original defect m the form of the writ, or the situation of the parties, (and to which several others, now nearly, if not quite obsolete, might have been added ;) we must also notice a few instances, in which the writ is liable to abate, by some occurrence which happens after the commencement of the suit. These mat- ters must, of course, be pleaded puis darrein CONTINUANCE ; and in several cases the party may wholly lose the benefit of these exceptions, by omitting to plead them as early as possible. 1. The first we shall mention is the plea that the demandant has entered upon the lands in ques- tion, and disseised the tenant. This will abate the writ, notwithstanding the demandant may have afterwards conveyed the lands to another person. And where the entry is into a part only of the lands in question, the writ shall abate for tlie whole. ^ 1 App. No. 59; Thelo. Dig. 1. 12, c. 21, § 8 ; Vin. Entry G. 7, pi. 3, 7, 20. 216 REAL ACTIONS. [CH. IV. The tenant may also plead the entry of the of the demandant, in abatement, in a different form, as it seems, by alleging that since the last continuance, the demandant disseised the tenant, and is now tenant himself} It should be here remarked, that an entry ichich ivill abate a ivrit must be an entry /or the purpose of taking pos- session, and not merely a casual going upon the land.^ But an entry after verdict, though before judgment, does not abate the writ.^ 2. If the demandant, or where the suit is brought by several, one of the demandants, being a. feme covert, marries pending the writ, it may be pleaded in abatement, puis darrein continuance^ But if the tenant omits to take the exception at the first term after the marriage has taken place, it seems that omission will be a waiver of it, and he cannot plead it afterwards. 3. The tenant may also plead in abatement the death of one of several demandants, pending the writ.^ In this case the writ being ipso facto abated, and not merely abatable, as in the pre- ceding case ; this plea may be pleaded at any 1 Thelo. Dig. 1. 12, c. 21, § 11. * Plowd. 92 ; 1 Bulst. 9, The Earl of Shrewsbunfs case. 3 Com. D. Abatement, H. 48 ; 2 Brownl. 231, 235. 4 10 Mass. R. \19,0xnard vs. Prop, of Kennebeck Purchase ; Gilb. Hist. C. P. 254 ; App. No. 61. s Bro. Brief, 295; Com. D. Abatement, II. 35. SEC. XVIII.] WRITS OF ENTRY. 217 subsequent term, and is not restricted to the first term after the death of the party. The conclusion of this plea should not be by praying judgment of the writ, et quod hreve cassetur. But it should pray judgment, si Curia ulterius velit procedere} It is not usual in our practice to plead in abate- ment in cases of this kind. The common course is to dismiss the action upon suggestion of the death of a demandant ; the tenant in such case not being entitled to costs. ^ To all these pleas in abatement, if the demand- ant does not demur, he is generally obliged to reply in such a manner, as to maintain his writ. Since wiih the exception of the case already men- tioned,^ of the replication to a plea of non-tenure, " that the tenant fraudulently made a feoffment, and continued to take the profits," there is perhaps scarcely any case, in which either of the pleas in abatement that have been mentioned could be avoid- ed by the replication. It is remarked by Sergeant Williams in his notes on Saunders,'^ that a plea of non-tenure, though it prays judgment of the writ, is not strictly a plea in abatement : for instead of giving the demandant a better ^^Tit it shows that the tenant 1 Com. D. Abatement, H. 33 ; App. 62. 2 1 1 Mass. R. 56, Cutts vs. Haskins. 3 Ante, p. * 2 Saund. 44, n. 4. 21S REAL ACTIONS. [cil. IV. is not liable to the action in any shape. This remark a])plies with great force to the general plea of non-tenure : hut the special plea of non- tenure is strictly a plea in abatement. It express- ly informs the demanclant, against whom his action should be brought. It seems, however, according to the case of Keith vs. Swan,^ that in a writ of entry, brought to foreclose a mortgage, such a plea in abatement would be disallowed. The reason assigned is, that it is a proceeding founded upon statute, and does not decide the right to the free- hold. And any person in possession of the mort- gaged premises is liable to the action of the mort- gagee, uidess he claims by title paramount to that of the mortgagor. Pleas in uhatement to real actions are not common in our practice ; partly, perhaps, on ac- count of their being discountenanced by the courts, but chiefly because such pleas were required by the statute of 1782, c. 11, § 6, to be fded in the Common Pleas, before the jury was impannelled. And besides, the two pleas in abatement which were formerly in most common use, Non-tenure and Disclaimer, may now be pleaded in bar.^ It is proper to observe, that the provision of the statute, respecting the filing of pleas in abatement, 1 11 Mass. R. 216. » 14 Mass. R. 240, Otis vs. Warren ; 13 Mass. R. 439, Pres- coit vs. Hutchinson. SEC. XIX.] WRITS or ENTRY. 219 was confined to actions originally entered in the court of Common Pleas, and did not extend to actions in the Supreme Judicial Court ; but a plea in abatement in that court might always have been filed at any time before imparlance.^ By the statute of 1811, c. 33, the county courts of Common Pleas were succeeded by the Circuit Courts of Common Pleas, and these again, in their turn, by the present court of Common Pleas, by the statute of 1820, c. 79. No particular di- rection respecting the filing of pleas in abatement is contained in either of the two last mentioned statutes ; but they both give the respective courts a general authority to make such rules for the filing of pleas in abatement and demurrers to declarations, as might be thought proper. It seems therefore that the provisions of the statute of 1782, were repealed by that of 1811 ; and conse- quently, that the time for the filing of pleas in abate- ment in the Common Pleas, (until the court shall establish a different rule,) is the same as in the Supreme Judicial Court, that is, at any time before a general imparlance. Sect. XIX. Pleas in bar are much less numerous in real than in personal actions. In writs of Entry, there are but few special pleas which require particular notice ; because a large 1 9 Mass. R. 217, Campbell vs. Stiles. 220 REAL ACTIONS. [CH. IV. proportion of the trials in this action are had under the general issue, non disseisivit. This plea is nearly the same in all writs of Entry. The only difference is, that in writs of Entry in the QiiibuSf the tenant pleads that he did not disseise the de- mandant (or his ancestor,) and in the other writs he denies the disseisin by the person named as dis- seisor in the count.* 2. Non-tenure, it has been already stated,^ may be pleaded in bar, as well as in abatement ; though the contrary doctrine formerly prevailed.^ The form of this plea, when pleaded in bar, is of course different from that adopted in pleading in abatement, both in the commencement and con- clusion. It should begin, like other pleas in bar, with actionem non, ^'C. instead of reddere 7ion potest ; and the conclusion should pray judgment si actio, as in other cases, ..and not judgment of the writ.^ This plea may be pleaded to the whole, or to any part of the demanded premises. And the only replication, it seems, which can be made to it, is by taking issue upon the non-tenure alleg- ed in the plea.^ 1 App. No. 63, 64, 65. 2 Ante, p. 207. 3 14 Mass. R. 239, Otis vs. Warren; 11 Mass. R. 216, Keith vs. S'ji-an. * App. No. 66. 5 App. No. 67. SEC. XIX.] WRITS OF ENTRY. 221 3. The plea of disclaimer, like non-tenure, is very concise, and, like that plea, may be pleaded in bar, as to the whole, or any part of the tene- ments demanded.^ When the tenant claims title to a part, and not to the whole, he generally pleads non disseisivit, as to that part, and disclaims as to the residue.^ And where he pleads in this manner, it seems the demandant may join the general issue, and reply to the disclaimer, or not, at his pleasure. If he replies, it is only by taking issue on the dis- claimer. By the statute of 1795, ch. 75, § 2, before mentioned,^ it is provided, that when any person or persons shall be sued in a real action for any lands, tenements, or hereditaments, they shall be holden to answer for so much, or such part of the premises demanded, as they then hold, or are in possession of, which they shall distinguish and set forth by their plea, and disclaim in the rest. And if any of them disclaims in the whole, and the demandant cannot prove the Xe\\?Ln\?s possession of the premises, or any part thereof, he shall recover his costs. ^13 Mass. R. 439, Prescott vs. Hutchinson. 2 App. No. 68. 3 Ante, p. 203. 222 REAL ACTIONS. [CH. IV. In this case the statute seems to requhe a gen- eral replication that the tenant did claim and hold, much in the same form as the replication to a general plea of non-tenure} The propriety of admitting this plea to be pleaded in bar, may well be questioned. It was introduced when the ancient practice in relation to real actions was less understood and attended to, than it has been in later times. But the adoption of this form of pleading has given rise to some statutory provisions, which seem now to render its contiiuiance necessary ; and no inconven- ience appears to have resulted from the anomaly. At common law, such a disclaimer was never considered a bar to tlie action. So far from showing that the demandant had no right to the demanded premises, it was an acknowledgment of his title. It operated, in some respects, as a release by the tenant. If two tenants were jointly sued, a disclaimer by one of them generally vested the w/io/e in the other co-tenant. Ifo^icow/i/wassued, and disclaimed, whatever estate he had was in effect passed to, and vested in the demandant. He therefore might immediately enter, and would become seised according to the title set forth in his writ : and the tenant would be afterwards estopped from disputing that title. A disclaimer, 1 App. No, 69 ; 14 Mass. Rep. 241, Otis vs. Warren. SEC. XIX.] WRITS OF ENTRY. 223 instead of being a plea to the action, resembled so far a release, or conveyance of the land, that in general no person could disclaim, who was incapa- ble of conveying the land. An infant could not disclaim ; nor a husband who held only in right of his wife. So an abbot, bishop, dean, or other like sole corporation, could not disclaim to the prejudice of the convent or church. But as a disclaimer was never at common law, pleaded in bar of the action ; so neither was it, strictly speaking, a plea iii abatement. It did not give the demandant a better icrit. It contained no prayer for judgment of any kind. It was not concluded with a verification, because it contained no traversable fact. It was, in effect, an offer by the tenant to yield to the claim of the demand- ant, and to admit his title to the land. This, in many cases, gave to the demandant all the benefit of a judgment in his favour : and he therefore suf- fered no loss by having his writ abated, or by having the action stopped at that point. By the common law, no costs were recovered in any suit : and unless the demandant had a claim for damages, he had nothing further to demand of the adverse party. The consequence was, that in those real actions, in which no dama- ges were recoverable, the demandant could make no replication whatever to a disclaimer, and when it was made by a sole tenant, it instantly put an 224 REAL ACTIONS. [CH. IV. end to the suit. But when the demandant was entitled to damages, as he was in some real ac- tions, he might avoid the effect of the disclaimer, by replying that the adverse party was tenant of the freehold. By our laws, no damages are recoverable in any real action. But on the other hand, the costs are considered as a distinct subject of every judg- ment ; and they are by our statute to be awarded to the party prevailing, in all civil actions. There is therefore, notwithstanding the disclaimer, a judg- ment to be entered for costs, for the party who shall appear to have prevailed in the suit. The action cannot be stopped, without entering a judgment, although the disclaimer be admitted by the demandant. If the tenant never had possession of the land, and is willing to relinquish all claim to it, he certainly ought not to pay costs. He shows that the action ought never to have been brought, and that it cannot be maintained against him. The case is analagous to an action of Re- plevin, brought against one who never had the goods in question. In such a case 7ion cepit is a plea in bar ; although it admits the plaintiff's title to the goods. On the other hand, the de- mandant should not, in consequence of a disclaim- er, be held to pay costs ; if his action was rightly commenced against a party liable to his suit. Our legislature accordingly, in the statute of 1795, c. SEC. XIX.] WRITS OF ENTRY. 225 75, having allowed a disclaimer in all real actions, provide the same replication for the demandant, U7idouhtedly for the purpose of giving him costs, which the common law provided for him, when he was entiled to damages.* Where there is a plea of non-tenure and dis- claimer, and an issue to the country, which is found for the tenant, or if there is no finding upon such issue, it seems the demandant will not be en- titled to judgment.^ For although this defence, if maintained by the tenant, docs not disprove the demandant's title to the land in question ; yet it may be considered, between him and the tenant, as a bar to the action ; because it shows that he had no right to maintain an action, in any form, against the tenant. It may be proper to add, that in all cases, the judgment has relation to the plea, and its effect upon the rights of the parties depends upon the nature of the plea. Therefore, if the tenant should have judgment upon a disclaimer, pleaded in bar, the right of the demandant to the land would not be barred by such judgment. Because the record would show that the tenant admitted the demand- ant's title by the disclaimer ; and he would be estopped to deny it aftarwards.^ 1 13 Mass. R. 439, Prescott vs. Hutchinson. 2 10 Mass. R. 64, Porter vs. Rummery. "' 13 Mass. R. 442, Prescott vs. Hutchinson. 29 226 REAL ACTIONS. [CH. IV. Sect. XX. Besides the general pleas already mentioned, the tenant may plead in bar' a convey- ance by the demandant to a third person, under whom the tenant does not claim. For although the tenant may have no title ; still if the demandant has no right to recover, he cannot be permitted to draw into question the seisin of the tenant, wheth- er he acquired it by right or by wrong. ^ But such a deed cannot be given in evidence, under the general issue ; at least for any other purpose than that of rebutting the evidence, which has been given of the demandant's seisin. And \^hcn this plea is pleaded in bar, the de- mandant may reply in such a manner as to show, that though such a deed was executed, nothing in fact passed by the deed ; either because the demandant was disseised before the execution of it, or that the deed, for some other reason, did not take effect. Such a replication, therefore, if true, would effectually avoid the plea. It may often happen, especially in the unsettled parts of our country, where the boundaries of lands are not well ascertained, that the owner of the fee may be disseised, without having any knowl- 1 6 Mass. R. 419, Wolcott vs. Knight; lb. 240, 241, Gould \s. JVewinan ; 5 Johns. 489, Williams vs. Jackson ; see App. No. 70. SEC. XX.] WRITS OF ENTRy. 227 edge of the disseisin. And he may execute a deed of conveyance to a purchaser, equally ignorant of the fact. In such a case it is manifest that noth- ing would pass by the deed. And the law would be most unreasonable, if it determined, that notwithstanding the supposed purchaser can- 7iot maintain his action against the disseisor, (since nothing passed by the deed ;) that still the owner should he barred of his right against the wrongdoer, although he had conveyed nothing by the instrument which he had executed. In this case it is proper to observe, that as the replication alleges new matter, it must of course conclude with an averment, so as to give the tenant an opportunity to answer iL* To the replication, " that nothing passed by the deed," the tenant may rejoin, and take issue upon the fact averred by the demandant. If upon the trial of such an issue, a verdict is found for the demandant, he shall have judgment to recover the land.^ In a writ of Right, where the issue is upon the mere right, it is said every thing but a collat- eral ivarranty may be given in evidence.^ It seems therefore that the te7iant in that action may 1 1 Saund. 103, n. 1 ; App. No. 71. 2 6 Mass. R. 420, Wolcott vs. Knight. 3 3 Wil?. 419, Tyssen vs. Clark. 228 REAL ACTIONS. [CH. IV. be permitted to give evidence^ that the ancestor of the demandant, upon whose seisin he counted, had conveyed the land in question in his lifetime. Consequently it would be competent to the de- mandant to show, that though such a deed was executed by his ancestor, nothing in fact passed by it to the grantee.* To a writ of Entrv in the post, it is said to be a good plea, that the tenant was seised, until the demandant disseised him, and that he re-entered upon the demandant.^ But it does not seem necessary to plead this defence in bar ; at least where the tenant re-entered upon the demand- ant w«7/i/?i /76T«^?/ ?/ert/'5 after the disseisin. There are several other pleas which are mentioned in the books, ^ most of which can only be pleaded, giving colour, as it is called. But they are neither ne- cessary nor useful in our practice. According to the course of proceeding in the English courts, where the demandant in a real action counted upon the seisin of his ancestor, the tenant might plead in bar that the demandant was a bastard, and not heir. The reason for pleading that fact specially in those courts is, because in that country the courts of common law cannot 1 11 Mass. R. 203, Knox vs. Kellock. 2 Booth, 180. 3 Booth, 179; Rast, 272, b ; 273, a; 274, a, b ; 275, aj 280. SEC. XXI.] WRITS OF ENTRY. 229 try the question of bastardy ; but are obliged to issue their mandate to the bishop, to ascertain and certify that fact. But in our courts, that fact may be tried by the jury, like any other ; and, when a question arises upon that point, the demandant must prove that he is heir, as an indispensable part of his title. Sect. XXI. By the statute for the limitation of Real actions, and equitable settlement of cer- tain claims arising therein,^ where the tenant, or person under whom he claims, has had actual possession for the term of six years or more, before the commencement of the action, the jury, if they find a verdict for the demandant, shall, (if the tenant request the same,) also inquire, a nd by their verdict ascertain the increased value of the premises, by virtue of buildings or improvements made by the tenant, or those under whom he may claim. And if the demandant require it, they shall also ascertain what would have been the value of the demanded premises, had no buildings or improvements been made by such tenant, or those under whom he may claim. The demandant may at the same term elect to receive of the tenant the sum that the jury have found the tenements would have been worth, with- out the improvements. And by a subsequent ^ Mass. Stat. 1807, ch. 74, § 2. 230 REAL ACTIONS. [CH. IV. Statute,* it is to be paid to the demandant in three annual instahnents, with interest. If the tenant fails to pay, the demandant shall have his writ of sei- sin. But if the demandant makes no such election, he shall not have his writ of seisin, unless he shall witiiin one year pay the amount of the betterments, (as it is called,) v.ith interest to the time of pay- ment. And by a still later statute,^ the benefit of this provision is extended ro all persons, who at the time of the commencement of the suit may hold hy virtue of a jjossession or improvement ; they, or those under whom they claim, having had actual possession for six years or more, before the commencement of such action. In order to avail himself of the benefit of the statute, the tenant should make his election upon the record, at the original trial. ^ It is usually subjoined to the tenant's plea of the general issue.^ If the demandant desires the inquiry to be made on liis part, he must in like manner put it upon the record, with that of the tenant.^ The intention of the legislature manifestly was to provide for those settlers upon lands, who had entered without the consent or knowledge of the proprietor. And it cannot be so construed, as 1 1809, cli. 84. 3 1819^ ch. 144. ^ 7 Mass. R. 472, Hart vs. Johnson. "* App. No. 72. 5 App. No. 73. SEC. XXII.] WRITS OF ENTRY. 231 to extend to those, who have entered under a law- ful contract, by the performance of which they would have been entitled to a conveyance of the land, or to damages, if the proprietor had refused to perform the contract on his part. For such per- sons cannot be said to hold the lands hy virtue of a possession and improvement.^ But where a person in possession of land, un- der a written contract with the proprietors, for the purchase of it at an agreed price, (for which he gave his promissory note, which was never paid,) afterwards conveyed all his right in the land to a stranger, who had no notice of his contract with the proprietors ; it was held by the Supreme Court of Maine, that the grantee, after more than six years' possession, was entitled to the increased value, by reason of his own improvements, but not for those made by his grantor.^ And a person holding lands under a title believed by him to be good, but which was in fact always bad, in conse- quence of which he has been evicted, is entitled to the benefit of the statute, if he has made im- provenients upon the estate.^ Sect. XXII. If the tenant in a writ of Entry- does not disclaim, or plead non-tenure, but goes 1 12 Mass. R. 329, Knox vs. Hook. 2 1 Greenl. R. 348, Prop, of Kennebeck Purchase vs. Ka-ce- naugh. 3 17 ^^^^^ j|_ 35q_ .Yetc/<«// vs. Saddler. 232 REAL ACTIONS. [CH. IV. to trial upon the general issue, he thereby admits that the demandant has been ousted by him, and that he is tenant of the freehold, from which the demandant was ousted. Neither of those facts therefore need to be proved at the trial on the part of the demandant.^ After pleading the general issue, the tenant shall not be permitted to give evidence that he claimed to be in, as tenant at will only, and not as tenant of the freehold ; because such evidence would be repugnant to the plea.^ And even where several tenants, claiming by distinct titles, are joined in the same writ, and they neglect to take the exception, by pleading in abatement, (as non-temire, several-tenure, or a disclaimer,) but join the general issue, it is an admission that they are joint-tenants of the whole. And if the jury find for the demandant, the verdict must be general, that the tenants disseised him.^ So where there are several tenants in a Real action, who plead the general issue, they cannot be permitted to give evidence that some of them had no title to certain parcels of the demanded premises ; but claimed to hold the same under a third person, who had a legal title thereto."* For 1 8 Cranch, 243, Green vs. Liter ; 5 Mass. R. 352, Highee Rice. '- 7 Mass. R. 381, Pray vs. Pierce. ^ 8 Cranch, 250, Green vs. Liter. * Wheat. 360, Green vs. Liter. SEC. XXII.] WRITS OF ENTRY. 233 such evidence can only be given under a plea of non-tenure or disclaimer. But the tenant may give in evidence a release, which was made to him by the demandant, after the commencement of the action ; notwithstanding the general principle, that the rights of the litigat- ing parties are to be tried and determined, accord- ing to their situation at the time the suit was com- menced.^ From the general principles, which have been thus briefly stated and explained, it results as a GENERAL RULE, that whcrc the tenant in a writ of Entry pleads the general issue, if the demandant proves the seisin of himself, or of his ancestor, upon whose seisin he counts, according to the allegations of his ivrit, he must recover, unless the tenant can show that his own entry was by judgment of law, or by other laivful title.^ If the tenant in a writ of Entry is ousted pending the suit, by a stranger who has a better title, it will abate the writ. So also, if the land is recovered against the tenant by a stranger, it Avill abate the writ, unless the recovery is by col- lusion. But in both cases the matter must be specially pleaded, as a plea puis darrein continu- 1 10 Mass. R. 134, Poor vs. Robinson. 2 6 Mass. R. 418, Wolcott vs. Knight ; lb. 356, A'ewhall vs. Jlopkins. 30 234 REAL ACTIOi\S. [CH. IV. ance. This in some measure resembles the excep- tion of non-tenme, and cannot be given in evidence under the general issue. And if the ouster or the recovery is by collusion, the plea may be avoided by replying that fact.^ The tenant cannot defend himself under the general issue, by showing that he is guardian to the demandant, and as such entitled to enter upon the land, and take the profits. For such an au- thority does not confer any title upon the guardian ; and if he would avail himself of this defence, he must do it by a plea of special non-tenure, in w hich he must set forth the nature and extent of that authority.^ The right of the demandant to recover in a real action often depends upon a comparison of titles, between him and the tenant. And this comparison frequently involves not only the con- struction of the language, and the legal operation of deeds, icills, and the returns of official acts by ministerial officers ; but also, in many instances, the acts, and even the intentions of the parties, or of those under whom they respectively claim. Most of these subjects have been noticed in the INTRODUCTION ; and a particular consideration of 1 14 Mass, R. 410, Walcuit vs. Speiicer ; Com. D. Abate- ment, Ii. 54, H. 56. 2 12 Mass. R. 373, Dunbar vs. Mitchell. SEC. XXII.] WRITS OF ENTRY. 235 them would lead to a more extended discussion, than could be admitted in this place. We shall therefore only remark, that in these actions, as in other cases, the rights of the parties are not always determined by direct and positive evidence. In many cases juries are not only permitted, but required, from certain yac^5 ivhich do appear, to infer or presume the existence of other Jacts ivhich do not appear, and to decide in the same manner as if the presumed facts had been fully proved ; especially after the transaction has been long ac- quiesced in, by those who are interested to im- peach it.* In illustrating the foregoing remarks, in order to explain to the student the application of these principles to the trial of real actions, we shall confine ourselves to two cases. First, Where there is a defect in the documentary evidence of title, of some material circumstance or fact, which may have existed or been done, although it cannot now be proved. Second, Where no written evi- dence of title is produced ; and the party rests upon the possession, connected with the acts and circumstances which accompany it ; and which may be such as to confirm, or to explain, qualify, or control it. ^ See 1 Phil, on Evidence, 119. 236 REAL Actios. [CH. IV. 1. Examples of the first kind frequently occur in the titles derived from conveyances made by persons acting under a power, trust, or authoritiff created bv the owner of the estate, or conferred by the law, as conveyances by executors, adminis- trators, guardians, trustees, attorneys, sheriffs, collectors of taxes, and the like. Thus, where title was derived under the sale of lands by a collector of taxes, it was held, after the lapse of thirty years, that it was not necessary to prove that every recpiirement of the law, in order to render such a sale valid, had been strictly com- plied with.^ The Chief Justice, in pronouncing the opinion of the court, said, that if the jury were satisfied that the defects in the evidence were not chargeable to the default or negligence of the ten- ant, and that nothing in his power to produce was wilfully withheld, they ought to consider every thing proved, which could fairly and reasona- bly he presumed from the facts and circumstances given in evidence. And he added, that at such a distance of time, it would be unreasonable to require of a party strict evidence from documents, which were not entrusted to his custody, nor transferred with his title. So, where the heirs had acquiesced more than twenty years, in a sale of real estate by an admin- ^10 Mass. R. 105. Colinan vs. Anderson. SEC. XXII.] WRITS OF ENTRY. 237 istrator, for the payment of debts, proof being given of a license to sell, and an actual sale of the property at auction ; it was held that the jury might reason- ably presume, that the oath required by law had been taken by the administrator, and that regular notifications had been posted, previous to the sale. And the court further remarked, that at the time this sale took place, there was 7io provision for perpetuating the evidence of sales under a license of court. If under such circumstances, no presumptions were to be allowed in favour of the purchaser, the title to many estates, holden under such sales, would be shaken, if not destroyed. And they added, that these presumptions did not go further than the common case in the English practice, of presuming a grant, after twenty years' undisturbed possession.^ Generally, where there has not been a long acquiescence, heirs at law, creditors, and others interested in an estate, which has been sold by executors or administrators, under a license from a court, are not concluded by such sale, in dero- gation of their rights, unless every essential requi- site or direction of the law, in relation to the sale, has been faithfully complied with. But strangers to the title, who have no privity of estate or inter- 1 3 Mass. R. 399, Gray vs. Gardner. And see 1 Phil, on Evid. 120. 238 REAL ACTIONS. [CH. IV. est, to be affected by the sale, and who pretend none, are not entitled to require strict proof of the proceedings of an executor, administrator, or agent duly authorized to sell, and whose deed, purporting to be made pursuant to such authority, is pro- duced.* And where the fault is not in the party who makes the sale, but in the court that grants the li- cense ; as where a court of Common Pleas, having jurisdiction of the subject matter, grants a license to sell, upon a certificate of the Judge of Probate, not authorized by the circumstances of the estate, the purchaser will be protected." 2. A grant of the land itself may be presumed, as well as a grant of an interest, privilege, or ease- ment in land ; such as a fishery, a right of com- mon, or a right of way. But the grant to be presumed must be of such an estate, as is conform- able to, and not inconsistent with the nature of the possession,, and the acts and declarations of the parties, during the whole period that it con- tinued. For although a party, whose title is clearly made out, is not to suffer, in consequence of misapprehension in relation to its nature and extent ; yet the jury can never be permitted to presume a grant of a greater estate than the party 1 7 Mass. Rep. 488, Knox vs. Jenks. .2 11 Mass. R. 227, Perkins vs. Fairfield. SEC. XXII.] WRITS OF ENTRY. 239 claims for himself, by resorting to the supposition of a mistake as to the extent of his rights. The supposition oi such a mistake is subversive of the whole foundation of the presumption. He there- fore, who would claim from the jury the presump- tion of a grant in his favour, must first establish by competent proof, not only the fact that he was in possession, but also, that he claimed such an interest, as he would have the jury presume had been granted to him : at least, that he never claimed or admitted an inferior title. The law will consider every possession lawful, the commencement and continuance of which is not shown to be wrongful. And it proceeds upon the principle, that every man shall be presumed to act conformably to his rights and his duties, until the conti^ary is made to appear. But from the mere fact of possession, the law only presumes that the present occupancy is by right. Therefore, when a naked possession is proved, unaccompanied by any evidence as to the manner in which it com- menced, it is to be deemed lawful, and that the title is co-extensive with the right which is claim- ed by the party. If he claim an estate less than the fee, the law cannot, contrary to his admis- sions, confer upon him the fee. And it may be here observed, that this principle has no reference to the maxim, that a disseisor cannot qualify his wrong ; because that applies only to those 240 REAL ACTIONS. [cH. IV. cases where the party admits himself, or is proved to be in by disseisin. Presumptions of this kind are adopted from the general infirmity of human nature, the difficul- ty of preserving muniments of title, and the jyublic policy of supporting long and uninterrupted possess- ions. They are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admis- sion of an existing adverse title in, the party in possession. They may, therefore, be encountered and rebutted by contrary presumptions ; and can never fairly arise where all the circumstances are perfectly consistent witii the non-existence of a grant. A fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, it is the policy of courts of law, to limit the presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies, it consti- tutes, ordinarily, a sufficient title or defence, inde- pendent of any presumption of a grant ; and there- fore it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may as well be made in the one case as in the other ; and where the other circumstan- ces are very cogent and full, there is no absolute SEC. XXII.] WRITS OF ENTRY. 241 bar against the presumption of a grant, within a period short of the statute of limitations} In writs of Entry and other Real actions, if the tenant would avail himself of the statute of limitations in relation to the seisin or entry of the demandant, or of those under whom he claims, or the time of commencing the suit, he is not requir- ed to plead it, as in personal actions. In these actions, the whole subject of limitation is matter of evidence on the trial. If the demandant avers a seisin in himself or his ancestor, within a period exceeding the time of limitation allowed for bringing such an action ; (as where he alleges a seisin within forty, instead of thirty years,) the writ will be bad on demurrer. And if he avers a seisin within thirty years, the tenant, by pleading the general issue, does not thereby admit that the action is commenced in season, as in the case where he pleads the general issue in most personal actions. The demandant, after alleging, must also prove the seisin within the period stated in the count. It is true, however, that if the demandant should prove that he or his ancestor entered, and thereby became seised, more than thirty years before the commencement of his action, it ivill be presumed, in the absence of all evidence to the * 7 Wheat. 59, Ricard vs. Williams. 31 242 REAL ACTIONS* [CH. IV* contrary, that his seisin continued until within that period. But if the demandant should prove an entry, (either by himself, or his ancestor on whose seisin he counts,) ihirty two years before the commencement of the action ; and the tenant should then prove an ouster of the same party, thirty one years before the suit; the demandant must now fail, unless he can show a re-entry, within twenty years after that ouster, and conse- quently a seisin within thirty years before the commencement of the action. It may be useful to remind the student, that although every right of entry, (where no disability exists,) is barred by an adverse seisin continued for twenty years, without entry or claim of him who has right ; yet where there is a tenant for years, or for life, with a remainder over for life, or in fee, and the j)articular tenant is ousted by one who afterwards holds adversely to such tenant, for thirty or forty years ; still upon the determina- tion of the particular estate, he in remainder may enter. For the seisin of him who ousted the particular tenant, is not adverse to the remainder- man, and therefore does not affect his right of entry. And even where the particular tenant refuses to enter, so that he in remainder would be entitled to enter immediately ; yet he is not oblig- SEC. XXIII.] WRITS OF ENTRY. 243 ed to enter, until the regular termination of the particular estate.^ Sect. XXIII. Upon the verdict in Real actions, few questions arise in our practice. Care should be taken, however, to have it drawn up in such a manner as to conform to the points in issue between the parties. But if the substance of the issue is found for the demandant, he will be entitled to judgment, though all the circumstances are not found. As where in a writ of Entry against tenant in dower, who pleads that she did not alien, modo et forma ; if it should be found by the verdict, that she aliened in tail, or for the life another, this would be a finding for the de- mandant ; though the alienation was not precisely in the manner that he has declared.^ For in this case the substance of the issue is, whether the tenant attempted to convey a greater estate, than for her own life.^ The jury should pass upon all the matters submitted, and cannot find a verdict as to one part of the demand, and omit to find as to another part of it.^ And where there are several issues 1 9 Mass. R. 508, Wells vs. Prince ; 15 Mass. R. 471, Wal- lingford vs. Hearl. 2 mt. ^ 433. 3 Co. Litt. 281, b. 282, a; and see 10 Mass. R. 64, Porter vs. Rummery. ^ 2 Johns. R. 210, Brock-way vs. Kenney ; 6 Mass, R. 1, Holmes vs. Wood. 244 REAL ACTIONS. [CH. IV. joined, the jury must pass upon each of them ; because a judgment entered upon a verdict, finding only one issue where several are joined, will be erroneous, unless the issues which are not found are immaterial} Where the parties, under the Limitation and Settlement Act,^ pray an inquiry by the jury, as to the increased value of the tenements, by means of buildings and improvements, and also what would have been the value, without the improve- ments, the finding of the jury upon these points should be subjoined to their verdict.' A verdict does not cure a defective title : but where the title is good, though defectively set forth, it will be aided by a verdict for the demandant.* The JUDGMENT for the demandant, in a writ of Entry, upon a default, as well as upon a verdict, is that he recover his seisin in the tenements aforesaid with the appurtenances, and his costs of suit. No damages are recovered in any real action except Dower; though the writ contains an allegation of damage, in compliance with the general form prescribed by statute. But though the demandant cannot recover damages in a writ of Entry, he is not in all 1 4 Johns. R. 213, Van Banthuysen vs. De Witt. » Mass. Stat. 1807, ch. 75, § 2. =» ^pp. No. 74. * 4 Mass. R. 67, Wells vs. Prince; 1 Saund, 228, n. 1. SEC. XXIII.] WRITS OF ENTRY. 245 cases without remedy for the injury he may have sustained, by being deprived of the use and enjoy- ment of his property. For if, at the time he com- menced his action, he had a right of entry into the land in question, he may, after he has recovered judgment in his writ of Entry, main- tain an action of trespass for the disseisin, or, as it is more commonly denominated, for the mesne PROFITS. But where the demandant has lost his right of entry, he is without remedy for the injury arising from the deprivation of the use of his property, as will be more fully explained hereafter.^ The time for entering judgments of course^ in our practice, is on the last day of the term. And all judgments are considered as entered on that day, unless upon motion they are particularly not- ed, as of some earlier day. But where no cause is shown to the contrary, the party who prevails in the suit may have judgment, upon motion, within twenty-four hours after verdict, dejault, or non^ suit.^ Upon the judgment for the demandant, in writs of Entry and other real actions, process of EXECUTION issues, which is denominated a writ of Habere facias seisinam, from the command to the sheriff, in the writ, that he cause the demand- 1 See Chap. 8. 2 8 Mass. R. 119, Herring vs. Polley. 246 REAL ACTIONS. [CH. IV. ant to have seisin of the tenements recovered. The writ also contains a direction to the sheriff to levy and satisfy to the demandant the costs of suit, awarded to him by the judgment, in the same manner as in personal actions. After judgment, this writ may be issued and executed forthwith, except in those cases where the increased value of the tenements, by reason of buildings and improvements, and the value ivithout those improvements, have been ascertain- ed by the jury. But where this matter is found by them, the demandant may make his election, to abandon the land to the tenant, at the price esti- mated by the jury ; in which case the latter must pay the price thus fixed, with the interest thereof, within three years, in three annual instalments. But if the demandant does not elect to abandon the land, he must pay to the clerk, or such other person as the court may appoint, for the benefit of the tenant or other person entitled, such sum with the interest thereof, as the jury may have assessed for the buildings and improve- ments, within one year after the judgment; and thereupon he will be entitled to his writ of Habere facias seisinam.^ This writ is to be exe- cuted by the sheriff or his deputy, who is to cause the demandant to have seisin of the lands recov- * Stat. 1807, ch. 75, ^ 3 ; 1809, ch. 84. SEC. XXIII.] WRITS OF ENTRY. 247 ered, by removing thereform, if necessary, the tenant, or any other persons who may be in pos- session, and putting the demandant or his attorney in their place. He is also to levy the costs, (if the tenant does not pay them,) upon the personal chattels of the tenant, or upon his body. The demandant, who has recovered judgment in a real action, may enter immediately upon the lands recovered, without suing out a Habere facias seisinam ; though the common practice, (especial- ly where the tenant is in actual possession,) is to take a writ, and have it regularly executed by the sheriff. This being done, and the writ with the certificate of the sheriff, being returned and filed in the oflfice, the cause is terminated, and thy parties are again out of court. 248 REAL ACTIONS. [CH. IV, APPENDIX TO CHAPTER IV. Writs of Entry to forclose Mortgages. Writs of Entry by Executors arid Administrators to recover lands set off upon Execution. ^ Sect. XXIV. The restraints which the Feudal law imposed U}Don the alienation of real property, prevented its being made in any considerable de- gree subservient to the common exigences of the owner, either by the sale of it, or as a pledge. Mortgages, it is generally believed, were wholly un- known among the Saxons. But as early as the reign of Henry II. two modes of pledging lands had been introdueed ; both of which were prob- ably borrowed from the customary law of Nor- ma7idy.^ The first was called vivum vadium, because the profits of the land were received by the lender, in discharge of the debt ; after which the pledge was to be restored to the borrower. The other was denominated mortuum vadium, because the profits, received by the lender, did not go to discharge the debt, but were lost to the borrower. The first, says Glanville, is just; the 1 Gr. Coust. ch. 20. SEC. XXIV.] WRITS OF ENTRY. 249 Other is dishonest. And though not prohibited by the King's court, it is considered a species of usuri/. Therefore if one dies, holding such a pledge, and after his death this is proved, his prop- erty shall be disposed of, as the property of a7i It stir er.* This mode of pledging real property soon gave rise to ^reat abuses, as well as inconveniences. For if the money was not paid at the jjrecise time limited in the condition, the lands were forfeited, and forever lost to the debtor. Even in the time of lord Coke, (as appears by the only cases on mortgages contained in his Reports,) the courts of law could give no relief, after breach of the con- dition.* These hardships compelled mortgagors to ap- ply to the court of Chancery, in order to obtain some initigation of the rigour of the common law. And that court seems to have been very willing to avail itself of so fair an opportunity of extending its jurisdiction. It was accordingly soon resolved, that the condition of the mortgage ought to be regarded as a penalty, against which equity should give relief And it immediately became a maxim 1 5 Co. 95, GoodaWs cAse ; lb. 114, Wade's case. * U7ide si quis in tali vadio decesserit, et post mortem ejus hoc prohatum, de rebus ejus non aliter disponeiur, quam de rebus nsurarii. Glanv. lib. x, c. 8. 32 250 IVEAL ACTION^S^ fcH. IV* ill that court, thnt though the condition was not performed, yet, if the debt and interest were paid in a reasonable time, the lender should reconvey the land. This right of having a reconveyance, upon payment of the debt, was denominated an Equity of redemption ; a term invented after the time of lord Coke, or at least not mentioned in any of his works. Soon after this jurisdiction Avas assumed by the Chancery, it became necessary to set limits to the right of the debtor to redeem. And from analogy to the provisions of that part of the statute of lim- itations which relates to a right of entry, it was limited, in common cases, to twenty years, after obtaining quiet and uninterrupted possession of the mortgaged premises by the mortgagee. The different disposition which the law of England makes of real and personal property, upon the death of the proprietor, early gave rise, in these cases, to controversies between the heir at law of the mortgagee, and those who were entitled to distributive shares of the personal property. From- the nature of these controversies, the parties were obliged to resort to the court of Chancery for its direction and decision. That court, from the con- stitution of its jurisdiction, being able to take into view the whole ground of these conflicting rights, soon established a system of principles, the result of which it has attempted to embrace in the SEC. XXIV.] WRIT5 OF ENTRY. 251 GENERAL RULE OF EQUITY, that where a person dies, leaving several funds, one of which must be charged with a particular debt, that which received the benefit by contracting the debt, shall be held to satisfy it} Still the adjustment of these claims upon the death of the parties has always been attended with inconveniences, many of which arise from the different nature of the debt and the pledge^ and the consequent separation of rights. To avoid some of these inconveniences, mortgages in England are often made of a term of years, instead of t"he fee. This course however is by no means free from objection ; because if the estate is foreclosed, the mortgagee will only be entitled to his term. And to guard against this inconvenience, the mort- gagor has sometimes been made to covenant, that upon foreclosure, he would not only confirm the term, but also convey the freehold to the mortga- gee, or such other person as he should appoint, discharged of the equity of redemption.^ In our law, the inconveniences to which we have alluded, would have been much less than in England ; because the disposition which the law makes here, of real and personal property, upon the decease of the proprietor, is very nearly the same. But in addition to this circumstance, it is to be recollected that the legislature has provid- ^ Cruise, Tit. XV. ch. 4. 2 gac. Abr. Mortgage, A. 252 REAL ACTIONS. [CH. IV. ed/ that upon the death of the mortgagee, his executor or administrator shall have the entire con- trol of all his mortgages, which, with the personal property, constitute a fund for the payment of his debts ; and if not needed for that purpose, the proceeds of them are to be distributed as personal property. It may be proper, however, to mention, that where a note and mortgage are made to hus- band and wife, they shall go to the w ife, if she surviv e the husband, and not to his executor.^ The heirs, therefore, having no concern with this part of the ancestor's estate, by our law, we have avoided much of the embarrassment which attends these transactions in England. And our course of proceeding to enforce the right of the mort- gagee, (of which we are now to give some account,) is very different in most respects, from the practice adopted in that country. In the remarks which fol- low, we must confine ourselves to the consideration of the remedy of the mortgagee or his assignee, who is desirous of obtaining possession, in order to foreclose the mortgage, unless the debt is paid. The s[eneral law of Mortgages, and the remedy or relief of the mortgagor, by Bill in Equity, are not embraced by the plan of this Mork, which is limited to Real actions. 1 Stat. 1788, ch. 51. - 16 Mass. R-, 480, Draper vs. Jackson et nx. I SEC. XXV.] WRITS OF ENTRY. 25S Sect. XXV. It has been already mention- ed, that mortgages in Massachtsetts are foreclos- ed, by taking actual possession of the mortgag- ed premises, after condition broken, (either by open and peaceable entry, or under the judg- ment of a court of law,) and continuing such possession three years, without any decree of foreclosure.* The remedy resorted to by the mortgagee or his assignee, for the purpose of ob- taining possession by process of law, is a special writ of Entry, which is expressly authorized by the statute of 1788, ch. 51. Two forms have been adopted in our practice for this purpose ; and both of them are somewhat different from the common writ of Entry sur disseisin, which is used in other cases. For instead of declaring generally upon his own seisin, and a disseisin by the mortgagor, as in a common writ of Entry in the Quibus, the mortgagee or assignee may count in either of two ways. First, Upon his own seisin in fee and in mortgage, so that it may appear that he claims to be tenant in mortgage only, and not the abso- lute owner of the fee.^ Second, He may allege that the mortgagor was seised, and conveyed to him by deed duly executed, which he must plead with a profert, so that on production of the deed, it may appear to be a conveyance in mortgage.^ ^ Intro, p. 34. = App, No. 34. ^ App. No. 37. 254 REAL ACTIONS. {CH. IV. The j^r5^ method, (of declaring specially that the demandant was seised in fee and in mortgage, and that the tenant disseised him,) is good in all cases ; and it seems to be necessary, where the condition appears only by a defeasance, and consequently is not in the possession of the mortgagee. The seco7id form is sufficient, where the condition is a part of the deed, by which the land is conveyed ; because upon oyer of the deed the condition would sufficiently appear. But it is otherwise, where the condition is contained in a deed of defeasance, and is in the possession of the mortgagor. This method of setting forth a deed with a profert, has been more generally adopted in our practice than the othcr.^ But it is liable to objections, not only on account of its unnecessary length, and limited use ; but because it is less simple than the other in its form, and bears but little resemblance to real actions. In its structure, indeed, it is more like an action of covenant, or on the case, than a ivrit of Entry. It has been said in one case, that by the statute, the mortgagee or assignee of the mortgage after the condition is broken, can have only a con- ditional judgment, " to recover his seisin, unless the money due, with the interest and costs. 1 See Am. Precedents, 3d. ed. p. 354, 355. Sec. XXV.] WRITS op eNtri". 255 shall be paid within two months."^ And that from hence arises the necessity of the demandant's alleging that he was seised as mortgagee, so as to bring his case within the statute. For it has long been held, (it is there said,) by our courts, that if the mortgagee declares generally upon his own seisin, and a disseisin by the mortgagor, the latter may plead in bar that the demandant was seised as tenant in mortgage only, the condition of which was broken before the commencement of the suit ; and that such a plea will defeat the demandant's action.^ It is not very obvious upon what ground it could ever have been held, that this exception was matter in bar, even admitting that it might be pleaded in abatement. But the law, as laid down by the Chief Justice in that case, has since been doubted, if not overruled.^ A mortgagee of the remainder or reversion, after an estate for life, may maintain his writ of Entry to foreclose, during the life of the particular tenant. For between mortgagor and mortgagee, it is no answer to an action by the latter to fore- close, that the former is not tenant of a freehold in possession. The particular tenant cannot be 1 Stat. 1785, ch. 22, § 1 ; 2 Mass. R. 493, Erskine vs. To-wnsend. 2 ibj^^ 495^ 497 3 13 Mass. R. 519, Green vs. Kemp. 256 REAL ACTIONS. [cH. IV. affected by such a recovery. And there is no rea- son why the mortgagee of a remainder or reversion should not be permitted, as soon as there is a breach of the condition, to bring his suit to fore- close.* The mortgagor being considered only tenant at will to the mortgagee, the latter may assign the mortgage without making an entry. ^ And when the mortgage is assigned, either by endorsement, or a separate instrument, the assignee is put in the place of the mortgagee, to every purpose, unless a different intention appears.^ It has been a common practice for assignees of mortgages, in actions brought by them to foreclose, to set forth each assignment specially, and with a profert.^ This has probably happened from a sup- posed analogy to actions of covenant or debt, by the assignee of the reversion, against the lessee or his assignee. The supposed analogy however does not exist. And the concise form before referred to, in which the demandant counts generally upon his own seisin in fee and in mortgage,^ is equally proper, whether the demandant is mortgagee or assignee. 1 13 Mass. R. 430, Penniman vs. Hollis. - 8 Mass. R. 56G, Reading of Judge Trowbridge. 3 1 2 Mass. R. 30, Hills vs. Eliot. '' See Am. Precedents, 3d. ed. p. 355. 5 App. No. 31. SEC. XXV.] WRITS OF ENTRY. 257 But where the other form is adopted, in an action by the assignee of a mortgage ; his setting forth the deed to the mortgagee specially with a profert renders it necessary to set forth all the assignments also, in the same manner.^ Though the mortgagor remains in possession, after the execution of the mortgage, it is no dis- seisin of the mortgagee, hut at his election. Con- sequently he may convey the mortgaged lands to a third person, who will thereupon be seised of the legal estate therein, subject to the condition con- tained in the mortgage. Such a conveyance is not a mere assignment of a chose in action^ but an alienation of the legal estate. After the as- signment therefore, the mortgagee has no longer any right or interest in the mortgaged premises. It necessarily follows, that the assignee must now bring the suit to foreclose, and the mortgagee can no longer maintain an action for that purpose, or even to recover seisin of the lands before condition broken. And if he attempts to bring such an action, his alienation of the mortgaged premises may be pleaded in bar.^ Where the bond, to secure the payment of which the mortgage was given, is assigned with it, the assignee will be entitled, in his action 1 App. No. 37. 2 6 Mass. R. 241, Gould vs. Newman, 3.3 258 REAL ACTIONS. [CH. IV. brought to foreclose the mortgage, to have the conditional judgment entered in his own name^ although a judgment may have been before obtain- ed upon the bond, in the name of the obligee.* If a mortgagee or the assignee of a mortgage dies before the mortgage \s foreclosed, not only the debt belongs to the executor or administrator^ to be administered according to law ; but the mort- gage also, (which is only a security for the debt,) goes with it. And by the statute of 1788, ch. 51, § 1, before referred to, the executor and adminis- trator are expressly authorized to bring actions for the recovery of lands and tenements, mortgaged to the testator, or intestate, in which case it shall be sufficient to declare upon their seisin. It follows, therefore, that the heirs of the mortgagee, as such, have no right or interest in the mortgage, whicii w ill entitle them to enter, or to maintain a writ of Entry, for the purpose of foreclosing.^ But if the mortgagee has taken possession, and the term of redemption has expired in his lifetime, his estate therein is of course become absolute, and descends to his heirs, like his other real prop- erty, over which the executor has no control, ex- cept a mere power to sell, if necessary, for the payment of debts. ^ 1 6 Mass. R. 242. ^ jg ^agg. r. oi, Smith vs. Dyer. ' 4 Mass. R. 359, Drinkvcater vs. Drinkxiater. SEC. XXV.] WRITS OF ENTRY. 259 Whether, if the mortgagee has taken posses- sion, by entry, or action at law, for condition broken, and dies before the time of redemption has elapsed, the heirs, upon whom the seisin is cast, shall bring any action which may become necessary, does not appear to be decided. It seems however, that in such a case the executor might discharge the mortgage ; and if the heir should receive the money, and give a discharge, he would be a trustee for tlie benefit of the executor, or rather of those who were entitled to the personal estate. For until foreclosure, the mortgaged estate is to be considered in law as a pledge for the debt ; and upon the decease of the mortgagee, it is to be treated in every respect as a debt, by the executor or administrator.* An executor or administrator, appointed here, may not only maintain an action to foreclose a mortgage to the testator or intestate, and discharge it upon receiving the amount of the debt ; he may also assign both the mortgage, and the debt it was intended to secure. But it has been decided that an administrator deriving his authority from an appointment in another state, cannot assign a mortgage of land situated in this state, or maintain a writ of Entry to foreclose such a mortgage.^ 1 16 Mass. R. 22, 24, Smith vs. Dyer. ^ 1 Pick. R. 81, CiUtem. Davenport. 260 REAL ACTIONS. [CH. IV. When a writ of Entry to foreclose a mortgage, is brought by an executor or administrator, it is proper to aver his right in that capacity, to hold the demanded premises in mortgage. But it is not usual or necessary in our practice to make profert of the letters testamentary or of adminis- tration, or even to aver expressly the probate of the will.^ And if the tenant would draw in ques- tion the authority of the demandant to sue in character of executor or administrator, he must do it by a proper plea, which it seems may be either in abatement or in bar.^ If a mortgage is made or assigned to a trustee, the action to foreclose must be brought by him, or his assignee ; and cannot be maintained by cestui que trust.^ Sect. XXVI. The action by a mortgagee to recover possession, for the purpose of foreclosing the mortgage, is founded upon statutory pro- visions ; and is not in all respects conformable to the general principles, applicable to real actions. The title to the freehold is not determined in such an action. It is not necessary, therefore, that it should be brought against him who is tenant of the freehold. Any person in possession of the 1 See App. No. 35, 36. * 11 Mass. R. 313, Langdon vs. Potter. ^ 16 Mass. R. 356, Somes vs. Skinner. Ante, p. 37. > SEC. XXVI.] WRITS OF ENTRY. 261 mortgaged premises, who does not claim by title paramount to that of the mortgagor^ is liable to the action of the mortgagee.^ If the mortgagor assign the right of equity to redeem, to several persons as tenants in common, and they resist the entry of the mortgagee, or compel him to resort to an action to foreclose, each assignee may be considered as a deforciant of the whole. For in a writ of Entry to foreclose a mortgage, when brought against the assignee of the mortgagor^ the demandant counts against the assignee as the immediate lorongdoer, that is in the QuiBus ; and not in the per, as coming in by the mortgagor. Because the assignee of the mortgagor must hold subject to the mortgage, since he has only a right to redeem ; and his title, (though lawful against every one else,) is entirely subordinate to that of the mortgagee and his assigns. But if two distinct closes are included in the same mortgage, and the mortgagor conveys each of the closes in fee to a different person, by whom they are held in severalty, the mortgagee, in order to foreclose, must have a writ of Entry against each. Because in such a case, each grantee of the mortgagor would hold his part in severalty, and therefore each would be a several deforciant.^ 1 11 Mass. R. 216, Keith vs. Sin-an. 2 7 Mass. R. 357, 358, Taijlor vs. Porter. 262 REAL ACTIONS. [cil. IT. A second or third mortgage in fee of the same lands is good, as between the parties, al- though nothing passes by it, but the equitij of redemption. And where there are several mort- gages of the same land, a subsequent mortgagee is entitled to have the possession, and to take the profits, as against the mortgagor, subject only to the rights of prior mortgagees. In these cases, if the mortgagor refuses to redeem, a subsequent mortgagee may redeem from the prior mortga- gees. It is a good defence to a writ of Entry to fore- close, that the mortgage was given to secure an usurious contract. And this defence may be made by a plea, to be verified by the oath of the party, or proved by other evidence.^ But if this defence is set up by a mortgagor, to a writ of Entry brought by the mortgagee in order to foreclose, and the mortgagor failing to make out his defence, has judgment against him, and then grants and releases all his interest in the mortgaged premises to a third person ; if the latter brings his writ of Entry to recover the premises against the mortgagee, the former judgment will be an estoppel, which will preclude the demand- ant from giving evidence of the usury. And the 1 3 Mass. R. 138, A'cxi-all vs. Wright. 2 See 17 Ma*5, R. 365. Mams vs. Barnes. SEC. XXVI.] WRITS OF ENTRY. 263 tenant may avail himself of the estoppel witliout pleading it.^ It is proper to observe here, that amort- gage, made upon an usurious consideration, is void only against the mortgagor, and those who lawfully hold the estate under him. And a purchaser of the equity of redemption cannot avoid the mortga'^e, upon the plea or proof of usury. As his purchase is only of a right to redeem ; if he does not incline to avail himself of that right, which is the only basis of his title, he cannot have the land,^ So payment of the mortgage debt, or tender of the money, and a refusal by the mortgagee, is a good plea to this action ; for it discharges the land, which was pledged by the mortgage, though the debt remains.^ If the mortgagee has given up the original security, and take another, even of a higher grade, it will be no defence to an action to foreclose the mortgage. For the mortgage and the personal security are distinct. And by the terms of the contract, nothing but payment, or te9ider and refu- sal of the debt, will discharg;e the mort^a^e.^ ^ See 17 Mass. R. 365, Adams vs. Barnes. 2 13 Mass. R. 519, Green vs. Kemp. » Co. Litt. 209; Powell on Mort. 7, 8 ; 14 Mass. R. 104, Darling vs. Chapman ; App. No. 39. 4 9 Mass. R. 247, Davis vs. Maynard ; 7 Mass. R. 63, Carey vs. Prentiss. 264 KEAL ACTIONS. [CH. IV. And if the mortgagee, or assignee of the mort- gage has deceased, the tender should be made to the executor or administrator, and not to the heirs.* It has been already mentioned, that after mak- ing the mortgage, the mortgagee, if there is no proviso to the contrary, may immediately enter, or commence his writ of Entry, without waiting until there is a breach of the condition.^ This improv- ident practice of putting the mortgagor entirely at the mercy of the mortgagee, (if from motives of oppression or caprice he is inclined to turn him out of possession,) is very common in our country, and in some parts of it almost universal. It seems to be the uniform practice in England, to provide by ^n express covenant, that the mortgagee shall not enter, or disturb the mortgagor, until a breach of the condition is incurred. This is a very proper precaution on the part of the mortgagor ; since if the deed contains no such stipulation, the mortgagor is without redress ; because parol evidence, that it was agreed, at the time of executing the mort- gage, that he should continue in possession until there was a breach of the condition, is not admis- sible.^ Sect. XXVII. It will not be necessary to remark upon the judgment ybr the tenant, in writs 1 13 Mass. R. 31 1, Scott vs. McFarland. 2 Ante, p. 35, 37. ^16 Mass. R. 89, Colman vs. Packard. SEC. XXVII.] WRITS OF ExNTRY. 265 of Entry brought upon a mortgage. It follows of course, where the demandant is nonsuited, or has a verdict against him, in the same manner as in other writs of Entry. But when judgment is to be entered for the demandant, the statute^ interpos- es, wherever it appears, either from the demand- ant's writ, or the plea of the tenant, that the title of the former is only to hold as mortgagee, or assignee of a mortgage, and not as absolute owner of the fee. The statute, (which extends to all contracts with ?i penalty,) provides that " when the forfeiture, breach, or non-performance, shall be found by the jury, by the default, or confession of the defendant, or upon demurrer, the court before which the action is, shall make up judgment therein for the plaintiff, to recover so much as is due in equi- ty and good conscience. But the judgment shall be conditional, that if the mortgagor or vender, his heirs, executors, or administrators, shall pay unto the mortgagee or vendee, his executors or administrators, such sum as the court shall adjudge due, within iioo months from the time of entering up judgment, with interest, then the same mort- gage or deed of bargain and sale shall be void and discharged \ otherwise the plaintiff shall have his writ of possession." ' Stat. 1785, ck 22, § 1. 34 266 REAL ACTIONS. [CH, IV, Un^er this statute, whenever the mortgagee is entitled to judgment, the court will liquidate the sum due upon the mortgage, and enter the condi- tional JUDGMENT, that he have seisin, unless the mortgagor pay that sum with interest, and the costs of suit, within two months. And if the mortgage was given as collateral security for the payment of a bond, the conditional judgment will be for the amount of principal and interest due, although the sum may exceed the penalty of the bond.^ • Nothing but payment of the debt, secured by the mortgage, will prevent the mortgagees having judgment for seisin of the mortgaged premises. Therefore, it was held to be no defence to such an action, that the mortgagor had been charged as trustee of the mortgagee, in a process of For- eign attachment, on account of the same debt, for the security of which the mortgage was given ; that in consequence of that judgment, an execution had issued against him, upon which he had been imprisoned, and afterwards discharged upon taking the poor dehtorh oath : and furthermore, that since his discharge the judgment creditor had releas- ed to him the judgment.^ 1 2 Mass. R. 118, Pitts vs. Tilden. ~ 7 Mass. R. 63, Carty vs. Prentiss ; aad see 9 Mass. R 242, Dcrvis vs. Mayard. SEC. XXVII.] WRITS OF ENTRY. 267 But where the mortgage is given to secure the payment of several sums of money at different times, or the performance of several future acts ; if^ breach of the condition is confessed or found by the jury, the court will ascertain the arrears, or liquidate the damages already incurred, and at the prayer of the mortgagor, the conditional judg- ment may be entered for that sum, and the mort- gage will still remain a security against future breaches.* It has been already ob>erved,^ that if two distinct closes are included in the same mortgage, and the mortgagor conveys the closes to different persons, by whom they are held in severalty, the mortgagee, in order to foreclose, must have a writ of Entry against each. But it should be here remarked, that the mortgagee in such a case shall have judg- ment on each writ, unless the whole mortgage debt is paid. For each close is liable for the whole amount due on the mortgage. If the grantee of either close should pay the money, such payment would be a discharge of the other. And in all cases where there are two or more grantees under the same mortgagor, (whether in severalty, or as tenants in common,) if one should pay off the whole, or more than his proportion of the mort- * 15 Mass. R. 262, Wilder vs. Whiitemore. * Ante, p. 26.1. 260 REAL ACTIONS. [cH. IVw gage, there seems to be no doubt that the others would be held to a reasonable contribution.* When the tenant in a writ of Entry upon a mortgage suffers judgment to be rendered upon default, if the condition is for the payment of money only, and the amount due can be ascer- tained by a computation of interest, the clerk will enter the conditional judgment of course, without any particular direction from the court. But if the condition is for the performance of some specific act, or to indemnify the mortgagee, and the like, unless the amount is agreed by the parties, it must be liquidated by the court, or ascertained by a jury, or by an auditor or assessor under its direc- tion. Upon default it will not be necessary to file the original deed ; the clerk having authority in such a case, to enter the conditional judgment upon filing a copy of the mortgage.^ It only remains to add, that the tenant in a writ of Entry upon a mortgage, will not be entitled to have the conditional judgment entered in every case. When the action is brought, not to fore- close, but for the purpose of obtaining possession of the mortgaged premises, the demandant, as was before intimated, may count upon his own seisin generally, as in a writ of Entry in the QiiibiLS. 1 7 Mags. R. 355, Taylor vs. Porter. 2 M :Mass. R. 362. Union Bonk vs. Thayer. SEC. XXVII.] WRITS OF ENTRY. 269 In such a case he will be entitled to an absolute judgment against every person but the mortgagor or his assignee, having a right to redeem. And even against them he will be entitled to the same judgment, unless by a proper plea they set forth their interest, with a prayer that the conditional judgment may be entered. In that case, if it appear that the mortgage has been forfeited by a breach of the condition, the court will render a conditional judgment. For after forfeiture, the mortgagor, or party entitled to redeem, has a right to consider the entry of the mortgagee to be for condition broken, (although he makes no declara- tion to that effect,) and consequently to bring their Bill in equity to redeem.^ The court therefore, with a view to save the expense of a suit in equity, will allow the party entitled to redeem, to avail himself of that right, in the action brought by the mortgagee to recover possession.^ But where the demandant counts upon his own seisin generally, even after condition broken, and the tenant pleads the getieral issue, or any other plea which does not admit the demandant's title to hold the estate as mortgagee ; if the latter obtains a verdict, he will be entitled to a general judgment that he recover his seisin. It seems 1 12 Mass. R. 514, Pomeroy vs. Winship. ^15 Mass. R. 4G7, Partrui^e vs. Gordon. 270 REAL ACTIONS. [CH. IV. indeed that it is only by admitting in his plea the title of the demandant, alleging a breach of the condition of the mortgage, and averring his own right to redeem, that the tenant can restrict the demandant to a conditional judgment.^ It is said, however, in one case, that the tenant might read in evidence a defeasance, to shew that the demand- ant in a writ of Entry was entitled only to a con- ditional judgment, as upon a suit to foreclose a mortgage. The ground of this opinion seems to have been, that in Chancery, whenever it appears from written evidence, that the land was conveyed as a pledge for the payment of money, the con- veyance will be treated as a mortgage. It is not expressly said, whether a defeasance may be thus given in evidence under the general issue, or a special plea. If it is only intended to assert, that such evidence is admissible under a special plea, " that the demandant held as mortgagee, and that the condition of the mortgage was broken," it is unquestionably correct. But if it is meant that such evidence should be received under the general issue, (which was the only plea in the case in question,) it is not easy to perceive upon what grounds the opinion can be supported. It ought however to be observed, that it is to be regarded rather as an obiter dictum, than the judgment of the ^13 Mass. R. 520. Green vs, Kemp. SEC. XXVIII.] WRITS OP ENTRY. 271 court : because it forms no part of the grounds upon which the cause was decided.^ Sect. XXVI II. There is also another case in which an Executor or administrator may, in our practice, mairitain a writ of Entry. It is where, upon the recovery of a judgment by them, execu- tion is levied upon the land of the judgment debtor. In this case, after the sheriff has completed the levy, and delivered seisin to the executor or administra- tor, if the judgment debtor refuses to give up the possession ; or if a stranger enters and disseises them, they may maintain their writ of Entry. This remedy, though not expressly given, is coht- sidered as implicitly authorized by the third sec- tion of the statute before referred to.^ It provides " that whenever any executor or administrator shall recover judgment for any sum of money, whereon execution shall issue, and lands, tene- ments, or hereditaments, shall be set off to said executor or administrator, in discharge of the said execution, the said executor or administrator shall be seised and possessed of the whole estate in the lands, tenements, or hereditaments so set off, to the sole use and behoof of the widow and heirs of the deceased intestate, or of the residuary legatee or legatees of the testator, as the case may be." 1 4 Mass. R. 444, Kelleran vs. Bro7i;n. » Stat. 1788, ch. 51, § 3. 272 REAL ACTIONS. [CH. IV. In construing this statute, it has been contend- ed that the word use must have its technical sense ; it being a general rule, that words used in former statutes, which have acquired an established mean- ing, should, in a subsequent statute, be understood in the same sense. ^ It has accordingly been argued, that when an executor or administrator levied an execution upon real property, and receiv- ed seisin from the sheriff, he became seised of such an use, as was executed by the statute of uses.^ But the court, taking into consideration the other provisions, and the general object of the statute, considered the intention of the legislature to be manifest, that the executor or administrator ,«hould take the estate, not as an use which the statute of uses would execute, but in trust, for the benefit of the widow and heirs, until it should be distributed by the court of probate, or at least, until it should be ascertained whether the land levied upon would be wanted to discharge debts and legacies, or defray the expenses of the admin- istration. This construction, it was observed, seems to to be necessary, in order to make the several pro- visions of the statute consistent with each other. For the fourth section provides, that if the debtor^ his heirs, executors, or administrators shall redeem 1 See 4 Mass. R. 605. 2 07, H. VIII. ch. 10. SEC. XXVIII.] AVRITS OF ENTRY. 273 the estate which has been levied upon, the executor or administrator of the creditor shall receive the money, and discharge the land by release, or other legal conveyance. But if the estate levied upon was an use, which would be immediately executed by the statute of uses, so as to vest the legal estate in the heirs, it would be absurd to direct the executor or administrator, (in whom no estate would be left,) to execute the discharge.^ In this action the executor or administrator should count upon his own seisin, in the capacity in which he obtained the judgment. In other respects it seems the form of the writ should be the same as in other writs of Entry. ^ And not only the pleas on the part of the tenant, but the evidence, verdict, and judgment also, will be the the same, as if the demandant had recovered the judgment, levied the execution, and brought his writ of Entry in his oivn right. No further remarks, therefore, seem necessary in relation to this action. ^ 4 Mass. R. 598, Boylston vs. Carver. 2 5 Mass. R. 241, Willard vs. JVason ; App. No. 40. 35 274 REAL ACTIONS. [cH. V. CHAPTER V. IVrits of Dower and the Proceedings therein. Dower is the provision made by the law, upon the death of the husband, for the support of the wife out of his estate, during her life. It is an institution which probably had its origin among the ancient Germans ; and was brought by them into the southern parts of Europe. For as early as the time of Tacitus, it was an established custom among the German nations, that the wife should bring no portion to the husband ; but that the husband should allot a part of his property for her maintenance, if she should survive him. " Dotem non uxor marito, sed uxori maritus offert:'' It has been supposed that among the Saxons, the only provision made for the support of the wife, after the death of the husband, was out of his per- sonal estate. And Sir Martin Wright has remark- ed, that " we find no footsteps of dower in lands, until the time of the Normans. But on the con- trary, provision is made by one of the laws of the Saxon king Edmund, for the support of the wife 1 Tacitus de Mor. Ger. 18. SEC. I.] WRITS OF DOWER. 275 surviving the husband, out of his goods onhj.''''^ This seems however to be a mistake ; for there is an ancient Saxon charter in the appendix to the Treatise on Gavelkind by Mr. Sormier, with the title of " Chirographum pervetustum de nuptiis contraliendis, et dote constituenda,'''' in which particular lands, together with a certain number of oxen, cows, horses, and bond-men, are appro- priated for the dower of the wife. By the ancient customs of Normandy, the wife was entitled for her dower to one third part of the fief of which the husband was seised at the time of the marriage. The husband could not endow his wife of more than a third part of his lands, though he might of less.^ And this seems, according to Glanville, to have been the law of England, at the time he wrote in the reign of Henry II. But there were two methods of mak- ing the endowment ; either by naming the partic- ular lands, at the time of the marriage, of which the wife was endowed, or by endowing her gen- erally of all his lands. And to this the husband was bound, by the ecclesiastical as well as the sec- ular law.* 1 Tenures. 193. 2 Grand. Coust. ch. 101. *Dos duobus modis dicitur: dos enim dicitur vulgariter id, quod aliquis liber homo dat sponsae suae, ad ostium ecclesiae, tempore desponsationis suae ; tenetur autem unusquisque. tarn 276 REAL ACTIONS. [CH. V. At first, it seems that dower was forfeited, not only by iiicontinency, but by a second marriage. But in the time of Henry I, this condition was restricted to cases where there was issue of the husband.* Though the general law of dower was thus early established, there Avere also local customs in particular districts by which the wife was entitled to a different portion of the husband's property. By the custom of Gavclkihd the wife was endow- ed of a moiety of all the lands the husband held by that tenure, subject however to the forfeiture before referred to, in case of incontinency, or a second marriage.'^ And by the custom of Bur- rough English the wife was entitled to hold the ivhole of her husband's lands in dower.^ These usages clearly indicate a different origin from the jure ecclesiastico, quam jure scculari, sponsam suam dotare tempore desponsationis. Cum quis autem sponsam suam dotat, aut nominat dotem, aut non. Si non nominat, tertia pars totius tencmenti liberi sui, intelligitur dos ejus, et appellatur ralion- abiiis dos cujuslibet mulieris tertia pars liberi tenement! viri, quod habuit tempore desponsationis, ita quod fuerit inde seisitus in dominico. Si vero dotem nominat, et plus tertia parte, dos ipsa in tauta quantitate stare non poterit: amensurabitur enim, usque ad tertiam partem, quia minus tertia parte scilicet ten- ementi sui potest quis dare in dotem, plus autem non. Glanv. lib. VI. c. 1. 1 Black. Tracts, 286. 2 Rob. Gav. 159. 3 Lrtt. § 37, 16f!. SEC. I.] WRITS OF DOWER. 277 customary law of Normandy^ though that was generally established. The necessity of this provision for the wife will appear very manifest, when the principles of the ancient law are considered. Before the introduction of trusts, the husband could give nothing to his wife in his lifetime ; and until the reign of Henry VIII. he could not devise his lands to her. He might, it is true, make a testamentary disposition of his personal property in her favour. But in the early times of the common law, the personal property, even of the most opulent, was comparatively trifling. Without this general pro- vision therefore, she would have been left destitute, unless she had been specially endowed in some of the ancient modes, at her marriage. The right of dower ought to be regarded not only as a civil, but emphatically a moral right. This view of it has been clearly stated and pow- erfully enforced by Sir Joseph Jeckyl, in the case af Banks vs. Sutton.^ " The relation of husband -and wife," he observes, "as it is the nearest, so it is the earliest, and therefore the wife is the- proper object of the care and kindness of the hus- band. The husband is bound by the law of God and man, to provide for her during his life : and after his death, the inoral obligation is not at an 1 2 P. W. 702. 278 KEAL ACTIONS. [CH. V. end, but liu ou^^lit to take care of her provision dur- ing her own lite. This is the more reasonable, as during the coverture, the wife can acquire no property of her own. If before her marriage she had a real estate, this by the coverture ceases to be hers, and the right thereto, whilst she is married, vests in the husband ; her personal estate becomes his absolutely, or at least is subject to his control. vSo that unless she has a real estate of her own, (which is the case but of few,) she may, by his death, be destitute of the necessaries of life, unless provided for out of his estate, either by a jointure or dower. As to the husband's personal estate, un- less restrained by special custom, (which very rarely takes place,) he may give it all away from her ; so that his real estate (if he had any,) is the only pla7ik she can lay hold of, to prevent her sinking under her distress. Thus is the wife said to have a moral right to dower." Of the several species of dower mentioned by Littleton,^ only oi^t' has been adopted here, which is usually denominated Dower at the common laiv^ though v\ ith us it has been established, and the proceedings in relation to it are in a great measure regulated by statute. In a considerable jjortion of our country the principles of the common law upon this subject have been very little departed 1 § 48, 49. SEC. II.] WRITS OF DOWER. 279 from, either as to the extent of the right, the rem- edy by which, in ordinary cases, it is enforced, or the conditions and restrictions to which the right is subjected. But in some of the states, important innovations have been made. These alterations the limits prescribed to this summctry do not allow us to notice particularly. We shall therefore only observe, that the greatest departure from the rules of the common law, upon the subject of dower, will perhaps be found in the statutory provisions of Vermont and Georgia ; in both of which states, the widow, whose husband has died without issue, may elect, instead of her doner at the common law, to receive a moiety of the residue of the husband's real and personal estate, after his debts are discharged, to her own use Jorever, Sect. II. What estate in the husband shall be necessary to entitle the wife to dower, iu Massachusetts, is not determined by statute. By the revised statute of descents,^ there is an express saving to the widow of " her dower at the common- law, unless she be lawfully barred of the same.'' And the general rule of the common law is, that where the husband is seised of lands or tenements ^n FEE SIMPLE, FEE TAIL GENERAL, Or AS HEIR L\ SPECIAL TAIL, during the marriage, the wife, at his decease, is entitled to dower. ^ 1 Stat. 1805, clj. 90, § 1, and see stat. 1783, ch. 36, § 4. 2 Litt. § 36. 280 REAL ACTIONS. [CH. V. But if the seisin of the husband is only for an instant^ of such a seisin the wife shall not be en- dowed.^ Therefore, where one conveys lands to the husband in fee, who at the same time, by a deed of the same date, mortgages the land to his grantor, the wife of the grantee cannot have dow- er ; for this is all one transaction. The seisin is but for an instant ; since by the same act, or at least the same transaction, by which the husband acquired the seisin, he parted with it again.^ And where the husband received a conveyance in fee, and at the same time mortgaged the estate in fee to a third person for the purchase money, and the right of redemption was afterwards foreclosed, it was held that the wife was not entitled to dower, because the seisin of the husband was but for an instant.^ So if tenant for life makes a feoffment in fee, his wife shall not be endowed : for although by making the feoffment he gained a tortious fee, it was but for an instant, and it passed the same moment to the feoffee.^ In like manner, if a joint- tenant make a feoffment in fee, his wife shall not have dower ; because he was seised of an estate in severalty but for a moment, since he passed it ^ Cro. Jac. 615, Amcotts vs. Catherich. 2 4 Mass. R. 568, Holbrook vs. Finney. 3 14 Mass. R. 3513 Clark vs. Mvnroe. * d-o. Jac. 615- SEC. II.] WRITS OF ENTRY. 281 to the feoffee, by the same act by which ho acquir- ed it.^ And it is upon the same principle that the wife of a feoffee to uses is not entitled to dower ; nor the wife of the conusee of a fine, when by the same fine the estate is rendered back again to the conusor.^ The reason that the wife of a joint-tenant in fee or in tail cannot be endowed out of the joint estate is, because by the death of one joint-tenant, the estate goes to the survivor, vfho is in hy the first donor, and therefore by title paramount to that of the wife of the deceased joint-tenant, who is in by the husband.^ But since our statute of 1785, ch. 61, which provides that all estates con- veyed to two or more persons, shall be deemed estates in common, unless it be manifestly the in- tention of the alienor, that they should be held as joint estates, very few cases occur, which call for the application of this principle. And when an estate is mortgaged to the husband in fee, the wife will not be ePxtitled to dower, until the mortgage is foreclosed. Neither can she have her dower of a trust estate.'^ By the law of England, where lands are mort- gaged in fee, the wife cannot have her dower, though the husband is entitled to his curtesy, in 1 Cro. Jac. 615. 2 o Co_ 77^ a lor^j CromweWs case. » Go. Litt. 37, b. 4 Cruise, Tit. 6, ch. 3, § 32. 36 282 REAL ACTIONS. [CH. V. the equity of redemption. But if the mortgage is only for a term of years, the wife shall be en- dowed.* The same doctrine was formerly recog- nized in Massachusetts.^ But the case of Snow vs. Stevens,^ has shaken, if not overturned the former decisions : and there is great reason to believe, that whenever the question shall come directly before the court, it will be determined that the wife is doivable of an equity of redemption, as w^ell where the mortgage is in fee, as when it is only for a term of years. This doctrine has been established in Connecticut, upon great considera- tion.^ And several decisions in New York, seem strongly to favour, if they do not indeed fully sanc- tion it.^ Sect. III. At the common laiv, there were three indispensible requisites to entitle the wife to dower ; namely, marriage, seisin, and death of the husband.^ 1. There must be a marriage actually solem- nized in the manner required by law, between persons capable of contracting, it being an an- cient maxim of the common law, '* ubi nul- lum matrimonium, ibi nulla dos.^^ But it seems 1 Cruise, Tit. 6, ch. 3, § 11. 2 10 Mass. R 366, Bird vs. Gardner. ^ ^5 jjagg^ j^^ 978. 4 1 Conn. R. 559, Fish vs. Fish. ^ 6 Johns. R. 290, Bitchcock vs. Harrington ; 7 Ibid. 277, Collins vs. Torrey. ^ Co. Litt. 31, a. SEC. III.] WRITS OF DOWER. 283 that although the marriage may be voidable, if it has not actually been avoided in the lifetime of the husband, the wife shall have her dower.* According to lord Coke, it is no objection to the wife's claim to dower, that the marriage took place before the parties were of sufficient age to consent. For if the wife was more than nine years old, at the time of the husbands death, she shall be endowed, whatever may be the age of the husband.^ 2. By the common law, a distinction exists between curtesy and doiver, with regard to the kind of SEISIN necessary to their consummation. If the wife had only a seisin in law, the husband could not be tenant by the curtesy, because it was his own fault that he had not made an entry upon the lands descended to her. But there was no neces- sity for a seisin in fact, to entitle the wife to dower ; because if that were necessary, (as the wife could not enter, and thus acquire a seisin in fact for him without his consent,) the husband might purposely omit to enter, that he might thereby defeat her claim. ^ Therefore if the ancestor die seised, and then his heir also dies, without having entered upon the lands descended from the ancestor, still the wife of 1 Co. Litt. 32, a ; Perk. § 304, 305, 306. 2 Co. Litt. 32, a. ^ Co. Litt. si, a. 284 REAL ACTIONS. [CH. V. the lieir shall have her dower. For her husband acquired a seisin in law, by the death of his ances- tor, without his making an entry, which would have been necessary to give him a seisin in fact. And though a stranger might have entered, after the death of the ancestor, the wife would still be entitled to dower ; for the heir had acquired a seisin in law, at the moment of his ancestors de- cease, and before the ahatement of the stranger. But where the stranger abated before the marriage of the heir, who afterwards died without making any entry upon the lands descended, the wife of the heir could not have dower. For the seisin in law, acquired by the death of the ancestor, was divested by the abatement, before the marriage. Consequently there was no seisin, in fact, or in law, during the coverture.^ This distinction as to the kind of seisin nec- essary to a tenanc}^ by the curtesy and in dower, is adopted in our practice, and generally recog- nized in this country. But it has been decided in Connecticut, that the husband might be tenant by the curtesy of lands, of which the wife was disseised during the whole period of the coverture.^ It should be remembered, however, that though an actual seisin by the husband is not required, to 1 Litt. § 448 ; Perk. § 367. 2 4 Day's R. 294, Bush vs. Bradley. vSEC. III.] WRITS OF DOWER. 285 entitle the wife to dower ; yet he must have a present right to be seised., or she cannot be endow- ed. Therefore if he has only a vested re^naiiider, after an estate for life, his wife cannot have dower, at the death of the tenant for life, who had sur- vived her husband. For in this case the husband had no right to the seisin during the coverture.^ 3. The last requisite to the consummation of dower, by the principles of the common laiv, is the DEATH OF THE HUSBAND. And this according to Coke must be a natural death ; since what is denominated the civil death of the husband, (as becoming a monk,) will not give the wife a right to be endowed.^ But others have contended that if the husband was banished by act of parliament, or by abjuration, (which is a civil death,) the wife should be entitled to dower.^ By the law of Massachusetts, the wife's right to be endowed, (not only of the lands of which the husband is seised, but of those which he has aliened also,) may become absolute, even in the lifetime of the husband.* But this is by force of a statute,^ which provides that when there shall be a divorce for the cause of adultery, committed by the husband, the wife shall have dower in his 1 7 Mass. R. 233, Eldredge vs. Forrestal. 2 Co. Litt. 33, b. 3 See Jenk. Cent. 1, case 1. 4 14 Mass. R. 219, Davol vs. Holland. 5 Stat. 1786, ch. 69, § 3. 286 REAL ACTIONS. [CH. V. lands, in the same manner as if the husband were dead. It may be here mentioned, that notwithstand- ing the general rule of the common law, that the widow is dowable of all the real estate of which the husband was seised during the coverture ; it has been held by our court, that she cannot be endowed of lands in a loild and utterly unproduc- tive state. For it would be no advantage to l>er, since she could make no profit of them, without subjecting herself to an action of waste ; and it might l)e very injurious to the heir or alienee.^ Sect. IV. Aliens, by the common law, can- not hold lands in England ; and are consequently excluded from the privileges of curtesy and dower.^ And this ancient principle of the law has been generally, perhaps universally adopted in this coun- try. In Massachusetts, however, this legal inca- pacity of the ivife, (who was an alien at the time of her marriage,) to recover her dower, has been removed by a late statute f but no alteration of the common law has yet been made, in relation to tenants by the curtesy. The rigour of the 3.nc\enl feudal laiv deprived the wife of an attainted traitor or felon of her dower. Bat this barbarous policy of ancient times, ^15 Mass. R. 164, Conner vs. Shepherd. 2 7 C. 25, a. Calvin's case. ^ stat. 1812, ch. 94. SEC. iy«] WRITS OF DOWER. 287 which attempted to prevent political, or other offences, by involving the near connexions of the offender in the punishment of his crimes, it has been well observed, is abhorrent to the gen- ius AND CHARACTER OF OUR JUDICIAL INSTITU- TIONS. For the small number of felonies in our criminal code, specific punishments are provided by statute ; among which punishments are neither corruption of hlood, nor forfeiture of dower. The same character of mildness is a distinguishing- feature, not only in the laws of the nation, but in those of most of the individual states. And it cannot be improper to remark here, to the honour of the founders of our state sovereignty, that these humane principles have not been lost sight of in times of the greatest political excitement. For even the widows of those who were denounced by the legislature,* during the war of the revolution, as conspirators, and whose estates were declar- ed ybr/ez^eJ to the government, were not depriv- ed of dower.^ And the same principle has been recognized, under a similar law of some of the other states.^ If an alien is naturalized, the disqualification as to dower is thereby removed ; and it seems she 1 Act of April 30, 1779. 2 See 9 Mass. R. 363, Sewall vs. Lee. I 1 Johns. Cases, 27 ,• 2 Bay's R. 20, Wells vs.Martin. 288 REAL ACTIONS. [CH. V. will be entitled, not only to be endowed of the lands of which the husband was seised, after the naturalization, but of those also which he had aliened before. But where a woman is made a denizen, she can have dower, only out of those lands of which the husband was seised, at or after the time of her denizenation.* This distinction, however, is unimportant in this country, because our laws do not recognize that intermediate grade between an alien and a citizen, which is denomi- nated denizen by the law of England. Sect. V. By the law of Massachusetts, a wife may debar herself of dower in the lands of her husband, by joining with him in a conveyance. And the mode by which this is usually done, is by- introducing her in the close of the deed, as express- ly relinquishing all claim to dower in the lands conveyed, and by her executing the deed with her husband.^ It is not necessary by our law, that the wife should acknowledge the deed with the husband, in order to make it binding on her. For the principal object of the acknowledgment is to give evidence to the register of the genuineness of the deed, and that it is entitled to be recorded ; for which purpose the acknowledgement of the 1 13 Co. 23 ; Cruise, Tit. VI. ch. 2, § 31, 32. 2 7 Mass. R. 20, Fowler vs, Shearer ; 9 Toid. 172, Lithgow TS. CavcHdiik. SEC. v.] WRITS OF DOWER. 289 husband is sufficient, without that of the wife.'^ And the student will recollect, that in our practice the acknowledgment and recording of a deed does not dispense with the proof of the execution of it, upon the issue ofiion est factum.^ When the wife does not join with the husband in the original conveyance, she may debar herself of her dower, by executing a subsequent deed with him, in which the sale of the estate is recited as the consideration, upon which she consents to re- linquish her dower.^ But the wife will not be barred of dower, by merely putting her signature and seal to the instrument with her husband, if there are no words in it, expressing, or at least clearly implying an intention on her part, to relin- quish her claim to dower in the lands conveyed.^ Where the wife relinquishes her claim to dow- er, by joining her husband in a deed of conveyance, containing the usual covenants; and the grantee afterwards recovers judgment and satisfaction against the husband, for an alleged breach of his covenants, "that he was lawfully seised and had good right to convey ;" such deed cannot be made use of to bar the wife of her dower in the land. For 1 9 Mass. R. 220, Catliu vs. Ware ; 7 lb. 30, Marshall vs. Fisk. * 9 Mass. R. 220. 3 7 jyi^ss. R. 20, Forvler vs. Shearer. 4 9 Ma?s. R. 220, Cailin vs. Ware. 37 290 RiLXL ACTIOS. [CH. V. the wife is not to be deprived of dower, by joining her husband in a deed by which no estate passed from him.* But where the wife joined with her husband in a mortgage, and relinquished all her claim of dower, in the estate motgaged, which was afterwards redeemed by the purchaser of the equi- ty of redemption : it was decided that the wife could derive no benefit from the discharge of the mortgage. For since the purchaser of the equity of redemption had all the equitable interest in him- self, upon hb redeeming the mortgage, the legal estate followed the equitable interest, and he be- came seised of the whole fee simple, discharged of the wife's dower.^ On the other hand, where the wife joined with the husband in a mortgage, and after the death of the husband, his administra- tor redeemed, it was held that the wife's right of dower was restored.' In another case the wife of the mortjjagor joined with her husband, and relinquished her right of dower, after which the husband's equity of redemption was taken and sold on execution : but before the purchaser of the equity entered, a person, who had been tenant under the mortgagor, paid the debt to the assignee of the mortgage, who * 9 Mass. R- 143. Stimon v*. Sumner. 2 8 Ma^,. R- 491, Popkin ts. Bumitead. » 13 3Ia.s. R- 525. Hildretk ts. Jt^e*. SEC. v.] WRITS OF DOWER. 291 executed a release to the mortgagor. The pur- chaser of the equity of redemption afterwards entered, and the mortgagor died. It was held thai the wife of the mortgagor was entitled to dower, against the assignee of the purchaser of the equity of redemption : because the latter could not set up against the wife the mortgage which she had executed, but a stranger, and not the purchaser of the equity, had discharged.* The wife ma}^ also debar herself of do^\ er, by accepting a jointure upon her marriage. But no jointure is a bar to dower, unless it be of a free- hold estate, for her life at least, in lands, tene- ments, or hereditaments, to take effect in possess- ion or profit, immediately upon the husband's death.* And if a widow be evicted of her jointure, which has been regularly settled upon her, she will be let in to claim her dower in the other lands of her husband ; because, by the eviction, the con- sideration upon which she was to have been bar- red of her dower, has wholh failed. Therefore when the ^^ it'o had covenanted with her husband before marriage, that in consideration of a provis- ion made for her by the husband, by an annuity to continue during her life, she would never demand dower in any lands of which he might die * 17 Mass. R. 564. Barker vs. Parker. - 7 Mass. R. 133. Hostinss vs. Dickinson. 292 REAL ACTIONS. [CH. V. seised and possessed, and the husband afterwards died insolvent, it was held, on two grounds, that the wife was not barred of her dower. First, Because the provision made by the husband for the wife was not a freehold estate in lands, and tlierefore not a legal jointure ; and Secondly, Because the consideration, upon which she had consented to relinquish her claim to dower, had wholly failed.^ If the wife accept the provision made for her by the husband's will, instead of dower, she may thereby debar herself from being endowed after- wards. But our statute has expressly declared, that the widow may in all cases waive the provis- ion made for her in the will of her deceased hus- band, and claim her dower, and have the same assigned to her, in the same manner as though her husband had died intestate ; in which case she shall receive no benefit from such provision, unless it plainly appears by the will, to be the testator's intention that it shall be in addition to her dower.^ It is said that even a divorce for adultery was not a bar to dower, by the ancient common law ; since such a divorce in England was not a dissolution of the marriage, as it is in Massachu- ^ 7 Mass. R. 153, Hastings vs. Dickenson ; see 15 Mass. R. 106, Gibson vs. Gibson. 2 Mass. Stat. 1783, cli. 24, § 8. SEC. VI.] WRITS OF DOWER. 293 setts. But by the statute of Westminster 2,^ it is declared, that if a wife willingly leave her hus- band, and continue with an adulterer, she shall be barred of her action to demand dower, if she he convicted thereupon ; except her husband ivilling- ly, and without coertion of the church, reconcile her, and suffer her to dwell with him, in which case she shall be restored to her action. According to lord Coke, though the wife be taken away against her will, she shall lose her dower, if she voluntarily remain with the adulte- rer, without being reconciled to her husband. And it will make no difference, though she went away with the consent of the husband.^ Sect. VI. It often happens that a person about to make a purchase of real property is desir- ous of taking the conveyance in such a form, as to prevent a right of dower in that property becoming vested in his wife. Sometimes, also, a person about to marry is desirous of placing his real property, or a part of it, in such a situation as not to be subject to the dower of the intended wife. It may be useful therefore to the student, to notice the subject in this place, though not strictly a part of the law of real actions. Of the several methods which have been been adopted or proposed, for the purpose of preventmg dower, only four will be mentioned. 1 13 Edw. I. ch. 34. ^ Co. 2 Inst. 435, 436. 294 REAL ACTIOJsS. [CH. V. 1. The purchaser, in some mstances, has ta- ken a convej'ance to himself and a trustee jointly, and to their heirs ; but as to the estate of the trustee and his heirs, in trust for the purchaser and his heirs. And this will effect the object of the purchaser, if the trustee should be the survivor ; because the wife cannot have dower, (as has been before remarked,)^ in lands of which the husband is seised jointly with another, who survives him. But if the trustee should happen to die first, the w^hole estate would thereby vest in the husband, as survivor, and consequently the right of dower would instantly attach upon the estate. 2. The estate is sometimes limited either to the purchaser, and a trustee, and the heirs of the trustee, but in trust for the purchaser : or the whole estate is limited immediately to the trustee and his heirs, in trust for the purchaser and his heirs. But both these modes are objectionable, on account of their keeping the legal fee out of the purchaser ; and in case of the trustee's death they expose the purchaser to peril, on the one hand or the other. For if the trustee should die without heirs, the estate would escheat ; and if he left heirs, they might be infants, or married ivomen, or persons residing at a distance, and perhaps un- willing to join in a conveyance. And these diffi- 1 .\ntej p. 281. SEC. VI.] WRITS OF DOWER. 295 culties, it may be remarked, are much more likely to happen here, than by the law of England^ be- cause the heirs, by our law of descents, are gener- ally much more numerous. These considerations are sufficient to satisfy any one, that it is unwise to suffer the legal fee to be outstanding in a trustee. 3. Another method is sometimes adopted, which was first proposed by Mr. Fearne. His plan was to have the lands limited in the fullest manner^ to such person or persons as the purchas- er should appoint, and in default of any such ap- pointment, to the use of the purchaser and his assigns during his life ; and from and after the determination of that estate, by any means what- ever, in his lifetime, to the use of so'me other person and his heirs, during the life of the pur- chaser, in trust for him and his assigns ; and from and after the determination of the estate so limited in use, to the said trustee and his heirs, to the use of the jmrchaser, his heirs and assigns forever. This method seems to be sufficiently guarded ; and it is not liable to the objection before suggest- ed, of the legal fee being placed beyond the con- trol of the purchaser. But the limitations are so involved in each other, as to be perhaps quite in- comprehensible to any person but a lawyer. 4. Mr. Butler has proposed to effect this ob- ject by a much more simple, and an equally safe 296 REAL ACTIONS. [CH. V. and effectual method. It is by first limiting the estates to such uses as the purchaser shall by deed or will appoint, and for want of appointment, to the use of a trustee, his heirs and assigns, during the life of the purchaser, in trust for him, and subject thereto, to the use of the purchaser, his heirs and assigns. This seems to be much preferable to either of the other modes ; since it is far more safe and effectual than the two first, and also more simple and obvious than the other. By adopting this method, the dower of the wife will unques- tionably be prevented ; the purchaser will always have complete commcmd of the legal fee, during his life ; and at his death, it will descend to his heirs.* Sect. VII. When the husband dies seised, the widow's dower may be, and usually is, assigned by commissioners a})pointed by the Probate court. But this was never a part of the jurisdiction of the ecclesiastical courts, as incident to the adminis- tration of the estates of deceased persons. Under the colonial government, the county courts were invested with the jurisdiction exercised by both the temporal and spiritual courts in the parent country. As courts of law, they had ju- risdiction in cases of dower, according to the prin- ciples of the common law ; and as our ancestors ? See Co. Litt. 379, b, n. 1 ; lb. 216, a, n. 1. SEC. Vll.] WRITS OF DOWER. 297 would on no account tolerate a tribunal, which resembled the ecclesiastical courts in England, they were obliged to commit to the county courts, the jurisdiction of testamentary causes. And when courts of probate were established, the business of assigning dower seems, (without any explicit legislative authority,) to have been assumed by them, as an appendage of their general powers, in relation to the settlement of estates.* The proceedings in the probate court are insti- tuted by a petition, presented by the widow, her attorney or agent, setting forth concisely the facts upon which her claim is founded, so as to show that her case is within the jurisdiction of the court. These proceedings, however, are generally amica- ble, and the commissioners are often named by consent of the widow and heirs. But when that is not the case, notice to the heirs should precede the appointment of the commissioners. The warrant to the commissioners directs them to give notice to all persons interested, of the time of setting off the dower. They should also liave notice of the time when the proceedings of the commissioners are returned to the court. Generally the assent of the ividow and the heirs, to the acceptance of the report or return, is ex- pressed in writing. When they do not consent, 1 9 Mass. R. 12, Sheaf e vs. O'Neal .38 298 REAL ACTIONS. [CH. V. an opportunity must be given them, to make their objections. Where the estate in ^\ hich dower is claimed is under mortgage, this court cannot proceed to the assignment of dower, without the assent of the mortgagee or assignee of the mortgage.* The jurisdiction of the probate court is not limited to lands in the same county ; neither is it required that the commissioners should all be either yVee- holders or inhabitants of the county where the deceased husband dwelt. ^ The commissioners, in assigning dower, are to have regard to the rents and profits or annual income of the estate, and not to the absolute value of the inheritance.^ When the land in which dower is claimed is held m common, the Probate court may direct the commissioners^rs^ to sever the tenancy in common, and then proceed to assign the dower : or if the nature of the case permit, and the parties request it, dower may be assigned, without first severing the tenancy in common.^ The authority of the Probate court to assign dower does not exclude the jurisdiction of the courts of common law ; but is only concurrent 1 9 Mass. R. 13, Sheaf e vs. O'Neal. 2 12 Mass. R. 454, Miller vs. Miller. ^ 4 Mass. R. 533, Leonard vs. Leonard. ''Mass. Stat. 1820, ch. 54, § L SEC. VIII.] WRITS OF DOWER. 299 with it. And it is a general rule of law, that where different courts have concurrent jurisdiction, the court in which proceedings, are first instituted, and whose jurisdiction consequently first attaches, must necessarily have authority paramount to the other, in relation to the subject matter of that suit.^ In all cases, where a claim of dower is made upon hinds which were aliened by the husband, or taken in execution for his debts, the claim can be enforced in Massachusetts, only by a writ of Dower in the courts of law.^ And if the husband has aliened distinct parcels to different persons in severalty, there must of course be several actions, and dower must be assigned out of each.^ In England, and also in several of the states, where courts of equity with general chancery powers are established, those courts and the courts of law have concurrent jurisdiction in relation to the assignment of dower. But the Equity juris- diction of our courts is very limited, and does not extend to this subject. Sect. VIII. It has been already remarked, that the proceedings in writs of Dower in our courts are in a great measure regulated by statute. 1 16 Mass. R. 171, Stearns vs. Stearns. 2 9 Mass. R. 9, Sheafe vs. O'Neil 3 1 Greenl. R. 30, Fosdick vs. Goodincr. 300 REAL ACTIONS. [CH. V. And these statutory provisions, aided by the judi- cial decisions which they have called forth, have established a course of practice in this action, somewhat different, though nearly resembling the practice of the English courts, in the writ of Doiv- er unde nihil habet. This ancient writ, of which it seems proper to take some notice in this place, is said to be a lorit of Right in its nature. It was the proper remedy for the widow, where she had received no part of her dower from the tenant against whom the action was brought ; though she might have had some part of it, assigned to her by another person. But if she had accepted a part of her dower, of the same tenant, and in the same town, the allegation of unde nihil habet in the writ would be untrue ; and her only remedy was by a tvrit of right of Dower.^ A writ of Dower was to be brought against the tenant of the freehold ; or where there was a guardian in chivalry it might be sued against him, though he was not tenant of the free- hold. But it could not be maintained against a guardian in socage.^ By the ancient law, voucher and the common es- soin lies in this action ; but there could be only one essoin after issue joined. View might be demand- 1 F. N. B. 147 ; Booth, 166 ; Finch, 89, b. 2 Finch, 90. a. SEC. VIII.] WRITS OF DOWER. 301 ed by a stranger. But if the action was against the heir, whose ancestor had died seised, he was not entitled to a view.^ And by the statute of Westminster 2,^ even the alienee of the husband is not allowed a view.^ In favour of the claim of dower also, it was early determined that the parol should not demur for the nonage of the tenant.^ By our statute of 1783, ch. 40, ^ 1, it is pro- vided " that if the heir, or other person having the next immediate estate of freehold or inheritance, shall not within one month next after demand made, assign to the widow her dower, whereof she may be dowable, she may recover the same by icrit of Dower, to be brought against the ten- ant in possession, or the persons who claim right or inheritance in the same estate." It is neces- essary, therefore, that the demand should be made of the person who took the next immediate estate of freehold, whether as heir, grantee, abator, or disseisor of the husband : though he may be a different person from the tenant of the freehold, against whom the action must be brought.^ And the action cannot be maintained, unless a demand has been made one month before it was commenc- ed. But it seems that both of these exceptions, 1 Booth, 167. 2 23 Edw. I. ch. 48. 3 Co. 2 Inst. 481. 4 jq Edw. 4, 12. 5 12 Mass. R. 485, Parker vs. Murphy, 302 REAL ACTIONS. [CH. V. viz. that the demand was not made upon the heir or other person., having the next immediate estate of freehold or inheritance ; and that the action was commenced within less than a month after the demand, must be made by a plea in abatement. For if the tenant plead ne ungues accouple in loyal matrimony., (which is the only plea that can be considered a general issue, in a writ of dower ;* or if he deny tlie seisin, or the death of the hus- band, it must be considered an admission of the sufficiency of the demand." The form of the writ of Dower, as of most other writs, is established by statute f and the count in our practice is very nearly the same, as in the writ of Dower, unde nihil habet, at the common law.^ In this action it is not necessary to describe the lands by metes and hounds, if they -are sufficiently distinguished and known by any particular name or other description. It may be remarked, indeed, that a precise description of the premises is the less requisite, because the third part is to be assigned to the demandant, upon a mew of the whole. ^ Writs of Dower are issued, endorsed, and serv- ed, in the same manner as writs of Entry, and See 2 Wils. 128, Robins vs. Crutchley. 2 10 Mass. R. 83, Ayer vs. Spring. 3 Mass. Stat. 1783, ch. 40, § 3. " App. No. 75. ^10 jMass. R. 83, Ayer vs. Spring. SEC. IX.] WRITS OF doWer. 303 other real actions.* And the statute^ which re- quires that " when the tenant against whom a 7eal action is brought, is not in actual possession of the lands demanded, the person in jiosscssion shall be served with a copy of the writ or original summons, or by having it read to him," expressly includes writs of Dower, as well as other real actions. The same remark applies also to the other statute, which provides that if the tenant is arrested, " his own bond, and no other shall be required for his appearance to answer to the same."^ Sect. IX. To writs of Dower, as to all other real actions, the tenant may plead in abatement or in bar. And it may be here remarked, that the pleas to the ivrit are very nearly the same in this action, as in writs of Entry ; but the pleas in bar of the action are almost ivholly different. Still, however, as the same general principles apply to the pleadings in both actions, it may, per- haps be sufficient for our present purpose, to refer to what has been before stated,^ and only to add in this place a few remarks upon those pleas which are peculiar to ivrits of Doiver. And it may be observed in the first place, that the omission of the demandant to comply with the 1 Ante, 93, 200, 201. 2 1797^ ch. 50, § 4. 3 Sfat. 1795, cb. 75, § 1. ^ Chap. IV. § 17. 18. 19. 304 REAL ACTIONS. [CH. V. requisitions of the statute referred to in the last section,^ may give occasion to plead several pleas in abatement. 1. The demandant may commence her action, without making any previous demand to have her dower assigned. 2. After a proper demand has been made, the action may be com- menced before the month, required by the statute, has elapsed. 3. The demand, though seasonable, may not have been made upon the proper person. And each of these exceptions might be made the subject of a distinct plea in abatement. But tlio two first exceptions, it seems may be well enough comprehended in a plea of the same form, without making it objectionable on the ground of duplicity; and therefore one precedent will be sufficient for both purposes.^ As to the third exception, it will be recollected that the demand of dower is required by the stat- ute to be made upon " the heir, or person having the next immediate estate of freehold or inheri- tance.'''' That person, when not the heir, may be either the alienee or disseisor of the husband, or an abator, who after the death of the husband, has entered before the heir. And the plea, it seems, should expressly aver, that the person therein named had the next immediate estate, at the hus- band's death. But it does not appear to be ne- 1 Ante, p. 301. 2 App. No. 76. SEC. IX.] WRITS OF DOWER. 305 cessary to allege in what character he took the estate ; whether as disseisor, abator, or alienee of the husband. But if the estate descended to sev- eral heirs, it seems the plea ought to deny that any demand had been made upon either of them.* If the husband aliened distinct parcels to differ- ent persons in severalty, there must be several distinct demands, as well as separate actions. But if several tenants of distinct parcels are sued jointly, the exception must be taken by pleading several tenure in abatement.^ Pleas in bar are not very numerous in this action ; and according to the ancient practice, they were, (as has been already intimated,) nearly all of them different from the pleas applicable to writs of Entry. But non-tenure and disclaimer, which in England could be pleaded only in abatement, are by our practice allowed to be pleaded in bar, as we have already seen.^ And as writs of Dower, like writs of Entry, can be maintained only against the tenant of the freehold, it follows of course, that these pleas, which deny tliat the freehold is in the tenant, are equally applicable to both actions.^ Besides the general pleas already mentioned, there arc several other pleas in bar, peculiar to 1 App. No. 77. * 1 Greenl R. 30, Fosdick vs. Gooding. '^ Ante, p. 220, 221. * 14 Mass. R. 239, OtisxH. Warren. 39 306 REAL ACTIONS. [CH. V. writs of Dower, which will now he briefly no- ticed ; and of which the tenant may plead more than one, by leave of court, if his case require it.^ 1. The first Ave shall mention is the plea, that "the demandant was never lawfully married ;" generally denominated a plea of ne ungues accoupU, in loyal tnairimonie. And this plea is sometimes considered the general issue in this action.^ But in our practice this plea is concluded with an aver- ment, and not as pleas of the general issue usual- ly conclude.^ And the demandant, in her replica- tion, afurras a marriage at a particular time and place, and concludes to the country.^ As questions relating to the legality of marriages are not generally cognizable by the courts of com- mon law in England, both the plea and replica- tion in this case conclude in the same manner, with the averment, " et hoc paratus est verijicare, iibi et quando, et prout curia,'''' &lc.^ Then follows the mandate to the bishop, " diligently to enquire, and to certify to the court the truth in the premises ;" and his certificate is conclusive upon the question. But where to a plea of ne ungues accoupU, the demandant replied alleging a lawful marriage in Scotland, it was held that the fact 1 9 JIass. R. 218, Cailhi ts. Vi'are. 2 2 Wi!s. 128, Robins vs. Crutchleij. =* App. No. 78. " App. No. 70. ^ Rast. 228. a. pi. 3. feEC. IX.] WRITS OF DOWER. 307 might he tried by the jury ; and therefore it was proper to coiielude the replication to the country.^ 2. The tenant may plead that the husband of the demandant was not seised of such an estate, as to entitle her to dower ; which is usually styled the plea of ne unques seisie que doiver. As the count expressly avers a seisin in the husband, this plea, which denies that averment, does not usually conclude with a verification, but to the country.^ 3. The tenant may also plead in bar that the husband of the demandant is living in some other place, which he names in his plea.^ And this plea should conclude with an averment, so as to give the demandant an opportunity of making an ex- plicit denial of that allegation.^ It may perhaps be thought, that after the statement of the hus- band's death in the count, the plea, which avers that he is living, ought to conclude to the country, like the plea in the preceding case, which denies the husband's seisin during the coverture. But it may be remarked that the statement of the hus- band's death is rather by way of recital, and not 7i formal avermefit, like the allegation of seisin in the case referred to. ^ H. Bl. 145, Ilderton vs. Ilderton. 2 App. No. 80 ; Rast. 230, a. pi. 10. 3 Booth, 1G9. 4 App. No. 81 : Rast. 228, a. pi. 1. c>U8 REAL ACTIONS. [CH. V. To this plea the demandant may reply, express- ^ ly affirming the death of the husband, and conclud- ing to the country.* The ancient precedents of this replication state not only the time and place of the husband's death, but also mention m ichat church-yard he was interred.^ But this last aver- ment is quite unnecessary. It is mentioned in several books, as a striking peculiarity in the action of doiver, that when the tenant pleads this plea, the issue is to be tried by witnesses.^ And Rastell gives the form of the en- try of this trial upon the record, with the testimony of the secta or witnesses, produced on the part of the demandant.^ It is admitted on all hands, that this mode of trial, (which seems to be as ancient as the law,) was permitted in this instance, as a special favour to the demandant, that the tenant might not delay the decision, as he would be able to do, if this issue were to be tried by a jury. In our practice, this issue is of course to be tried by a jury, like all other issues of fact. 4. Another defence, which may be pleaded in bar of this action is, that the tenant, (or some other person who was tenant at the time,) has already assigned to the demandant her reasonable dower, out of the lands in question. This plea should 1 App. No. 82. 2 Rjist. 228, a. pi. 1. 3 Finch, 89, b; Booth, 167 ; Co. 2 Inst, 80. 4 Rast. 228, a. pi. 1. SEC. IX.] WRITS OF DOWER. 309 expressly aver the acceptance by the demandant, of the dower so assigned.^ And the demandant may by her -replication deny that any assignment was made, prout, &c. concluding to the country.^ 5. It has been before mentioned that the wife might bar herself of dower, by executing a deed of conveyance with her husband, and thereby ex- pressly relinquishing her claim to dower in the premises. But such a relinquishment by the wife must be pleaded in bar by the tenant ; and cannot be given in evidence under any other issue.^ The demandant may reply, that she did not relin- quish her right of dower, &c. negativing the terms of the plea. But if the plea sets forth a release of dower, with a profert of the deed, it seems the demandant, if she denies the execution of it, may reply non est factum, generally ; or if she admits the execution of the instrument, and only denies the sufficiency of it to bar her action, she may crave oyer of it, and demur. 6. If the husband was joint-tenant with anoth- er who survived him, of the lands in which dower is demanded, the wife, as we have before seen,'* cannot be endowed. But this defence, (thouo^h it goes to the seisin by the husband,) must be plead- 1 App. No. 83 ; Rast. 229, b. pi. 6. 2 App. No. 84 ; Rast. vhi sup. 3 ^pp. No. 85. -* Ante, p. 281. 310 REAL ACTIONS. [CH. V. ed ill liar, and cannot be given in evidence under the plea of ne ungues seisie que dower. 7. Another plea in bar, not very unfrequent in ancient times, was the plea that the demandant had voluntarily eloped from her husband, and lived in aduUery, without having ever been reconciled to him during his life. To this plea the demand- ant may reply in such a manner, as to take issue upon the elopement, or the subsequent reconcile- ment to the husband.* But it is said by lord Coke, that cohabitation is not conclusive evidence of reconcilement ;^ though the contrary doctrine seems to be held in Dyer.^ It was formerly a very common plea to a writ of Dower, (especially when the action was brought against the heir of the husband,) that the demand- ant detained from the tenant, the charters, or evi- dences of title to the lands descended. This was called a plea of detinue of charters, and was held to be a good plea in bar. But the demandant might avoid it, by replying that she was always ready to deliver them ; and she might tender them in court, and have judgment forthwith.'^ By our law respecting the registering of titles, and 1 Rast. 230, a. pi. 30 ; 2 Co. Inst. 433, 435. 2 Co. 2 Inst. 436. 3 Dyer, 106, b. pi. 22, Hau-orth vs. Herbert. * Rast. 229, b. 230, a. SEC. X.] WRITS OF DOWER. 311 the practice under it, seem to have rendered this plea obsolete ; and it does not appear to have been adopted in our courts. Besides the pleas which have been already noticed, there are several others to be found in Rastcll and the other books of entries ; but as they seldom occur in practice, and few of them are applicable to our circumstances, they need not be mentioned. With regard to the verdict in this action, no particular remarks seem to be required. As in all other cases, it should be made conformable to the pleading, and distinctly fmd all the points in issue between the parties. But, as was before remarked in relation to writs of Entry, ^ if the substance is found for the demandant, she will be entitled to judgment, though all the circumstances are not par- ticularly found. Sect. X. The judgment for the demandant in an action or writ of Dower, where she has ob- tained a verdict, is, " that the said M. recover her seisin against the said A. of the said third part of the tenements aforesaid, with the appurtenances, and her damages assessed by the jury, in form aforesaid, at the sum of dollars, together with her costs," 8ic. If the judgment is upon confession or default, the damages may be assessed by the court, with 1 Ante, p. 243, 312 REAL ACTIONS. [CH. V. the assent of the demandant, or upon his motion by a jury, at the bar of the court.* And when the damages are assessed by the court, the/orm of the judgment is so far varied, as to make it conforma- ble to that fact. By the common law, no damages were given in the action of dower, or any other real action. The statute of Merton^ gave the wife damages against the heir of the husband, for land of which he had died seised. And by the law of England, no damages are recoverable against any other person than the heir, or an abator, or their assign- ees.^ The law upon this subject appears to be the same in New York.^ But if the heir has aliened, there seems to be no apportionment of the damages between him and his grantee ; but the tenant in possession is answerable for all the dam- ages, from the death of the husband.^ If the tenant, (according to the practice of the England courts,) comes the first day, and acknowl- edges the action, and pleads that he was at all times ready to render dower, the demandant may take judgment immediately for her seisin only, without 1 Stat. 1784, ch. 28, § 7 ; G Mass. R. 499, Perry vs. Good- win. 2 20 H. III. ch. 1. ^ Co. Litt. 32, b. * 2 Johns. R. 119, Embree vs. Ellis. * 6 Johns. 390, Hitchcock \s. Harriii^fon. SEC. X.] WRITS OF DOWER. 313 damages. But if the demandant would claim her damages for the detention of her dower, she must reply, that she requested the tenant to assign her dower, which he had not done ; and if the tenant take issue upon the demand, and it is found for the demandant, she will of course be entitled to judg- ment for her seisin and damages.^ But in Massachusetts the law is otherwise. The object of the statute^ before referred to, is to give the wife damages in all cases where she is entitled to dower, if it is not assigned to her in a reasonable time ajter it is demanded, whether the husband died seised of the land, or not. And that time is fixed at one month. But the demand is not only necessary in order to entitle the wife to damages for withholding her right, as in England ; it is an indispensable prerequisite to the mainte- nance of the action, even for the recovery of the dower. With regard to the value of the dower, to be recovered by the demandant, there is an important distinction to be noticed, between those cases where the husband died seised, and where he had aliened the land in his life time. If the husband died seised, the dower is to be assigned according to the value of the property at the time of the assignment, however long the wife may have ■ — - — ■ ■ — — ■ „ ■ ,. „ -, «(. 1 See Co. Litt. 33, a. n. 2 1733, ch. 40, § 1. 40 314 REAL ACTIONS. [CH. V. delayed to make the demand. But where the husband aliened the lands in his lifetime, and the increased value has arisen from the labour and expense of the purchaser, it is said that the wife *' is entitled to her third part of the land, in the condition it was in at the time of the alienation of her husband."^ In another case, where dower was de- manded in land that had been set off upon execu- tion to a creditor of the husband in his lifetime, the court say, " the demandant might have been res- trained to the value of the land, as it was at the time of the extent of the execution against the husband.'*^ Still it does not appear to be deter- mined, whether the wife shall be excluded from the benefit of the increase of the rents, or appre- ciation of the value of the estate, arising from causes unconnected with any i^nprovements made by the labour or expense bestowed by the purcha- ser ; or whether she is to be excluded from the benefit of the improvements, arising from such labour and expense only, and not from the in- creased value arising from accidental causes. The latter position seems to be clearly intimated by the remarks which fell from the court in one case. But those remarks are to be regarded as the dictum of the chief justice, and not the opinion of the 1 9 Mass. R. 221, Catlin vs. Ware. 2 10 Mass. R. 83, Ayer vs. Spring. SEC. X.] WRITS OF DOWER. 815 court, as the point in question did not arise in that cause.* In Neto York it is provided by statute, that where the husband aliened the land, the wife shall recover dower " according to the value, exclusive of the improvements made since the sale." And the court has given such a construction to it, as excludes the wife, not only from the benefit of the improvements made by the purchaser^ but from the increased value arising from any other cause. ^ This construction, it should be observed, was made, partly at least, with reference to the doc- trine established in that court, with regard to the damages to be recovered in actions of covenant : it being there held that the grantee who has been evicted cannot recover damages, either for the improvements he has made, or the increased value of the land.^ A like distinction was early adopted in the English courts, between a recovery against the heir, and against his assignee. For if the recov- ery was against the heir, the dower was assigned according to the value at the time of the assign- o me7it, although the value might have been enhanc- ed by the improvements made by the heir. But 1 3 Mass. R. 544, Gore v?. Brazier. 2 2 Johns R. 404, Humphrey \s. Phinney ; 11 Johns. 510, Dorchester vs. Coventry ; 15 Johns. 23, Dolfys. Basset. ^ 4 Johns. R. Pitcher vs. Livingston. 316 REAL ACTIONS. [CH. V. if the value had been increased by buildings, or other improvements, made by the grantee of the heir, and dower was afterwards recovered against him, it was to be assigned according to the value at the time of the conveyance. The reason as- signed for the distinction is the same that is refer- red to by the court of New York, that the heir would only be bound to warranty, according to the value at the time he n»ade the conveyance. Therefore, if the wife were allowed to recover, according to the improved value, it would be more than the tenant would recover over against his feoffor or grantor.^ This reason, it may be remarked, does not hold in the law of Massachusetts. For the gran- tee of the heir, against whom dower has been recovered, has by our law^ a remedy against his grantor, upon the covenant against incumbrances, or the covenant of warranty, usually contained in our conveyances : and upon breach of either of those covenants, the rule or measure of damages would be the actual injury sustained by the eviction.^ It seems, however, that where the action is brought to recover dower, in lands which were aliened by the husband, the tenant, (if he would 1 Co. Litt. 32, a. n. 8. 2 3 Mass. R. 546, Go7-e vs. Brazier. SEC. XI.] WRITS OF DOWER. 317 avail himself of the circumstance that they had been increased in value by improvements made since the alienation,) should put that fact upon the record by a proper plea or suggestion ; and not controvert the right of the demandant to recover.^ The statute before referred to does not contain any provision for ascertaining whether the lands aliened by the husband, and in which dower is demanded, have been made more valuable, by the improvements of the tenant, after the alienation. And probably no settled practice exists in our courts upon the subject. Perhaps the most cor- rect as well as the most convenient method would be, (after the proper allegation and request has been put upon the record by the tenant,) to have the increased value found by the jury, at the bar of the court, in the manner of the inquiry as to the value of the improvements made by the tenant, and those under whom he claims, in writs of Entry. Or with the assent of the parties, it might perhaps be more conveniently determined by an assessor, named by them or by the court.^ Sect. XI. By the ancient law, after the de- mandant had recovered her dower, she might sue out her writ of Habere facias seisinam, with a 1 10 Mass. R. 83, Ayer vs. Spring ; App. 86. 2 See 15 Johns. R. 23, Dolfvs. Basset, 318 REAL ACTIONS. [CH. V. Fieri Jacias clause as to the damages and costs. 2. She might take an Elegit for the damages, with which the Habere facias seisinam might be united, in the same precept. Or 3. She was allowed to take her Habere facias seisiuam, and a separate writ of Elci^it. Sometimes the writ expressly commanded the sheriff to cause the demandant to have seisin and assignment of one third part of the lands by metes and bounds. In other cases he was only commanded to cause her to have sei- sin of the third part of the land, and to make known to the justices, at the return of the writ, in what manner he had executed it.^ But it was the duty of the sheriff to make the assignment by metes and bounds, in the latter case, as well as in the former. Jf the sheriff does not return that he has given seisin by metes and bounds, it will be ill, unless it appears that no division of the inheritance could be made ; as where dower is recovered in a mill, or in common of pasture, and the like.^ But the demandant may waive the right to have the as- signment by v.ietcs and bounds ; and in that case an assignment in common, or of the whole for a certain portion of time, will be good. After the recovery of judgment in a writ of Dower, the demandant cannot enter immediately, 1 Rast. 235, a. b. 2 Co. Litt. 32, a, b. SEC. XI.] WRITS OF DOWER. 319 without suing out a writ of seisin, as she might do, after a recovery in a writ of Entry. For the recovery is not of any certain part ; but it is to be made certain by the metes and bounds to be established by the sheriff.* If under the Habere facias seisinam in dower, the sheriff gives seisin of more than a third part, the remedy of the tenant is by a scire facias, to have aa admeasurement of the lands set forth in the return.^ But where the guardian, or the heir himself, while under age, has endowed the wife of more than a third part, his remedy is by a wiit of Admeasure- ment of Dower. ^ By the law of Massachusetts, upon the recov- ery of judgment in a writ of Dower, a writ of seisin, (the form of which is prescribed,) issues to the sheriff, who is required by the statute to cause the dower to be set forth, by three dis- interested freeholders of the county, who are to be sworn before a justice of the peace, " to set forth the same equally and impartially, without favour or affection, as conveniently as may be."^ And it is to be by metes and bounds, unless the estate is incapable of division ; and in that case, (as by the common law,) it may be by " a third part of the rents, issues, oi profits,'''' 1 Co. Litt. 34, b ; 16 Mass. R. 193, Ilildreth vs. Thompson. 2 Vln. Dower Q,. a. pi. 16. ^ n,^ ^y 7^ g, * Sfat. 1783, ch. 40, § 2 ; App. 87. 320 REAL ACTIONS. [CH. V. If after the judgment is recovered, the tenant die before the writ of seisin is sued out and served ; though it be afterwards sued out and served, noth- ing will pass by it.^ And if after verdict for dam- ages, but before judgment, the demandant dies, it seems that no scire facias lies for the executor or administrator of the demandant, to have execu- tion for the damages and costs. For the damages are only due by way of satisfaction for an injury, in withholding her dower, which is in the nature of a tort, which dies with the party who suffers, as well as with him who does it. But if judgment had been rendered in the lifetime of the demandant, (though the writ of seisin had not issued,) the damages would have vested in her as a debt ; and in that case the executor or administrator should have had them.^ The statute before mentioned, (in affirmance of the common law,) expressly prohibits the party who recovers dower from committinQ' or suffering any strip or waste^ upon penalty of forfeiting the part of the estate upon which such strip or waste shall be made, and damages also, to be assessed to the person wlio has the next immediate estate in remainder or reversion. 1 16 Mass. R. 191, Hihlnthvs. Thompson. 2 1 Salk. 232, Mordant vs. Thorold. SEC. XI.] WRITS OF DOWER. 321 It only remains to add, that the assignment of dower implies a warranty of title by the party who makes the assignmeat. Therefore if the ten- ant in dower was impleaded, she might vouch, by the old law, and upon an eviction, recover a third of the two remaining parts of the land, whereof she was endowed.* And it seems also, that if she is evicted of the third part set off to her upon a writ of seisin by the sheriff, she may thereupon have a scire facias, and recover for her dower one third of the remaining lands of which her husband was seised, and of which the tenant, against whom she recovered her dower, continues to be seised. CHAPTER VI. Writs of Forme don, and the proceedings therein. Sect. I. The writ of formedon is an an- cient remedy provided by the law for him who hath right to lands or tenements, by virtue of a gift in tail ; and it lies for the heir in tail, the reversioner, or the remainder-man in tail, or in fee. It is called a Formedon, Breve de forma donatio- nis, because the demandant claims the estate ac- '- Co. Litt. 38, b. 41 322 REAL ACTIONS. [CH. VI. cording to the form of the gift, secundum J ormam doni. The ^'i rit of Formedon is of three kinds, accord- ing to the character or capacity in which the de- mandant makes his claim. If the demandant claims the inheritance as an estate tail, which ought to come to him by descent from some ancestor to whom it was first given, his remedy is by writ of Forme- don in the descender. But if, instead of claiming as heir to the entail, his claim is to the reversion after the estate tail has expired, or been otherwise determined, the appropriate remedy by which the reversion is to be recovered, (whether the demand- ant is the original donor of the estate tail, or his heir or assignee,) is by writ of Formedon in the reverter. And where the demandant does not claim an estate tail by descent, or the reversion after such an estate is determined ; but his claim is to the remainder of the estate, either in tail, or iwfee, after the determination of some prior estate in tail or for life, the proper action for his pur- pose is the writ of Formedon in the remainder. This writ is said to be in the nature of a writ of Right, or sometimes, to be the writ of Right for the tenant in tail ; for he can have no higher writ, since the absolute ivrit of Bight is confined to those who claim an estate in fee simple.^ As ^ Co. Litt. 326, b ; Co. 2 Inst. 291. SEC. I.] WRITS OF FORMEDON. 323 every writ of Formedon is for the recovery either of an estate tail, or the fee simple, it follows of course that it must be brought against the tenant of the freehold ; consequently if the person against whom it is brought has not the freehold, he may abate the demandant's writ by pleading 7ion- tenure, unless he is pernor of the profits. By the statute of 1 H. VII. ch. 1, writs of Formedon are maintainable against the pernors of the profits, though they may not be tenants of the freehold : and all recoveries against such persons as take the profits were declared to be as good and effectual for the recoverors and their heirs, as if the said persons had been actual tenants of the freehold.^ But the writ shall suppose such per- sons to be tenants of the freehold, and shall not be different from the usual form. And if the ten- ant plead non-tenure, the demandant may reply, that the tenant made a feoffment to persons unknown, to defraud him of his action, and aver that he continues to take the profits. To such a replication, according to the ancient prac- tice, the tenant could only rejoin, by denying that his took the profits ; for the feoffment was not allowed to be traversed.^ 1 F N. B. 212. 2 Vin. Form. G, pi. 4, 3 ; Bro. Traverse, pi. ISO. 3:24 REAL ACTIONS. [CH. VI. If the heir in tail has once acquired the seisin, after the death of his ancestor, he shall not after- wards have a writ of Formedon, until he has been lawfully deprived of his seisin. For if the heir in tail is ousted, after he has acquired a seisin in fact of the estate tail, his remedy is by a writ of Entry, upon his own seisin, and not by a writ of Formedon. Therefore if a tenant in tail discon- timies the estate tail, and dies, and his heir enters upon the discontinuee, and acquires the seisin of the estate tail, and then is ousted by a stranger, in such a case the heir in tail shall not have a writ of Formedon in the descender against the stranger, but a writ of Entry. But, if after the stranger has ousted the heir, the discontinuee re-enters, he is thereby invested with his former estate, and the remedy of the heir against him is by a writ of Formedon in the descender.* Writs of Formedon may be maintained, not only for lands, but for such real hereditaments as may be entailed. And these, according to the ancient law, include also rents, commons, and what are denominated profits apprender, issuing out of lands and tenements ; as a grant of a cer- tain sum of money, issuing out of any lands, to a man and the heirs of his body ; and also a like grant of the moiety of the profits arising from a 1 Bro. Form. 47 ; 7 Edw. IV. 19 ; Via. Form. F.pl. 4, 5.. SEC. I.] WRITS OF FORMEDON. S25 mill, a ferry, a fishery, and the like.* But in our practice, (as has been before remarked,)^ it seems that real actions lie only for the recovery of im- moveahle corporeal hereditaments. The process and proceedings in writs of For- medon were much the same in the ancient practice, as in writs of Entry. The law was the same also with respect to the common incidents of real ac- tions, such as essoins, aid-prayer, receit, and voucher. The tenant was entitled to have a view of the lands demanded ; and, if he was an infant to have the parol detnur, for his nonage, in the same manner as in writs of Entry .^ It will be sufficient therefore to refer to what has been before stated in relation to those particulars,^ without re- peating it here. In every writ of Formedon, there are two in- dispensable requisites to be observed. The first is the correct statement of the gift ; the other the conveying or deducing a title to the demandant. If either of these was wanting, the writ was for- merly considered insufficient in substance, and not aided by the statute of jeofails.^ IF. N. B. 212. 2Ante, p. 150. 3 1 Lil. Abr. 632 ; Brownl. R. 154, 155. 4 Ante, Chap. II h III. 5 18 Eliz, ch. 14; see Gouldsb. 126. pi. \&., Downall vs. Cfliesby. 326 REAL ACTIONS. [CH. VI. The English statute of limitations* provides, that all writs of Formedon in descender^ m re- mainder, and in reverter, shall be sued within twenty years after the title and cause of action first fallen. And if any person that shall be enti- tled to such writs, at the time of such right or title first accrued, is within the age of twenty one years, feme covert, nan compos mentis, im- prisoned, or beyond the seas ; all such persons, and their heirs, may bring their actions withiti ten years after their full age, discoverture, becoming of sound mind, enlargement out of prison, or com- ing into the realm, or death. The statute of limitations, in Massachusetts, is the same, with only some slight verbal differences, not affecting the construction ; excepting the ad- dition, after the clause " beyond the seas," of the words, " or without the limits of the United States."^ After these general remarks, it will be sufficient to notice briefly, in their order, each of the writs before mentioned. Sect. II. The writ of formedon in the DESCENDER, wliich will be first noticed, is found- ed upon the statute of Wesminster 2,^ commonly < — --" ' — ' 1 21 Jac. I. ch. 16, § 1. 2 Mass. Stat. 1786, ch. 13, § 4. M3 Edw. I. ch. 1. SEC. II.] WRITS OF FORMEDON. 327 called the statute De donis condition alibus ;* and lies where a man gives lands to another, and the heirs of his body ; or to a man and woman, and the heirs of their bodies ; or formerly, to a man and a woman who was cousin of the donor, in frank marriage; by force of which gift the * Notwithstanding what is said here by Fitzherhert, and the remark of lord Coke, Co. 2 Inst. 336, that " a Formedon in the descender law not at the common law, but was given by this act, and the form of the writ is here set down ;" it seems that the statement is not quite accurate. For it is founded upon the supposition, that the issue had a remedy at the common law, against the alienation of his ancestor, by the writ of Mort- d'ancestor. But as one of the three points of inquiry in this writ was si antecessor fuit seisitus^ in dominico sua ut defeodo, die quo obiit, though it is certain that it might be maintained against an abator ; it is on the other hand equally clear, that it could not be supported against a disseisor. Booth, 207. And there is one case, in which a Formedon in the descender seems to have been allowed at common law. It was where a man had issue a son, and then the wife died, and the husband married a second wife ; and after the marriage lands were given to the husband and second wife, and to the heirs of their bodies, and they had issue of that marriage, and both husband and wife died, and a stranger abated. Here the issue of the second marriage could not maintain a writ of Mortd'' ancestor , because another of the three points of inquiry was, si petens sit propin- quior hveres. For the son by the second marriage could not answer this description, while there was a son by tlie first maa- mge. Plowd. 239 ; Booth, 141, 207, 328 REAL ACTIONS. [CH. VI. donee becomes seised. If the donee in any of these cases afterwards aliened the lands so given, und died, or was disseised and died, his heirs should have this writ, to recover such lands. For the statute expressly declares, that " the will of the donor, according to the form in the deed of gift manifestly expressed, shall be from henceforth regarded."^ Before this statute, all inheritances were estates IN FEE ; that is, either fee simple absolute, or fee simple conditional. And tenants in fee simple conditional were permitted, after the birth of issue, to alien the fee, upon a supposition, that by the birth of issue, the condition, upon which the estate was given, was performed. But this, the statute declares to be manifestly contrary to the form and intent of the gift. It therefore provides that from henceforth the will and intent of the donor should be observed ; and that the fee should revert to him, for want of issue of the donee. In construing the provisions in the statute de donis, which required that the ivill of the donor should be observed, and that the donee should not have power to alien the estate, the courts de- termined that the donee should not have 'dfee sim- ple ; but that the estate should be divided, so as to give a particular estate to the donee, and a 1 F. N. B. 211. SEC. II.] WRITS OF FORMEDON. 329 reversion to the donor. The consequence of thisr construction was, that where the donee had ii fee- simple conditional before the statute, he now had only an estate tail. And of course the donor, who had before only a possibility, which the donee might utterly defeat at his pleasure, as soon as he had issue, had now, by the construction given to the statute, the^^e simple in expectance, upon the determination of the estate tail, which, though con- tingent, is a reversiofi. By this division of the estate the donor, even after issue, could not on the one hand, either bar his issue, or charge the estate with any debt or incumbrance ; nor, on the other deprive the donor of his reversion, upon failure of the issue, by any alienation, charge, or forfeiture.^ The effect of the statute, therefore, was not to create a neiv estate, but only to give a neiv con- struction. For by disafiirming the supposed j9er- formance of the condition, it preserved the estate to the issue, so long as there was issue to take it ; and it also preserved the reversion to the donor, when the issue of the donee happened to /ail. The consequence of this construction was, that an estate of inheritance still remained in the donee. But as it was limited to a particular description of heirs, who alone were entitled to take under it ; it received the appellation of an estate tail, that is 1 Co. 2 Inst. 335. 42 330 REAL ACTIONS. [CH. VI, a restricted or curtailed inheritance, "^ in contra- distinction from the absolute fee simple, which was considered as still continuing in the donor, as his reversion ; unless he had limited it, by waj of remainder after the estate tail, to some other person.^ Another important alteration was made in the law by the statute de donis, in securing the rever- sion to the donor and his hftirs. For by the com- mon law, the student will recollect, no remainder could be limited after an estate in fee, whether absolute or conditional. But when estates in fee simple conditional were changed by the operation of this statute, into estates tail, remainders were permitted to be limited after them. And by anal- ogy to the remedy that had been thus provided for the issue and the reversioner, a writ of Formedon in the remainder was now given to the remainder- man : not by force of any express provision of the statute, but by implication and inference. For after the discontinuance of the estate tail, as the 1 Wrights' Ten. 18G ; Plowd. 251. * Donationum, alia absoluta et larga, alia stricfa et coarcta- ta, sicut certis hcereclibus, quibusdam a successione cxclusis. Flet. lib. iii. cap. 3, § 5 ; Bract, lib. ii. cap. 5, § 3. Et ascuns autres douns sont piires et larges, et ausi ascuns autres sont estrcytcs, ct in fourme sicomc a ascuns ccrteyncs Jieires, nosmes en les doims, et ausi sicomc de certcynes gents foi'- p-is en douns. Brit. cap. 34, § 190, fol. 89, a. SEC. II.] WRITS OF FORMEDON. 331 remainder-man was subject to the same mischief, as the issue, or the reversioner in tail, it was thought proper to give such a liberal and equitable construction to the statute, as should extend to him the same remedy.^ Besides the getieral writ of Formedon in the descender, there were also in the ancient law, two' other writs of Formedon in the descender, which may be denominated special writs. 1. The first of these writs is sometimes called a Formedon of land held in coparcenary. This was the remedy where an estate tail descended to several coparceners, who entered and made partition between them ; and after the partition one of the coparceners made an alienation of her part of the estate, and died. In this case the survivors might maintain this writ against the alienee of the deceased coparcener. So also, if lands held by the tenure of Gavel- kind were entailed, and descended to several broth- ers, as heirs in tail to their father, and they made partition of those lands between them, and one aliened and died, the others might maintain this writ against the alienee, in the same manner as in the case of parceners before mentioned.^ And if two coparceners who were tenants in tail made partition, and one had issue and died, and then the ^ See Co. Litt. 327, a. n. 2. - F. N. B. 214. 332 REAL ACTIONS. [CH. VI. survivor died without issue ; the heir of her who first died might have this writ to recover the share of the survivor.* In these cases, the writ it seems is in common form ; but the count must be special^ and set forth expressly that the lands are partible^ 2 The other special writ of Formedon in the descender to which we alluded is called a Forme- don, qui insimul tenuit. This writ might be brought by one coparcener, or by one heir of Gav- kind lands which were entailed, where they held such lands together, not having made any partition between them. In this case, if one of the copar- ceners aliened her part to a stranger in fee, and died without issue, the other coparceners might have this writ against the alienee. And if one of the coparceners, (instead of aliening her estate,) had issue and died, and either a stranger or the other coparcener ousted the issue, in this case the issue, or whoever was heir in tail of these lands, might have this writ of Formedon against the stranger, or against the otiier coparcener for this deforcement.^ And where the writ was brouQ^ht by heirs in tail of Gavelkind lands, the writ was in common form; but the count was special, set- ting forth the custom.* 1 F. N. B. 214. 2 Rast. 366, pi. 8, 9. ^ F. N. B. 216 ; Rast 366, b. pi. 4. ^ F. N. B. 217. SEC. II.] WRITS OF FORMEDOxV. 333 It will doubtless occur to the student that these special actions must be more conformable to our law of descents, than the common ivrit of Forme- don in the descender. And there are precedents upon the records of our courts, in the early part of the last century, (when this action was brought much more frequently, than at a later period,) which bear a greater resemblance to the special count, than to the general writ of Formedon, which then continued to be occasionally used in the courts of Westminster. The COUNT in a Formedon in the descender ought to name every heir to whom any right des- cended ; because as the demandant is privy to the pedigree, he ought to be acquinted with every step of the descent. But it need not mention those who died in the lifetime of their ancestor, and therefore never took the estate tail. Thus, if the father, tenant in tail, discontinued the estate tail, and died, and the eldest son survived the father, and then died without issue ; if the younger broth- er brought a Formedon in the descender, he ought to allege that the right descended to the elder brother, as son and heir to the father, and so to derive title to himself, as brother and heir to the deceased brother. But if the elder brother had died before the father, the demandant should omit him in the count, and derive title from the father, directly to himself, as soti and heir ; because no 334 REAL ACTIOINS. [CH. VI. right ever descended to the eldest son, who died before his father. But there was in ancient times one distinction upon this subject, Avhich savoured of extreme refinement. For though every son who survived his father, and held the estate tail, should be named as son and heir of the father ; jet if the son who survived his father was never actually seised, (having died without making any entry upon the estate,) he was to be named in the count, but only as son, and not as son and heir of his father.* This distinction however does not seem to have been generally regarded. The demandant must always make himself son and heir, or cousin, (consanguineus,) and heir to him who was last actually seised by force of the entail. For if there was a later seisin of an heir in tail, than the last person named in his writ, by the demandant, it might be pleaded in abatement. It was also equally necessary that the person last actually seised should be expressly stated to be heir in tail to the donee. If it was only stated that he was son, and not son and heir, it seems that according to ancient strictness, it would have been bad upon demurrer. But notwithstanding the ancient rule above referred to, it does not seem that any exception could be taken to the count, if it named the issue, son and heir, instead of son only ; 1 Reo-. 238, a. SEC. n.J WRITS OF FORMEDON. 335 though he had but a seisin in law, and not an actual seisin of the entailed estate. And it is the advice of lord Coke, that the demandant should state every one whom he names in his writ to be son and heir, though they were never actually seised by force of the entail. " For thereby," he observes, " the demandant will be certain to make himself heir, as well to the donee per formam doni, as to him who was last seised.* With regard to the allegation of esplees, the rule is not the same in the different kinds of writs of Formedon. When the writ is in the descender, and in the usual form, it is not necessary to allege a seisin in the donor by taking the profits. But such a seisin should be expressly alleged in the donee.* And if alleged in the donor, it is only surplusage, and will not vitiate the writ. If a writ of Formedon in the descender is brought by the heir of the remainder-man in tail, it seems necessary to allege a seisin by taking the profits not only in the original donee, but in the remainder-man also.^ Sect. III. The writ of Formedon in the reverter, it has been already remarked, may be maintained by the ^donor, or by his heir, or the assignee of the reversion. 1 8 Co. 88, b. 2 App. No. 80. ^ App. No. 90 ; and .see F. N. B. 2M, note c. 356 REAL ACTIONS. [cH. VI. Thus where one gives lands to another, or to husband and wife, in tail, and afterwards the donee dies without issue, or the heirs of the donee having succeeded to their ancestor, afterwards die without issue ; the donor, or if he be dead, his heir may now have a writ of Formedon in the reverter, to recover the lands so given, against him who is tenant of the freehold. And if the donor, or after his death, his heir grant the reversion to to another, the grantee of the reversion shall in the same manner have a writ of Formedon in the reverter, to recover the lands, after the estate tail i,s determined.* But if the grant of the reversion is in tail only, and not mfee, and the donee die without issue, the remedy for the grantee is by a writ of Forme- don in the remainder and not in the reverter. For his estate, though called a reversion, is in truth only a remainder ; and the reversion is still con- tinuing in the donor. This writ lay at the common law, before, the statute de donis. For if the donee of an estate in fee simple conditional, prior to that statute, aliened the land, before the condition upon which he held it was performed by his having issue, and he afterwards died without issue, the donor of that estate, or his heirs, might have this writ.^ 1 F. N. B. 219 : 8 Co. 88 ; Buckmere's ca?e. - Finch, 89, b. SEC. III.] WRITS OF FORMEDON. 337 It has been before remarked, that in a writ of Formedon in the descender^ the demandant ought to name every person in the line of descent from the donee, because he'm^ privy to the pedigree, he must be acquainted with every step in the descent.* And in the Formedon in the reverter, the demandant has the same privity as to the pedigree derived from the donor. A like omission, therefore, by him, in the pedigree on the part of the donor, would abate the writ, if seasonably taken advantage of by a proper plea. But the demandant in this writ is not held to the same strictness with regard to the pedigree on the part of the donee, because he is presumed to be a stranger to it.^ Therefore, if a man give lands in tail, and the tenant in tail have issue and die, and the issue afterwards die without issue, and without having entered ; now the donor, or his heir, may have a Formedon in the reverter, in which he may sup- pose the donee to have died without issue. ^ It is said in several books, that in the writ of Formedon in the reverter the esplees ought to be alleged, in both donor and donee. And a distinc- tion is taken between those cases where ?ifee sim- ple is demanded, (as it always is in a Formedon in the reverter,) that there the taking of the profits ^ Ante, p. 333. - Dyer 216, a. pi. 56 ; Wing. Max. 599. ^ F. N. B. 220. 43 338 REAL ACTIOiNS. [CH. VI. should be alleged in both. But where only an estate tail is demanded, it is sufficient to allege the taking of the profits in the donee only} But this rule is not always observed ; and some of the pre- cedents omit the statement of the taking of the esplees by the donee. ^ But the other form seems to be unquestionably the most correct.^ Sect. IV. A writ of Formedon in the REMAINDER, is the appropriate remedy for the re- mainder-man, where one gives lands to another for life or ifi tail, and the remainder to some third person in tail or mfee. In this case, if he who has the particular estate should die, without leav- ing issue which could inherit, and a stranger should intrude, and keep the remainder-man out of possession, the latter might have this action, to recover the estate from the intruder.^ This Vviit, it has been before stated,^ is founded upon the equity of the statute de donis condition- alibus, and is not authorized by express rvords. For a Formedon did not lie at common law, for the recovery of a remainder ajter a gift to one and the heirs of his body. Because such a limitation, before the statute de donis, created what was called a fee simple conditional : and 1 F. N. B. 220 ; 2 Luhv. 963, Himlock vs. Petre. 2 Rast. 375, a. pi. 1. ^ j^pp, 92. 4 F. N. B. 217. 5 Ante, p. 330. SEC. IV.] WRITS OF FORMEDON. 339 the policy of the ancient law allowed no remaind- er to be limited after a fee simple, whether condi- tional or absolute, lest it should lead to the estab- lishment of 3. perpetuity.^ If the remainder is limited to several heirs jointly, and one of them dies, and afterwards the survivor dies, leaving an heir, it seems this heir may maintain his Formedon in the remainder without stating in his writ that his ancestor sur- vived the other joint-tenant.^ Though no Formedon in the remainder lay at common law, after a limitation of an estate in fee simple conditional, it is not certain that there was no such writ, for the recovery of a remainder, limited after an estate for life.^ With respect to the necessity of the demand- ant's setting forth the whole line of the descent on the part of the donee, the same rule holds in the Formedon in the remainder, as was before noticed in the preceding case of the reverter. And it is founded upon the same reason, that the remainder- man is not privy to the pedigree of the donee, who is deemed in the law a stranger as to him. It is said that the demandant in a Formedon in the remainder ought to mention all the prece- dent remainders in tail.^ And there seems to be 1 Co. 2 Inst. 336 ; Booth, 151. 2 p. N. B. 219. 3 F. N. B. 21 7 ; Booth, 151. ^ 8 Co. 88, a. Buckmere's case. 340 REAL ACTIONS. [cH. Vl. the same reason for requiring the issue of him who had a prior remainder to be particularly named, which applies to the issue of the donee, in the Formedon in the reverter, who are generally, though not always named by the demandant in his count. ^ But it is contended by Booth, that it is not necessary to name the issue of the precedent remainder-men in the one case, or the issue of the donee in the other. ^ In the writ of Formedon in the remainder, the taking of the esplees is generally alleged in the donee only ; except in the case of a remainder created by a devise. But when the remainder- man claims as devisee, it is usual to allege a seisin by taking the esplees in the testator, and also in the donee.^ Some of the precedents in this action contain a profert of the deed " which attests the said gift in remainder."^ But it is said by Fitzherbert, that the demandant should not mention the deed in his count ; though the tenant 7nay demand oyer of it ; and if he does, the demandant must shew it.^ There is one further remark, which remains to be added in relation to this writ. If the remainder is once executed ; or in other words, if the remain- der-man has become actually seised of the estate 1 App. 92, 96. 2 Booth, 154. » Rast. 369, b. pi. 1, 2, 3 ; App. 94, 96. ^ Rast. 369, b, pi. 1,3. s p. N. B. 219. SEC. v.] WRITS OF FORMEDON. 341 tail in jjossession, so that the right, upon his death, descends to his heirs, they shall not have a For- medor in the remainder, but in the descender. This may perhaps be made more plain bv an ex- ample. Suppose then, that A. gives lands to B. in tail, with a remainder to C. in tail, and after- wards B. dies without issue, and thereupon C. enters, and becomes actually seised of an estate tail in possession, and then aliens the estate tail in fee, and dies. If now the issue of C. would pursue their remedy by a writ of Formedon, to recover the estate tail, it must be in the descender and not in the remainder. For after the remain- der-man becomes actually seised of the remainder, his situation, and that if his issue also, will be precisely the same, as if he had been the donee of the first estate tail.* Sect. V. The pleas of the tenant to writs of Formedon may be either in abatement or in BAR. And most of the pleas in abatement, (which are not applicable to personal, as well as to real actions,) are the same as in writs of Entry ; viz. Alienage, Non-tenure, Sole or Entire-tenure , Several-tenure, and Disclaimer. The same pleas may also be pleaded puis darrein continuance, viz. Entry of the demandant, while the action is pending. Marriage of a female demandant, Death ^ F. N. B. 219 ; 8 Co. 88. a j Booth, 152. 342 HEAL ACTIONS. [CH. VI. of a demandant, and the like. It will only be necessary, therefore, to refer to the remarks which were made in relation to pleas in abatement in a preceding chapter, where they are stated and explained at some length.* Pleas in bar to the action of Formedon are chiefly different from those which are applicable to writs of Entry, writs of Dower, and other real actions. But with regard lo two of them, non- tenure and disclaimer, the same remark may be repeated, which was made in relation to writs of Entry and writs of Dower f that though they were by the ancient practice allowed to be pleaded in abatement only, they may, according to the practice adopted in Massachusetts, be pleaded in bar, as well as in abatement, to the whole, or to any part of the tenements demanded.^ The plea of non dedit, or ne dona pas, (that the donor never made the supposed gift in tail,) is a good plea in bar to all the writs of Formedon ;^ and is considered the general issue. ^ There- fore if the demandant in a writ of Formedon in 1 Chap. IV. § 17, 18. 2 Ante, p. 220, 221, 305. 3 14 Mass. R. 239, Otis vs. Warren; 13 Mass. R. 439, Pres- cott vs. Hutchinson. * Rast. 363, b. pi. 7 ; Co. Ent. 322, b. 329, b ; Booth, 163; App. No. 89. 5 Com. D. Pleader, 3 E. 4 ; 5 Mass. R. 465, Dudley vs. fSiimner. SEC. v.] WRITS OF FORMEDON. 343 the descender counts upon a devise in tail to his ancestor, and a descent of the right to himself ; the tenant, if he would compel the demandant to prove his whole title, should plead non dedit, and not no7i devisavit. For though non devisavit is a good plea in bar, where the demandant claims under a devise ; yet, as it is not a general issue, the demandant, if he takes issue upon it, will be oblio^ed to prove only the point in issue, that the donor did devise, as alleged in the count. For this is considered so far a special plea, that the tenant by selecting this fact, and denying it, is deemed to have admitted the truth of all the other allegations, which are material and traversable.^ Another plea in bar, which occurs frequently in the old books, is the plea that some ancestor of the demandant made a feoffment of the demand- ed premises with warranty ; and that the demand- ant has assets, (that is other lands in fee simple of equal value,) by descent from the same ances- tor.^ Our common deed of conveyance with general warranty may be pleaded in bar in the same manner, with only a slight alteration in the language, to make it conformable to the words of conveyance in the deed.^ » 5 Mass R. 464, 465, Dudley vs. Sumner. 2 Booth, 163 ; Rast. 361, a. b. ^ App. No. 9], 344 REAL ACTIONS. [cH. VI. So also a deed of release or confirmation with general warranty, and assets by descent, may be pleaded in the same manner as a feoffment, with the exception only of the different phraseology of the instrument. These pleas must all be pleaded with ^ profert of the deed containing the warranty. And the most usual replications are, either a denial of assets by descent,* or a denial of the deed of ivarranty, by a common replication of 7ion est factum.^ But the demandant, instead of denying the deed, or the assets descended, may reply that nothing passed by the deed of the ancestor.^ The tenant may plead a fine in bar ; and the demandant may reply, qnod partes finis nihil hab- uerunt.^ A common recovery may also be plead- ed in bar to a writ of Formedon in remainder or reverter. In this case, however, there is a dis- tinction to be noticed. If the tenant W'as not seised of the estate tail at the time of the recovery, it must be pleaded as a recovery with double voucher. But if he ivas then seised, the recovery would be binding, though only with single voucher.^ These pleas, however, and several others which might 1 App. No. 91, a ; Rast. 361. a. pi. 3; 3G2, a. pi. 6. 2 Rast. 362, a. pi. 5. =* Rust. 361 , b. pi. 4. 4 Booth, 163; Co. Eat. 318, a. ^ Booth, 164 ; and soe 1 Co. 63, CapdVs case. SEC. v.] WRITS OF FORMEDON. 345 be noticed, are either foreign to our practice, or rendered obsolete by the changes which have taken place in the form of legal remedies. If the tenant found that the title of the demand- ant was clear and unquestionable, he generally appeared the first day, and entered his confession of the action upon the record, in order to avoid the amercement., to which he was liable when judgment was rendered against him after a verdict, and in some cases upon default. With regard to the proceedings subsequent to the pleadings and issue, it may be sufficient to say generally, that not only the voucher and the coun- terpleas to the voucher and to the ivarranty, but the trial also, and verdict in a writ of Formedon, were the same in the practice of the English courts, as in a writ of Entry.* The same remark may be applied to the judg- ment in this action, whether upon confession, de- fault, or verdict ; and whether against the tenant, the vouchee, or the demandaiit. The Habere facias seisinam also, as well as the judgment upon which it issued, was scarcely distinguishable in the Eng- lish practice from the same process in a writ of Entry ; and in the practice of our own courts the form is precisely the same. 1 Rast. 376, 378. 44 346 REAL ACTIONS. [CH. VI. In a preceding page,* some notice was taken of the difference between real and personal actions, as to the conclusiveness of the judgment in a for- mer action, upon the rights of the parties to the suit, and their representatives. But it is proper to add in this place the further remark, that in a Formedon in the descender^ if the demandant is barred by verdict or demurrer, still the heir in tail of the demandant may have a new Formedon in the descender. For the heir in tail does not claim the tenements by descent from his ancestor, but by force of the statute de donis, and according to the form of the gift. And the feint or false pleading of his ancestor shall not be permitted to prejudice the rights of the heir, unless the suit is conducted according to all the requisites of the formal proceedings in a common recovery. For if the judgment against the ancestor were allowed to bar the heir in tail, as it does the heir in fee simple, the rights of the issue would be entirely at the mercy of every tenant in tail.^ Sect. VI. The remedy by writ of Formedon has long been obsolete in England f and in this country it has been perhaps wholly confined to one section. In Massachusetts, while limitations 1 Ante, p. 81. 2 6 Co. 7, b, Ferrer's case ; Vin. Form. F. pi. 7. 3 3Bl.Com. 197. SEC. VI.] WRITS OF FORMEDON. 347 of estates tail were common, it was frequeiutly resorted to, as the most appropriate remedy for the heir in tail, or for those, who, after the determina- tion of the estate tail, claimed the remainder or reversion in fee. But since the statute of 1791, ch. 60, enabled tenants in tail in possession to bar their issue, and also all remainders and reversions limited after such estates, it is probable that every known estate tail has been converted into a fee simple. And that statute seems to have had the further effect, as has been before remarked,^ to put an end to what is denominated a discontinuance of the freehold^ in our law. It seems, therefore, that but few cases can hereafter occur, in which a party will find it necessary to assert his claim to real property in our courts, by a writ of Formedon in the descender, or in the reverter. The more extensive application of the writ of Formedon in the remainder, (which may be main- tained by any donee or devisee, who is entitled to a remainder, upon the determination of an estate for life, as well as in tail,) may still retain it in use. But the practice in the English courts, and in the courts of our own country, seems manifestly to shew, that there are very few cases, in which this remedy is strictly necessary, for the vindica- tion of the rights of any party. 1 Ante, p. 69j 70. 348 REAL ACTIONS. [CH. VI, The time of limitation for all the writs of FormedOn by our law, and by the law of England, has been already stated to be twenty years, after the right of the party accrued ; which the student will recollect is the same period within which an entry may be made. And as there is now no instance, in which the right of entry can be taken away by any of those conveyances which by the ancient law produced a discontinuance of the freehold, there can be hut few cases, in which a party may not first enter, and then commence his writ of Entry upon his own seisin, instead of resort- ing to his writ of Formedon. Perhaps the only case where a party may maintain a writ of Forme- don, who cannot first enter, and then bring his writ of Entry, is where the right of entry has been tolled, within the period of twenty years. And this may happen, where an abator, in- truder, or disseisor has entered and aliened the; property ; or died seised of it, whereby the inher- itance has been cast upon his heirs. For the cominon law would not suffer the alienees or heirs, even of those who acquired the seisin by wrong, to have their title defeated by the summary meth- od of an entry ; since, however wrongful the seisin of the grantor or ancestor might be, the alinee and the heir were regarded as coming in by title. SEC. VI.] WRITS OF FORMEDON. 349 But by the statute of 32 H. VIII. ch. 33, the heh' of the disseisor was deprived of this privilege, unless his ancestor had peaceable pos- session jive years after the disseisin, without either entry or claim.* And this restriction has been adopted, as a part of the common law of Massachusetts. It may not be useless to add, that there is one consideration in favour of adopting the remedy by an entry and action upon the demandant's own seisin, in the cases before referred to, in preference to the writ of Formedon. For the judgment in the latter action establishes the title, only from the date of the recovery ; consequently the demandant, after his recovery, can maintain no action for the mesne profits.^ But on the other hand, if he enters and then prosecutes his writ of Entry upon his own seisin, he may recover the mesne profits for the time that elapses between his entry and the final recovery of judgment. And this, in many cases of protracted litigation, may be a circum- stance of some importance. 1 Gilb. Ten. 21, 23 ; Co. Litt. 237, b. 238, a ; Ante, p. 64, 65. 2 12 Mass. R. 46, Fletcher vs. McFarlane. 350 REAL ACTIONS. [CH. VII. CHAPTER VII. Writs of Right, and the proceedings therein. The writ of right is considered the highest writ in the law. It is the last resort of him who has been ousted of real property ; and it lies only for the recovery of an estate in fee simple.* It is generally resorted to, either where the right to maintain a possessory action is barred by lapse of time ; or where such an action having been brought, judgment has been given therein against the de- mandant. But though this remedy is not often applied, where the demandant may have his writ of Entry ; yet it should be understood that it is a concurrent remedy with those writs ; and may be brought, not only where the demandant might maintain a possessory action, but generally, even where he has a right of entry. In these cases, however, writs of Entry are usually resorted to, partly because the proceedings and trial, even in our practice, are somewhat more simple and summary ; but chiefly, that the demandant, (if by any unfore- seen occurrence he should have a verdict against 1 Co. Litt. 326, b; Co. 2 kst. 291. SEC. I.] WRITS OF RIGHT. 351 him in a possessory action,) might have this final remedy in reserve. Besides the proper, or mere writ of Right, (which it has been ah'eady stated lies only for the recovery of lands in fee simple, wrongfully with- held from the owner ;) there were also in the an- cient law several other writs, which were said to be m the nature of writs of Right. In some of these writs, lands were not demanded ; but only incorporeal hereditaments. In others, though lands were demanded, it was not the fee simple. Several of these have been already noticed at some length ; as writs of Formedon, and the writ of right of Dower. Some others have been only incidentally referred to in the preceding pages. They may all be found in the Register,^ Fitzherberty^ and Booth.^ But nearly all of them are so foreign and different from every thing connected with our practice, that it would be of little use to the stu- dent to encumber our pages with an account of them. At an early period of the English law, this writ was brought only in the court Baron, from whence the demandant might remove it to the County court, by the writ of Tolt, and from that court by writ o^ Pone to the court of Commonpleas. 1 Reg. 1, 3, 4. 2 F. N. B. J, 6, 9, 10, 11. 3 Booth. 86, 87, 352 REAL ACTIONS. [CH. VII. The tenant also might remove it directly to the court of Common Pleas, without first carrying it to the County court. At a later period, when many lords discontin- ued the practice of holding courts, the demandant was permitted to commence his writ of Right in the Common pleas, that there might not be a failure of justice. But in order to entitle himself to pursue that course, it was necessary to insert a suggestion in his writ, that the lord of the manor had remit- ted his court to the king. And it was from this suggestion that the writ was denominated a writ of Right, Quia dominus remisit curiam. This proceeding soon gave rise to a fiction, by which the demandant was permitted to suggest in his writ, that his lord had given up his court to the king, though in truth he had not. And the court of Common pleas, that it might retain orig- inal jurisdiction in this case, found it necessary to determine, that this suggestion in the writ should not be traversed. The writ of Right, when brought in the lord's court, was always a writ of Right patent ; and was directed to the lord of the manor, if he was within the realm. But if the lord was absent from the kingdom, it was directed to his bailiff.^ This writ, when sued forth by the demandant, was brought 1 Reg. p. 1. SEC. I.] WRITS OF RIGHT. OOO by him to the steward of the court of the manor, of which the land in question was held, and there delivered to him in open court. And it is men- tioned as a cucumstRixce peculiar to this writ, that after the demandant has given pledges to prosecute his demand, and the steward has made an entry of it upon the proceeding of the court, the writ is re-delivered to the demandant with whom it afterwards remains * But when the lands were held of the king in chief, the action was never commenced in the court Baron ; but the writ was directed to the sheriff, and made returnable into the Common pleas. This writ, after describing the lands demanded, usually contained the clause " which he holds of us in chief." But this suggestion, like that before mentioned, being inserted to give jurisdiction to the court of Common pleas, without regard to the the truth of the allegation, was not allowed to be traversed. In the modern practice, the general writ of Right is commenced in the Common pleas, and the suggestion, that the lord of the manor has given up his court to the king, is now, it is said, generally omitted. But the writ still retains its ancient name, and is usually called a writ of Right close, Quia dominus remisit curiam.^ 1 Booth, 88. 2 2 Saund. 44, n. 4. 45 354 REAL ACTIONS. [CH. VII. According to the present practice in England, where the writ of Right has been much more fre- quently resorted to within a few years past, than for a considerable preceding period, the first step is to make out a prcecipe for the writ in this form. Middlesex to wit. Command A. that justly and without delay he render to B. and M. his wife, one messuage, two gardens, and twenty acres of land with the appurtenances, in the parish of C, in Middlesex, which they claim to be the right and inheritance of the said M. Returnable in eight days of St. Hilanj.'''' Upon receiving this, the cursitor makes out the writ, the form of which may be seen in the case of Tyssen vs. Clarke, in Wilson^s Reports.* The proceedings being thus commenced by the suing out of the original writ, the next step to be taken by the demandant is to have the tenant summoned ; and this should regularly be done upon the land. But according to modern usage, no actual summoning of the tenant ever takes place, either in this or in any other real action ; though the sheriff still continues the formality of returning the names of the supposed summoners upon the writ. These proceedings, and the proclamation at the door ( f the church, the issuing the Grand cape, 1 3 Wils. 558. SEC. I.] WRITS OF RIGHT. 355 upon the default of the tenant, the waging his law of non- summons, or excusing his default, with the subsequent process of attachment and distrin- gas have been before explained,^ and need not be here repeated. The same remark may be ap- plied to the subject of essoins and other dilatory proceedings in the English practice, most of which are retained at the present day.^ According to the present practice, the demand- ant does not count until after the tenant has ap- peared, either at the return of the writ, the adjourn- ment day of the essoin, or (where the tenant has made default on that day,) on the return of the Grand Cape. But the tenant may always pray a vieio of the tenements, before the demandant has counted, if he sees fit.^ If no view is prayed by the tenant, the demand- ant next proceeds to file his count, the form of which may be seen in the case before referred to, and in other books. ^ In the proceedings subsequent to the count, most of the incidents, which were formerly men- tioned as applicable to real actions generally, will be found to be still retained in the modern prac- 1 Ante, p. 89, 90, 91. 2 ggg ^nte, p. 94, &c, 3 Wiiles 344, Davis vs. Lees. 4 3 Wils. 561 ; 2 Saund. 45, note ; 3 Chit. PI. G39, &c. Rast. 241,b; 246, a. 556 REAL ACTIONS. [CH. VII. tice in writs of Right. ^ These proceedings the student will see, are somewhat shorter than they were in ancient times. But they are still liable to the reproach of usless prolixity, vexatious delay, and unnecessary expense to the suitors. In the practice of this department of the law in Massachusetts, only one of the ancient writs of Right, (as we have already hinted,^) has been found necessary for the purposes of remedial justice. And there have not been wanting those, whose opinions are entitled to great respect, by whom the justice and policy of continuing even this rem- edy, (or at least of allowing a party who has been cast in the trial of a writ of Entry, to review his cause by way of commencing a writ of Right,) has been thought very questionable. Experience, however, seems to show, that no great increase of litigation has arisen from this source ; and perhaps a more full examination of the subject will scarcely fail to produce the impression, that more would he lost than gained, by abolishing this ancient institution of the common law. It may be here remarked, that the general writ of Right which has been adopted in our practice is considered a writ of Right close.^ And so far as the distinctions between that writ, and 1 See 2 Saund. 45, b. c. d. note ; 3 Chit. PI. 635, &c. 2 Ante, p. 1 40. ^ 2 Wheat. 307, Liter vs. Green. SEC. II.] WRITS OF RIGHT. 357 the lorit of Right patent^ are applicable to our proceedings, it may be proper to regard \\\e former in the light o{ precedents, rather than the latter. Sect. II. The general or proper writ of RIGHT, according to the doctrines of the ancient common law, lies, as we have seen, only for the recovery of the inheritance iiifee simple, unjust- ly withheld from the rightful proprietor.^ And the requisites in order to enable him to main- tain the action are concisely summed up in the demandant's count, in which he alleges that either he or his ancestor was seised of the tenements demanded in the writ, " in his demesne as of fee and right," in dominico suo ut de fcedo et jure. For, according to Bracton, it was not sufficient to allege a seisin in dominico suo, without adding ut de fcedo et jure. For it ought to appear by the demandant's count, that the inheritance had been held by his ancestor or himself, not in servi- tio, or jure possessionis ; but that the title com- bined the jus possessionis with the jus proprieta- tis, generally denominated jus duplex, or droit, droit.^ The writ of R]ght, like other real actions, must be brought against him who has the freehold. For whenever the inheritance, or even a freehold 1 See Co. Litt. 326, b; Co. 2 Inst. 291. 2 Brae. Lib. v. c. 5, § 2. 358 REAL ACTIONS. [cH. VII. is demanded against him who is not tenant of the freehold, he may abate the demandant's writ, as we have before seen,^ by the exception of non- tenure. In order to maintain this action, the demand- ant must allege and prove an actual seisin, either in himself OY his ancestor, within the time limited by the law. Consequently, 7io purchaser can prevail, without showing an actual seisin in him- self The seisin of his grantor or devisor is of no avail : for the seisin of the ancestor required in a writ of Right, means a seisin of that person from ivhom. the estate came to the demandant by descent.^ Thus where an estate was devised to A. for life, remainder to B. in fee ; and B. died in the lifetime of A. so that he had only a vested remainder, but was never actually seised, and his heir brought a writ of right. It was held that the action could not be maintained in cmy form ; because neither B. nor the demandant was ever actually seised of the land.^ It has been already stated that the writ of Right is a remedy which lies concurrently with all other real actions, by which an estate in fee simple may be recovered. And therefore this remedy is seldom resorted to where those actions 1 Ante, p. 207. 2 Co. Litt. 293, a. =» 1 H. Black. 1, Dally vs. King. SEC. II.] WRITS OF RIGHT. 359 can be maintained. The cases in which a writ of Right may be brought, where the demandant would be barred of his ivrit of Entry are only two ; and they have been before alluded to. They are where judgment has been rendered against the demandant in a writ of Entry between the same parties ; or the time for bringing such an action has elapsed. 1. As to the effect of a judgment against the DEMANDANT in a former action, the ancient common law is the law of Massachusetts at the present day. And by that law, if the owners of particu- lar estates of freehold, (whether tenants in dower, by the curtesy, or other tenants /or life or in tail,) had judgment against them in a possessory action upon their no7i-appearance or default, they were absolutely without remedy ; because not having an estate in fee simple, they could not maintain a writ of Right. ^ To remove this hardship, the statute of Westminster 2,^ provided a remedy for such persons, after their lands had been recovered against themhy default. This remedy was by a writ denominated a Quod ei deforciat ; which, though not strictly a writ of Right, was so far in the nature of a writ of Right, that it enabled those who had been unwarily deforced of their estates by default, to recover and restore them. And 1 Finch, 82, b. 213 Ewd. 1. c. 4. 360 REAL ACTIONS. [CH. VII. this remedy it seems was allowed, even after a default in writ of Right, in the court Baron.* But it did not extend to those cases, where there was a recovery after appearance and defence, in a possessory action. Such a recovery, therefore, was always conclusive with regard to all those estates of freehold, for which no writ of Right could be maintained. And hence we may remark, the conclusiveness of a common recovery upon those rights. For that proceeding is only a judg- ment upon a writ of Entry in the post, not ren- dered upon a default of the tenant, but after a defence, and the voucher of a third person to war- ranty. The writ of Quod ei deforciat was probably never introduced into our practice : but a sufficient substitute seems to be provided by the authority given to our courts to grant reviews, whenever substantial justice may require it.^ If the right to the possession of the fee simple has been lost, by judgment against the rightful owner in a possessory action, he may still resort to this ultimum refugium, as lord Coke calls it. And it is of so high and forcible a nature, that, (in the language of Black^tone,) it overcomes all obstacles, and clears all objections, that may have 1 F. N. B. 155. 2 Stat. 1791, ch. 17 ; 1820, ch. 53. SEC. II.] WRITS OF RIGHT. 361 arisen to cloud and obscure the title. ^ And after issue is once joined in a writ of Right, the judg- ment is absolutely final ; so that a recovery had in this action may be pleaded in bar of any other claim or demand.^ 2. With regard to the limitation of a writ OF right, it may be remarked, that the ancient provisions of the law of England^ having reference to the reign of a particular king, were continually changing with the efflux of time. In the time of Glanville, the demandant was required to allege a seisin in his ancestor or himself, in the reign of Henry the First.^ By the statute of Merton,^ it was changed to the time of Henry the Second ; by the statute of Westminster 1,^ to the time of Richard the First. And finally by the 32 H. Vni. c. 2, it was put upon a permanent footing, by requiring a seisin to be alleged within sixty years. In Massachusetts^ the limitation of writs of Right has undergone some change. By the stat- ute of 1786, ch. 13, in conformity to the law of England^ it was fixed at sixty years. But by a subsequent statute,^ the utmost time, after which a writ of right may be now maintained, is restrict- 1 3 BI. Com. 194. 2 p. N. B. 6 ; Co. Litt. 158. 3 Gianv. L. ii. c. 3. ^ qq H. Ill, c. 8. 3 Edw. I. c. 39. 6 1807. ch. 75, § 1, 46 362 REAL ACTIONS. [CH. Vlf. ed io forty years. It follows, therefore, that by our law the uninterrupted seisin and possession of lands in fee simple, for the space of forty years, gives a complete and unimpeachable title against all the world, which can neither be disturbed or drawn in question, by any dormant claim that may afterwards arise. Sect. III. The count in a writ of Right in the English courts and in our own, is very nearly the same, as in a writ of Entry in the Quibus. The chief difference, (except as to the time of the seisin,) is that the writ of Right omits the allega- tion of a disseisin in the introductory part of the count, and after the clause, which he claims to be his right and inheritance, adds the words " by writ of our said lord the Icing of right,'''' which words are not contained in the count in a writ of Entry. And at the close of the count, it omits the clause in the writ of Entry, " a7id the said A, still unjustly withholds the same ;" or rather it contains, in the place of that clause, the words, " and that such is his right he offers, ^c."** 1 2 Saund. 45, n ; 3 Chit. PI. 639 ; Rast. 246. * This conclusion of the count was in the ancient law an offer to maintain or prove the claim of the demandant, either by the duel, or before the Grand assise. The whole sentence was thus. Et quod tale sit jus simm, offcrt disrationare per corpus ./. liheri lioniinis sui, vel alio modo, sicut curia considei-a- verit. Bract, lib. v. c. 5, § 1. In the SEC. III.] WRITS OF RIGHT. SG3 According to our form, the last clause is gener- ally and very properly omitted ; and the former clause is only " which he claims to be his right and inheritance, hy our writ of Right. '^^ If the action is by husband and wife, in her right, the form is varied in the same manner as in a writ of Entry.^ It should be remarked, however, that though it is usual and proper in a ivrit of Entry, to allege that the demandant, or his ancestor on whose " App. No. 97. 2 App. No. 98. In the time of Glanville, the conclusion was thus. Et Jioc paratus sum probare, per hunc Uherum meum homtnem J. qui hoc vidit vel audivit. Sometimes it was more at large, thus. Et hoc paratus sum probare, per hunc liberum meum homiuem J, cui pater suus injunxit in extremis agens, in fide qua filius tenetur patri, quod si aliquando loquelam de terra ilia audiret, hoc disrationare, sicut id quod pater suus vidit et audivat. Clanv. Lib. ii. c. 3. By the ancient law, the champion of the demandant was required to be summons, or at his election, a Habeas corpora miatuor militum, in the alternative, as in the writ of summons/ It was at one time doubted whether a writ of Right could be tried at the assises, or any where but at the bar of the court of Common Pleas. ^ But there does not appear to have been any good grounds for the doubt ; and the practice has been of late years established beyond question. If there are not four knights in the county, the sheriff is to return other persons. But accord- ing to Dalton, they shall be returned as knights, and come to the bar with their swords.^ And lord Coke says, that when the knights come to the bar, they cannot be challenged, though the other twelve jurors may be.^ When the recognitors appear, the oath, which may be seen in Littleton,^ is administered to six- teen, after the challenges are disposed of. But in one case it is said that this oath was adminis- 1 See 3 Wils. 359 : 3 Chit. PI. 636 ; 2 Saund. 45, e. n. 2 2 Bl. 1261, 1293, Luke vs. Harris. 3 Dalt. Sheriff, 64. ^ Co. Litt. 294, a. * Litt. § 514; 3 Wils. 561. *SEC. v.] WRITS OF RIGHT. 377 tered'only to the four knights, " and the rest of the jurors were sworn generally, as in other actions."^ Generally much time is consumed after the first summoning of the knights, by the several writs of summons and other process before mentioned. So that by the previous delays arising from essoins, aid-prayers, and vouchers, in the earlier stages of the cause, with the time consumed in the manner just stated, in forming and completing the panel of the grand assise, the tenant in the EngUr.k courts may generally put off the trial, even for years, if he does riot succeed, (as often happens, from the technical objections allowed in this action,) in wholly defeating the claim of the demandant.^ When the grand assise appears and is sworn, the tenant first gives his eviderite ;* and the reason ^ 3 Leon. 162, Heidon vs. Ibgrave. .# 2 See 2 Bos. & Pul. 570, Dowland vs. Slade ; 5 East. 272, S. C; 3 Bos. & Pul. 453, Dnmsday vs. Hughes; 1 Taunt. 415, Pearson vs. Maynard. * la a copy of Booth, which the author has, there is the following MS. note by the late Mr. Baron Hotham, (to whom it formerly belonged,) in p. 98, referring to the remark in the text, that the tenant shall first begin his evidence in a tvrit of Right. " So held by me on the trial of a writ of Right at Ex- eter in the Spring 1780, wherein one Luke was the demandant, and Honor Harris the tenant. But the demandant, (who had no counsel, and who was apprised by me of the advantage he was giving his adversary, by going first into his title,) pressing to begin, I suffered him to begin." (H.) 48 378 REAL ACTIONS. [CH. VIlJ assigned is, that tlie mise is first prayed for and joined bj him, as by a demandant in other real actions.^ But it is said, that if the tenant tenders the demy-mark in court at the time of the trial, the demandant must then begin. ^^ It was remarked in a preceding page, that when an issue arose upon some collateral point in a writ of Right, the trial was had before a common jury, as in other real actions. With 1 Booth, 98 ; 3 Leon. 162, Heidon vs. Ibgrave. 2 Booth, 98 ; Litt. § 514; Co. Litt. 294, b. * The tender of the demy-mariv, as it is called, has long been a " stumbling block" with lawyers. Mr. Reeves gives from Bractoii^ the following account of this proceeding. " If his ancestor happened not to be seised in the time of the king mentioned in the writ, although he was seised in another king's reign, yet the demandant might perhaps fail through this errcy, the same as if lie had never been seised at all. But the issue to be tried by the great assise being, which of the parties had most right ; the king's time did not properly come within the consideration of the recognitors; and the right between the parties might be decided with justice in favour of the demandant, although he had failed in the time of seisin mentioned in his count : when, therefore, the demandant had put himself on the great assise, and the tenant had suspiciou that the ancestor was not really seised at the time mentioned in the count ; as perhaps he was not born, or was dead at the time ; he used to pray that the time of seisin might be inquir- ed of by the recognitors ; and to obtain the favour of this ex- traordinary inquiry, it was the practice for the tenant to give something, dare de suo^ as Bracton calls it ; this being, probably, SEC. v.] WRITS OF RIGHT. 379 regard to this mode of trial, therefore, no further remarks seem to be required. The practice in the courts of New York in relation to this action, is established upon the English model. The four persons who are there appointed to represent the four knights, are sev- erally sworn " lawfully and truly to choose, in the presence of the parties, in addition to them- selves, tiventy other good and lawful men of the county, who best know and will declare the truth between the parties, to make recognition of the grand assise. And the qualifications of the recog- nitors, as well as some of the grounds of challenge, are also prescribed by statute.^ The subsequent 1 1 Rev. L. 43. a remnant of the old custom of putting justice to sale ; an abuse which was long permitted and made a gain of by our kings, and was at last provided against by a clause in the famous chapter of the great charter." Blr. Reeves and other legal antiquarians have regretted that Bracton, who has opened and explained so many secrets of ancient jurisprudence, should not have been more explicit and unambiguous with regard to this particular. Brae. lib. v. c. 5. § 3 ; 1 Reeves' Hist. 429 ; Booth, 98. The tender of the dcmy-^mark was generally subjoined by the tenant to the joinder of the mise upon the mere right ; and not only the form is still retained in some modievn English pre- cedents, but it is said the practice is to tender the money at the trial. See 3 Chit. PI. 653, 654. It is scarcely necessary to add, that nothing of this nature is known in our practice. 380 REAL ACTIONS. [CH. VII. proceedinss are also in a great measure conforma- ble to the practice of the English courts. In Massachusetts no tribunal has been estab- lished in imitation of the grand assise. The same process is used in commencing a writ of Entrj and a writ of Ri^ht. The qualifications of the jurors are the same, and they are impanelled and sworn in the same manner. Indeed every part of the trial is conducted as in other real actions, with the single exception, that when the mise is joined upon the mere right, the tenant first gives his title in evidence, according to the ancient prac- tice ; unless the demandant waives that privilege, which he often does, that he may have the advant- age of dosing the argument. Sect. VI. As to the evidence in a writ of Right, it has been already stated,^ that where the mise is joined upon the mere right, the demand- ant, in order to maintain his action, must prove an actual seisin in himself, or the ancestor named in his count, from whom the inheritance came to him by descent.^ For though the tenant, as we have seen,' may deny the seisin oj the demand- ant by a special plea : yet, it seems that a\ jiere the mise is joined upon the mere right, if the de- mandant does not prove the seisin of his ancestor, 1 Ante, p.' 358. « Co. Litl. 293, a ; 1 H. Black. 1 1 Dully vs. King, 9 Ante, p. 371. SEC. VI.] WRITS OF RIGHT. 381 and ivithin the time mentioned in his count, the tenant will be entitled to a verdict.^* But the stu-f'^^ ^^ should bear in mind that evidence of seisin in a writ of Right, as well as in other real actions, need not in all cases be established by an actual pedis positio.^ For taking of esplees is but evidence of seisin ; and a seisin in deed being once established, either by an actual entry upon the land, or by construction of law, the taking of the esplees follows as a necessary inference of law. And this is the doctrine of Bracton.\ Therefore where lands are in lease for years, there may be a tenancy by the curtesy, without an entry, or 1 See 6 Mass. R. 336, Netahall vs. Hopkins ; 1 H. Black. 1, Dally vs. King. 2 Ante, p. 194. * la the copy of Booth before mentioned, [ante, p. 377, note *] there is the following note of Baron Hotham, referring to the statement, (page 98,) that if the grand assise^ after the TENDER OF THE DEMV-MARK,^/!^ not thc seisin, US it is alleged, they ought not to inquire any further of the right. " So held also by me in the above case. And the demandant not being able to prove the seisin of his ancestor, as he had alleged in his count, 1 directed the jury to find for the tenant. Luke after- wards moved the Pommon Pleas for a new trial, on the ground, of this being a misdirection in me ; but it was refused per Curiam.'' (H.) t Poterit enim quis habere liberum tenementum ex traditio- ne, quamvis statim non utatur, nee expletia capiantur, quia nsus et expletia non multitm operantur ad donaiionem ; valent tamea multotiens ad possessionis declarationem, et dici poterunt ves timentadonationis. Brae. lib. ii. c. 18, § 2, fol. 40. fM2 REAI* ACTIONS. [CH. VII. even the receipt of rent ; and jet curtesy depends wpon actual seisin.* So where lands are granted by letters patent, no livery of seisin was ever necessary to perfect the title. For the grantee in such case takes by matter of record ; and the law deems a grant of record to be of equal notoriety with an actual delivery of the seisin in the presence of the vicinage. It is expressly held in Bar wick'' s case, 5 Co. 94, that letters patent do not convey a mere sei- sin in law, (like the estate which the heir has by descent before entry,) but a livery in laiv ; that is, such a livery as confers a constructive actual seisin of the land. It is upon the same principle, that if a feoff- ment Vy'as made of divers parcels of land in the same county, livery of seisin of one parcel, in the name of the whole, was always held to confer a seisin of all the parcels, where they were not at the time held by an adverse seisin. In like man- ner, if a grantee or heir, of several parcels of land in the same county, enter upon one parcel in the name of the whole, where there is no conflicting possession, the law deems him to be in the actual seisin 0/ the whole. The same doctrine applies to what is denominated a possessio fratris, and to the making of livery ivithin view, or claiming ^ 8 Cranch. 2 IG, Green vs. Liter. Sec, VI.] WRITS OF right. 383 lands, held adversely by another, where the right- ful owner cannot enter, for fear of bodily harm.' Generally a conveyance of waste and vacant lands gives a constructive actual seisin thereof to the grantee, without entry, so as to enable him to maintain a writ of Right. And if a man enter into lands having title, his seisin is not limited to his actual occupancy ; but shall be deemed co-ex- tensive with his title. Therefore if a person hav- ing title to lands in possession of one tenant, enter into any part, in the name of the ivhole, he will be adjudged to be in the seisin of the Vvhole, notwith- standing an adverse seisin thereof by the tenant. But if several tenants are in the seisin of distinct parcels, claiming to hold in severalty, there must be an entry into some part of the parcel held by each tenant. Upon the same principle, an entry into a parcel which is vacant, in the name of the whole, will not regain the seisin of a parcel that is in an adverse seisin. But an entry into the parcel which is in an adverse seisin, in the name of the whole, will enure as an entry into the other part also.^ Where tiDO persons are at the same time in possession of the same land by different titles, the law adjudges him to have the seisin, who has the better title. For there may be a concurrent ^ 8 Cran. 247,, Green vs. Liter. ~ Ibid. 250. 384 REAL ACTIONS. [cH. VII, possession, though there cannot be a concurrent seisin ; and therefore the seisin shall follow the better title. And where different portions of the same lands are claimed under diiferent titles, and each party claims seisin and possession to the extent of his title, in virtue of actual seisin of a part, the law adjudges the seisin of the unoccupied part to him who has the better title. Consequently the dis- seisin of him who has the better title, by hi>n who has the inferior title, does not extend beyond the limits of the occupany of the latter} As the writ of Right draws in question only the mere rights of the parties to the suit, the tenant cannot defend himself, by shewing a better subsisting title than that of the demandant, in some third person.^ If the demandant release to the tenant after the commencement of the action, this need not be pleaded fids darrein continuance, but may be given in evidence, in a writ of Right, notwithstand- ing the rule that the cause is to be tried, accord- ing to the situation of the parties at the time it was commenced.^ 1 4 Wheat. 113, Barr vs. Gratz: 3 Mass. R. 215, Langdon ys. Potter ; 10 Mass. R. 146, Codman ys. Winslow. * 8 Cran. 250, Green vs. Liter. 3 10 Mass. R. 134, Poor vs. Robinson. SEC. VII.] WRITS OF RIGHT. 385 On the trial of a writ of Right, proof of |>os- session of the lands, and pernancy of the rents and profits, were held to be prima facie evidence of a seisin in fee. But proof on the other side of forty years'' subsequent possession by a daughter, while the son and heir lived near, and well knew the fact, was considered much stronger evidence, that the first possessor had only a particular estate} And this decision is founded upon the principle referred to in a former chapter,^ that every person shall be presumed to act conformably to his rights and duties, until the contrary is made to appear. Sect. VII. The verdict in a writ of Right should of course conform to the issue submitted to the jury, as in other actions. When the 7nise is joined upon the mere right, the verdict for tJie demandant generally finds, " that the said B. hath more mere right to have the said tenements with the appurtenances to him and his heirs, as he hath above demanded the same, than the said A. to hold the same, as he now holdeth them ; as the said B. by his aforesaid writ hath above supposed." If for the tenant, it is " that the said A. hath more mere right to hold the said tenements with the appurtenances, to him and his heirs, as he now ' 5 Taunt. 326, Jayne vs. Price ; 1 Marsh. 68, S. S. 2 Ante, p. 239. 49 386 REAL ACTIONS. [CH. Vll. holdetli the same, than the said B. to have them, as he hath demanded the same by his aforesaid writ.^ Sometimes the form is that the demandant or tenant hath greater title, instead of more mere right, to hold, &c.^ Where several tenants, who are sued jointly, neglect to plead several-tenure to the writ, but join the mise severally, as to the tenements, held by them respectively, parcel of the demanded premises ; the verdict, if for the demandant, may be geiieral, that he hath more mere right to have the same, than the tenants ; and if for the tenants, as to any of the parcels held by them, that they have more mere right to hold the same, than the demandant.^ In the trial of the issue upon the mere right, much must of necessity be left to the assise ov jury. And this may be the reason for providing a more numerous, as well as a more select panel for the decision of this question, than for others of less importance and difficulty. But it can scarcely be doubted, that the chief reason for providing such a tribunal as the grand assise, and especially for giving it the martial and imposing appearance which it assumed, must have been in compliance with the taste and character of the age, and with > Booth, 105, 106. 2 See 3 Chit. PI. 666 ; 3 Wils. 563. " 8 Cran. 250. Green vs. Liter. SEC. VII.] WRITS OF RIGHT. 387 a view to induce the suitors to waive their riglit to a trial by battle. After the mise was joined upon the mere right, the verdict of the jury, (even though given upon another point,) was conclusive upon the rights of the parties. And if the tenant suffered a default, or the demandant became nonsuit, it was equally peremptory and conclusive.^ The FINAL JUDGMENT in a writ of Right, in favour of the demandant, whether upon a verdict, or the default of the tenant, is in this form. " Therefore it is considered that the said B. recov- er his seisin against the said A. of the tenements aforesaid, with the appurtenances, to hold to him and his heirs, quit of the said A. and his heirs for- ever." For the tenant it is thus. " Therefore it is considered that the said B. take nothing by his writ ; and that the said A. go thereof without day : and that the said A. hold the tenements aforesaid with the appurtenances to him and his heirs, quit of the said B. and his heirs forever."^ When the action is either by or against husband and wife, in her right, the last clause of the judg- ment is thus. " And that the said B. and M. his wife hold the tenements aforesaid with the appur- 1 Co. Litt. 295, a ; Booth, 101 ; 2 Saund. 45, f. n. 2 See 3 Wils. 563 ; 3 Chit. PI. 667 ; 2 Saund. 45, f. g. note. 388 REAL ACTIONS. [CH. VII. tcnances to them the salcl B. and M. and to the heirs of the said M. quit of the said A. forever." At the common law, there were no costs in any real action. And as no damages are recover- ed in these actions, neither the demandant nor the tenant is entitled to costs in a writ of Right, in England, bv the statute of Gloucester, or any other statute.* In Massachusetts, the law is the same with regard to corts in real as in per- sonal actions ; the statute of 1784, ch. 28, ^ 9, liaving provided that in all actions, the party pre- vailing shall be entitled to his legal costs against the other. After judgment for the demandant, a writ of EXECUTION issues, denominated a Habere facias seisinam, in the form and manner already explain- ed in treating of writs of Entry. ^ This writ being executed by the sheriff's delivering seisin of the tenements recovered, to the demandant, and the writ being returned and filed with the clerk of the court from whence it issued, the title of the de- mandant is now finally established by the highest sanction which the law can give. 1 10 Co. 116, Pilford's case. ~ Ante, p. 245. ■SEC. I.] MESNE PROFITS. 389 CHAPTER VIII. Action of Trespass for Mesne Profits. Sect I. It has been mentionedin a former chapter,^ that although the demandant, according to the modern practice, can recover no damages in a writ of Entry, yet he is not in all cases without remedy for the injury he may have sustained, in consequence of being deprived of the use of his property by the tenant. For if, at the time he commenced his writ of Entry, he had a legal right of Entry into the land in question ; he may, after he has recovered judgment for his seisin, maintain an action of trespass for the disseisin, or as it is more usually called, the mesne profits. It is important therefore to explain to the stu- dent the nature and application of this supplemen- tary remedy, though it does not strictly constitute a part of the law of real actions. Besides, the ancient law upon this subject has undergone a remarkable change, which will render the brief inquiry which it is proposed to make in relation to it, the more interesting to the inquisitive student. 1 See Ante, p. 244, 215. S90 REAL ACTIONS. [CH. VIII. Before the statute of Marlbridge,^ and of Glou- cester,^ no damages were recoverable in any real action, but Assise of novel disseisin. And even in the Assise, damages could be recovered only against the disseisor. In consequence of this restriction, the object of the law was almost en- tirely evaded. For, in order to deprive the dissei- see of the damages, it became a common practice for persons ivho were poor to commit disseisins, and to make feoffments to others, who might hold the estate without being answerable to the dissei- see in damages. When the disseisee recovered judgment, he often found his remedy fruitless ; for the disseisor was now out of possession, and had nothing whereby the damages could be satisfied. The statute of Gloucester therefore provided, that the tenant should be liable to the disseisee for the damages, if the disseisor was unable to sat- isfy them. But it seems to have been necessary for the disseisee to allege, either in his writ, or by some suggestion upon the record before the judg- ment was rendered, that the disseisor had nothing by which the damages could be satisfied. In con- struing the statute, it was held that the damages should still be recovered against the disseisor, if he was able to satisfy them. If he was unable 1 52 H. Ill, c. 16. 2 6 Edw. I. c. 1. SEC. I.] MESNE PROFITS. 391 to satisfy but a part of the damages, the tenant should be answerable for the residue. But he was not to be liable for any damages anterior to the time betook the possession and profits.^ The statute of Gloucester not only gave dama- ges in the Avrit of Assise, against the tenant as well as the disseisor. It extended the remedy to sev- eral possessory ancestrel writs, as Morfdancestor, Jyely Besayel, and Cosinage ; and also to writs of Entry upon a disseisin or intrusion. In the ancestrel writs, damages were recover- able, only from the death of the immediate an- cestor, from whom the right descended to the demandant. But in writs of Entry, (whether against an abator, intruder, or disseisor, or against their heirs or grantees,) the damages were recov- ered from the time of the disseisin, to the time of the inquisition or verdict ; and not merely to the commencement of the suit, as in most personal actions. For the land was regarded as the princi- pal object of the suit ; and the damages only as accessory, like the interest of money, in an action of debt. In writs of Entry, the whole damages were recovered against the tenant, though there might have been several intermediate tenants between him and the disseisor. If the action was against 1 Co. 2 Inst. 284. 592 REAL ACTIONS. [CH. VIII. the alienee of the disseisor, damages could be recovered, only where it was brought by the dis- seisee. When the demandant was heir of the disseisee, though he might recover his seisin in a writ of Entry in the per, the per and cui, and the POST, against the alienee of the disseisor, he could recover no damages. But against the disseisor, the heir of the disseisee might recover damages with his seisin. The damages, however, which the /iezr was entitled to recover, even against the dis- seisor, (as in the ancestrel actions before mention- ed,) were to be estimated only from the death of the ancestor ; for the heir could have no claim to damages, before the right was cast upon him by the descent.-' It is proper to remark, however, that the statute of Gloucester subjected the tenant to damages in a writ of Entry, only ichen he had the seisin by his own act or consent. If the seisin was thrown upon him by act of law, without any act or default of his own, he mioht shew the special matter by his plea, and thus protect himself IVom liability to damages. Thus, though the alienee would be liable to damages, because he 'acquired the seisin by his own act : yet if he died, and the seisin was cast upon his heir, who refused to enter and take the 1 Co. 2 Inst. 286. SEC. I.] MESNE PROFITS. 393 profits, he might plead this matter in excuse, and thus protect himself from liability for the damages. So if the disseisor made a deed of feoifment to A. and B. and livery and seisin to A. only, in the name of both, (B. never having agreed to the feoffment, nor taken the profits of the land ;) if A. died, so that the seisin was cast upon B. as sur- vivor, against whom a writ of Entry in the per was brought, B. might plead the special matter, and thus excuse himself from damages.^ With regard to the nature and extent of the damages, and the manner in which they were to be estimated, the statute of Gloucester made no change ; but only gave the demandant costs, in addition to his damages. It is to Br acton, there- fore, that we are to refer for information upon this subject ; and his statement of the ancient law upon this point, will be found to be very full and satis- factory. A brief shetch of it, however, will be all that is necessary for our present purpose. The jurors were diligently to enquire what profits the disseisor had received, in fruits, corn, rents, and other commodities. They were also to estimate the advantages the disseisee might have derived from the estate, if he had not been disseis- ed. The disseisor was liable, not only for what he had disposed of, or appropriated to his own ■1 Co. 2 Ins. 286, 287. 50 394 REAL ACTIONS. [cH. VIII* use ; but for whatever had perished or been des- troyed by accident. If the beasts died after the disseisin, says Bracton, the disseisor should be answerable for them ; for though he might thereby suffer damage, that was not to be imputed to the disseisee. And if the buildings were consumed by fire, after the disseisin, the price, he observes, ought to be restored by the Assise, because the disseisor was answerable, even for accidental losses.^ The damages assesed by the jury, might be reduced by the judges, if they were excessive ; but they were never to be increased by them, unless they had certain knowledge that they were as- sessed at a less sum than was right. In that case they might increase them. For it would be very wrong, says Bracton, that the disseisor should make profit to himself, by the injury he did to another. And he adds a remark, which explains the occasion of passing the statute of Gloucester, " That there were many barons and other great men, who often committed disseisins, which they would not have done, but for the hope of lucre. For when they had taken the issues and profits of the land for a long time, amounting to a large sum, they expected to escape with a^ mall amercement^ and save the residue to themselves ; because the 1 Biac. lib. iv. c. 19, § 9. SEC. I.] MESNE PROFITS. 395 jurors, when they awarded the recovery of the tenements against the disseisors, were very often unwilling to assess heavy damages against them, hoping in that way to pacify both parties^^ It was a question in the time of Bracton, whether the improvement or amelioration of the premises by the disseisor, ought to be taken into consideration, in assessing the damages. After stating the arguments on each side, he con- cludes thus. Sed revera, melioratio minuit dam- na, et exonerat disseysitorem in parte, et aliquan- do in toto.^ Such was the law of damages in real notions after the statute of Gloucester ; and such, without any material change, it continued until real actions went out of use in England. The circumstances by which that change was brought about, and an action of Trespass and Ejectment was converted into a remedy for the recovery of the freehold, has been explained in another place.^ It may be use- ful to the student to add a few remarks upon the introduction of a subsequent action of Tvespass, for the recovery of the damages occasioned by the disseisin, usually denominated an action for the mesne prof ts. And it would not be uninterest- ing to notice the circumstances which have occa- 1 Brae. Lib. iv. c 19, § 8. 2 gj-ac, sup. § 9. 3 ^te, p. 52. 54. 396 REAL ACTIONS. [CH. VIII. sioned a departure from the ancient course of proceedings in real actions, by our own courts. We allude to the change by which the land only, without damages for the ouster, is now recovered in a writ of Entry: and a subsequent action /br the mesne jjrojits is brought after the recovery in that action, in the same manner, as after the re- covery in an Ejectment in England * * The circumstances which led to the change of the an- cient practice in writs of Entry, by rendering judgment for the land only, zcithout damages, are perhaps too remote to be trac- ed. It seems probable, indeed, considering the situation SLud character of the colonists, that this change was the result of accident, rather than design. For sometime after the establishment of the colony, it will be recollected, all the powers of government were united in the same hands. The forms of judicial proceedings were im- perfectly known, and but little regarded. The nature of legal remedies, and particularly the distinctions between differ- ent actions were by no means understood. And the action on THE CASE was for many years the universal remedy, not only for personal injuries, and breaches of contract, but even for the re- covery of lands. See note A. at the end of this volume. Long before judicial proceedings had assumed a regular and systematic form in the Massachusetts colony, i\\Q fictitious action of Ejectment had become firmly established in the English courts. But the fictions adopted in that action were intelligible only to lawyers. And if they had been better understood, they were not of a nature to be approved and adopted by such a people as our ancestors. We should hardly expect them to resort to the indirect method of making a lease of their lands, in order to try the title. And as to the confessing a lease, an entry, and an ouster, which never had any existence SEC. 11.] MESNE PROFITS. 397 Sect. II. In order the better to understand some of the remarks which are to follow, the student should bear in mind, that so refined were the notions concerning real property, even in the time of Bracton, that theyee simple was consid- in fact ; they seem, (as we should naturally expect^) to have regarded it as a violation of truth, and therefore wholly inad- missible. It is doubtless to these circumstances that we are to attrib- ute the remarkable fact, that there are only two cases to be found upon the records of our courts of the fictitious action of Ejectment, upon the English model. These were after a new organization of the courts under the administration of sir Ed- mund Androsse, in the reign of James II. Both of them were brought by the same party, then resident in England; the one in Suffolk for lands in Boston, and the other in Middlesex for lands in Maiden. In each case there was finally an appeal to the king in council. Whether the expectation of such an appeal was the reason for adopting the English practice cannot now be determined. See note A. It may be further remarked, that when precedents were consulted, the form of the writs of Entry would of course be considered more consonant to the nature of their titles, than the action of Ejectment. And we should expect to find the former remedy adopted in preference to the latter ; or that instead of an exact conformity to either, the features of both would be in some measure blended together. And we accord- ingly find, in the records of our courts, the precedents of writs for the recavery of lands, through nearly the whole of the last century, are of this mixed character. Even some of those which are in use at the present day, are strictly neither writs of Ejectment, Entry, Formedon, or writs of Right. Some of those which begin, " in a plea of ejectment," and demand the possession, and not the seisin or the land, afterwards proceed to 398 REAL ACTIONS. [CH. VIII. ered capable of being divided into several different interests. While one person had a freehold in a tene- ment, another might have the usufruct, the use, and the habitation ; as he has observed, in conformity to the distinctions of the Roman laic} If he who was owner of the freehold was ousted^ his remedy (as we have seen in the former part of this work,) was by a v.rit of Entry, or some one of the real actions which have been mentioned. But for a long time there was no remedy, but upon his covenant, for him whose estate was less than (i allege a scis'ui by iaking the esplces^ like a writ of Entry. Sec Am. Prcc. od cd. 358, No. 7 ; 362, No. 48. When lawyers who were educated in England came to practice in the courts of the colony, they brought with them, and applied to the action in use here, the principles of the action of Ejectment, in which no damages were recovered. And it soon became the established law, that no damages were to be recover- ed with the land. So tliat, although we lind a few early cascs^ in which lands were recovered, rcith damages, in the action on the case; there probably will not be found an}' instance, within the last century and a half, in wliich damages have been recover- ed in a real action. It seems, indeed, to have been taken for granted ; that the practice of the English courts, as to the re- covery of mesne profits, by an action of trespass, after an Eject- ment, was equally applicable to writs of Entry. But for the last thirty or forty years, its general application has been very correctly restricted to those cases of a recovery in a writ of Entry, where the demandant had a right to enter, when he commenced his suit. ^ Brae. Lib. iv. c. 36, ^ 1 ; and see Inst. Lib. ii. Tit. 4, 5. ^TEC, II.] MESNE PROFITS. 399 frjeehold. At length, in the reign of Henry III. a remedy was provided for the recovery of the usufruct, the use, or the habitation of a tenement, if the owner was ejected, before the end of the term. This remedy was the writ of Quare ejecit infra terminum, mentioned in a for- mer chapter,^ by which the lessee recovered the residue of his term, with damages for the part of which he had been deprived. But this action was in a great measure superceded, early in the reio^n of Edward III. by the action of Ejectione firmce, by which damages only were recovered by the lessee, against the wrong-doer, for the trespass committed in ejecting him. The lessee had now three remedies, which were applicable to some of the injuries to which he was liable. 1. If his lessor ejected or disturbed him, he might Have an action of covenant, to re- cover damages for the breach of his contract. 2. If either the lessor, or a stranger ousted him, and made a feoffment to another, the lessee might have a Quare ejecit infra terminum against the feoffee; by which he would recover the residue of his term, ivith damages for being deprived of the possession. 3. He might maintain the Ejectione jirmcB, for the recovery of damages only against the ejector. But though a tenant for years might ^ See Ante, p. 52, 400 REAL ACTIONS. [CH. VIII. maintain all these actions, they were so restricted in their application, that still he had no remedy by which he could obtain the restoration of his term, if a stranjier ejected him, and instead of making a feoffment to another, retained the pos- session himself. These circumstances led the court of Chan- cery to interpose, early in the reign of Henry VII. when the interests of lessees had become more important, on account of the long period for which leases were now frequently granted. The remedy there given was by a decree of specific perform- ance, where the lessor was complained of, or an injimction, if the lessee was disturbed by a strang- er. And about the same time the courts of law undertook by an extraordinary proceeding, to do substantial justice, and restore the term to the lessee, when he Avas ousted. This was done by changino the judgment in the action oi" Ejectione frmcB, awarding a recovery of the term, with damages for the disseisin and taking the profits, and issuing a writ of Possession. This appears to be a great and sudden altera- tion of the law, considering that it was brought about by the mere authority of the court, without the sanction of the legislature. But the way had been gradually preparing, for tliis new application of an old remedy, by the change of opinions which had taken place in the courts. SEC. II.] MESNE PROFITS. 401 In the reign of Edward III. and afterwards in that of Richard II. it had been expressly laid down by the court, that an Ejectione JirntcB was merely an action of Trespass, by which damages only could be recovered.^ But early in the reign of Edward IV. we find it asserted in argument, and not denied by the court, that the plaintiff in Ejectionefomce should recover what remained unexpired of his term, and damages for the time it had been with- held from him.^ But though the change must have been made some years before, we do not find any judgment in this action for the recovery of the term, until the fourteenth year of Henry VII. the record of which may be seen in Rastell.^ The practice thus established appears to have continued in England, until the action assumed its modern form. And the damages awarded by the jury, when the plaintiff recovered, were intend- ed to be a compensation for the injury he had sustained, by being deprived of the possession and profits of the tenements, during the tortious holding by the defendant. But when the modern ACTION OF EJECTMENT, with its fictious, took placc of the old remedy, the practice was changed. The jury were now restricted to trying the question of title only. The consequence was, that instead of 1 Fitzh. Ejectione firma?, 2. ^ 1 Edw. IV. 6, b. » 14 H. VII. 244, b ; Rast. 252, b. 253, a. 51 402 REAL ACTIONS. [CH. VIII. a just remuneration for the loss of the jmssession^ the plaintiff now recovered only nominal damages. This rendered a new remedy necessary, after the possession had been restored, to obtain compensa- tion for the injury sustained by the ouster, and the loss of the possession and profits. And the courts soon found means to give such a remedy, by an action of trespass for the disseisin, or as it is us- ually expressed, for the mesne profits. This ac- tion, which is auxiliary to the Ejectment, is never brought, until after the possession has been recov- ered. In what cases it may be maintained, after a recovery in Ejectment, according to the modern practice of the English courts, will be next ex- plained. Sect. III. It is impossible at this time to ascertain with precision, when the action of Tres- pass for the mesne profits was first introduced. No allusion to such an action we believe occurs, until after the reign of Elizabeth. But there can be no doubt, that after the change in the action of Ejectment, by rendering judgment for the plaintiff to recover his term, he still continued to recover damages for the injury he had sustained, by being deprived of his property, until the remedy by a subsequent action of trespass for the mesne profits was introduced.* And this remedy was manifestly 1 4 Reeves' Hist. 168, 169. SEC. HI.] MESNE PROFITS. 40S intended, as far as the nature of the action of Trespass would permit, to be a complete substitute for the damages recovered in real actions, after the statute of Gloucester.* After the recovery in the action of Ejectment, the lessor of the plaintiff, according to the present practice in the English courts, may bring the ac- tion of Trespass ybr the mesne profits, either in his own name, or in the name of the nominal lessee. The former method is most commonly adopted. And where the plaintiff intends to re- cover the rents and profits received by the defend- ant, anterior to the time of the demise stated in the Ejectment, he must of course sue in his own name ; because damages cannot be awarded to the the nominal plaintiff, for the rents received prior to the commencement of his supposed term. There is also another inducement for the lessor to sue for the profits in his own name ; that if the * It appears to have been the practice formerly in Peniir- sylvania, Delaware, and Maryland to render judgment in the Ejectment for the mesne profits, and damages arising from the deprivation of the possession. 4 Dal. 142, BoyiPs lessee vs. Cowan ; 3 Maryl. Rep. 7, M'^Cuhhin vs. Shield's lessee. Wheth- er the practice still prevails in Deleware, we are not informed. It has probably been long discontinued in Maryland ; and in Pennsylvania a separate action is now brought for the recovery of the mesne profits. 3 Maryl. R. 96, Gore''s lessee vs. Wor- thington ; 6 Bin. 450, Bailey vs. Fairplay. 404 REAL ACTIONS. [CH. VIII. suit is instituted in the name of the nominal plain- tiff, the proceedings will be staid, upon motion, until security is given for the costs. It was once doubted whether this action could be maintained in the name of the nominal plaintiff in Ejectment, after a judgment by default against the casual ejector ; because, in order to maintain the action of Trespass, an entry must be either jrroved or admitted ; and in this case neither could be done. But it was held by the court, that the lessor of the plaintiff and the tenant in possession were to be considered as the real parties to the suit. And that there was no distinction between ajudgment in Ejectment by verdict and by default, as to the effect upon the action for the mesne profits ; the right of the plaintiff in the one case being found by the jury, and in the other con- fessed.^ If one tenant in common has recovered against his co-tenant, in an action of Ejectment, he may afterwards maintain his action of Trespass for the mesne profits against him,^ notwithstanding the general rule of law, that one tenant in common cannot have trespass against another, for taking the whole profits.^ But the action for mesne 1 2 Bur. 668, Aslin vs. Parkin. 2 3 Wils. 118, Goodtitle vs. Tombs. 3 Bro, Ten. in Com. pi. 14. SEC. III.] MESNE PROFITS. 405 profits cannot be maintained against an executot or administrator, for the profits received bj the testator or intestate, in his lifetime. For the remedy being by an aclion of Trespass quare claicsiim /regit, it dies with the party. If the tenant underlets, the action for the mesne profits may be maintained against the undertenant. For it is no defence to the action, that the party was upon the premises, as agent or undertenant of the defendant in Ejectment ; because no one can authorize another to enter upon land to which he has no title. But it does not appear to be set- tled England, whether this action can be maintain- ed against the defendant in the Ejectment, for the holding over of his subtenant.* The right to recover the mesne profits is a necessary consequence of a recovery in an action of Ejectment, and the defendant can set up no title in bar. Even where the defendant, after a recov- ery in Ejectment against him, had commenced a second Ejectment for the same premises, and had obtained a verdict, he was not permitted to set up this second verdict, as a bar to an action for the mesne profits, which had been brought against him after the recovery in the first Ejectment.^ And if the defendant, while an action of Ejectment ^ 4 Taunt. 720, Burne vs. Richardson. 2 2 Johns. 360, Bemon vs. Matsdorf. 406 REAL ACTIONS. [CH. VIH. is pending against him, gives up the possession to a third person, and the plaintiff afterwards recov- ers, an action for the mesne profits may be main- tained against such third person ; and the recovery will be conclusive against him, so that he ivill not be permitted to set up a title in himself in bar of the action.^ But the recovery in the action of Ejectment, and taking possession under it, is conclusive as to the right of the plaintiff to recover the mesne pro- fits, only from the clay of the demise^ as laid in that action. If the plaintiff^ sues only for such profits, as have accrued since the demise, no other evidence of his title is necessary, than copies of the judgment in the Ejectment, of the writ of Possession, and the return of the officer, that he has executed the same. And if the plaintiff has been permitted by the defendant to go into pos- session, without executing a W'rit of Possession, a copy of the judgment, and evidence of possession under it, will be sufficient.^ It does not seem, indeed, that evidence of a w rit of possession exe- cuted is necessary in any case, except only where the judgment is by default against the casual ejec- tor. But though not absolutely necessary, it is the most satisfactory, and generally the most con- venient evidence. ^13 Johns. 447, Jackson vs. Stone. 2 4 Esp. cas. 167, Calvert -vs. Horsfall SEC. III.] MESNE PROFITS. 407 If there has been a recovery in Ejectment against the wife, as a feme sole, the judgment will not be evidence against the husband and wife, in an action for the mesne profits. For the con- fession of the wife, that she has committed a tres- pass, cannot be given in evidence to charge the husband, in an action in which he is liable for the damages and costs. ^ When the judgment in an action of Ejectment is against the casual ejector for want of appearance, there being no other remedy for the recovery of the costs of the Ejectment, the court will permit the lessor of the plaintiff to have them included in the damages assessed for the mesne profits. And it seems, that even where the Ejectment has been defended, the plaintiff may have the taxed costs included in the damages for the mesne profits, if such costs have not been otherwise satisfied.^ But this mode of recovering the costs is seldom resorted to in practice. Where the plaintiff, after a recovery in Eject- ment, conveyed the premises to the defendant with special warranty, and then commenced an action for the mesne profits, the defendant contend- ed that the plaintiff could not maintain the action, because the conveyance with warranty was a 1 7 T. R. 108, Denn vs. White et ux. 2 1 Esp. cas. 358, Doe vs. Davis. REAL ACTIONS. [CH. VIII. release in law, of the mesne profits. But the court held that it was clearly otherwise ; and awarded judgment for the plaintiff.^ The action for the mesne profits being merely an action of Trespass Quare claiisum f regit, the pleadings are of course the same, as in other cases in which this action is brought. If the plaintiff demands the rents and profits for a longer period than six years, the defendant may plead the stat- ute of limitations, and thereby protect himself against a recovery of damages, as to all beyond six years. ^ But as the action for mesne profits, (though sometimes denominated an equitable ac- tion,) is for a tortious occupation of the plahitiff's lands, the defendant cannot be permitted to pay money into court. ^ Sect. IV. We have just seen,^ that according to the modern practice of the English courts, a recovery in Ejectment, and taking possession un- der the judgment, is conclusive evidence of the right of the plaintiff to maintain a subsequent action of Trespass for the mesne profits, from the date of the demise, as laid in the action of Eject- ment. But the student is not to understand, that the same principle holds, where the recovery is by %vrit of Entry, or other real action, according to 1 2 Dal. 156, Duffidd vs. Stille. 2 Bull. N. P. 88. 3 2 Wils. 115, Holdfast vs. Morris. ^ Ante, p. 405v SEC. IV.] MESNE PROFITS. 409 the practice in Massachusetts. For in no case, it seems, is a recovery in any real action, conclusive evidence of the demandant's right to the mesne profits. This distinction, which is often overlook- ed, should be borne in mind by the student. And the grounds of it will be better understood, if we consider for a moment the nature of the action of Trespass, and the requisites to enable the plaintiff to maintain it. It may also be useful to refer again to some of the points of difference between the remedy by Ejectment, and by a writ of Entry. The action of Trespass (/w«re clan s um f regit, (the remedy for the recovery of the mesne profits,) is a possessory action. It is entirely founded upon an injury to the plaintiff'' s possession ; and proof of an actual or constructive possession is indispensable, in ord^r to maintain it. Where the party has never had possession, evidence of the right of property, though accompanied by the right of possession, will not enable him to main- tain an action of Trespass quare clau sum f regit. But where he has had the possession, he may maintain this action for the wrongful act by which he has been deprived of it ; because at the time that wrong was committed, he was in the possess- ion. He is restricted, however, to the wrongful act, which constituted the ouster ; and can main- tain ^10 action, or rather, can recover no damages, 52 410 REAL ACTIONS. [CH. VIII. for withholding the possession, or for any subse- quent tortious act, unless he first regains the pos- session. But as soon as he has regained the pos- session, either by re-entry, or by an action^jhe law, in order to afford him a complete remedy for the whole injury he has sustained, now supposes him, by a kind of fiction, or jus postliminii, to have had possession by relation, from the com- mencement of the \vrong.^ By the act of regain- ing the possession, the ouster is changed to a trespass.^ The consequence is, that the rightful owner may now have his action of trespass v)ith a continuando^ and recover damages/or the whole injury he has sustained, however long it may have been continued ; unless he is restricted to six years by the defendant's pleading the statute of limita- tations.^ But without proof of the actual possess- ion, the most unquestionable title to the property, and the present right to the possession of it, will not enable the party to maintain this action. If the estate has descended to the heir, he thereby acquires a seisin in law, and may make a lease or other conveyance, before he has entered 1 See 19 11. VI. 28 ; 11 Co. 51, LiforcVs case ; 11 Mass. R. 519, Starr vs. Jackson ; 9 Johns. 61, Stuyvesant vs. Tompkins : 12 Johns. R. 183, Wickham vs. Freeman. 2 9 Mass. R. 535, Cox vs. Callender. 3 Eull. N. P. 87 ; 2 Johns, cas. 27, Case vs. Shepherd, SEC. IV.] MESNE PROFITS. 411 upon it. But until he has entered, he cannot maintain the action of trespass.* If the heir enters upon an abator, he can have no action against him for the wrong done before.^ And according to some authorities, a bargainee shall not have tres- pass before he makes an actual entry, though the possession is transferred to, and executed in him by the statute of uses.^ From these principles it will be manifest, that a recovery in a real action affords no conclusive evidence of the right of the demandant to maintain an action of Trespass for an injury to the same property ; but sometimes the contrary. In several real actions there is no allegation of a seisin by the demandant, or even by his ancestor. And where a seisin and subsequent disseisin are alleged, there is no averment of such a possession by the demandant, as would enable him to maintain an action for the mesne profits. In short, every fact set forth by the demandant, or found by the jury in a writ of Entry, where the demandant does not count upon his own seisin, may be true ; and yet he may have no right to recover the mesne profits. The record therefore is only evidence of the de- mandant's right to the seisin, and not of the vio- lation of his possession by the defendant. 1 Plowd. 142, Brozoning vs. Betson ; Gilb. Ten. 45. 2 2 Rol. 554 ; Com. D. Tresp. B. 3. 3 Com. D. ib ; Cart. 66. 412 REAL ACTIONS. [CH. VIII. But when the party who has been ousted^ instead of resorting to a writ of Entry or other real action, brings his action of Ejectment, and recovers the possession, the effect of such a recov- ery, as evidence of his right to maintain an action for the mesne profits, is totally dififerent. The defendant in Ejectment is obliged in the outset, by entering into the rule to confess the lease, entry and ouster^ to admit every fact necessary to ena- ble the plaintiff to maintain the action of trespass, except the right to the possession, which is the only point in issue in that action. ^Vhen that right is determined in favour of the plaintiff, by the verdict of the jury, the record of the recovery, with the possession under it, whether by entry in pais, or by executing a writ of possession, is conclusive evidence against the defendant upon the principles of estoppel. For it is a record bet^^ een the same parties, relating to the same right of possession, in \^ hich the plaintiff asserts, and the defendant admits an actual possession by the for- mer, and an ouster by the latter. The verdict of the jury establishes the plaintiffs right to the pos- session ; and the court by the judgment gives its sanction to the whole transaction. This evidence, therefore, of the plaintiff's right to the mesne profits, must be considered uncontrollable and conclusive.* . __ . .. ■ — r. ~ 'r f ^ See 3 East. 346, Outram vs. Morewood. SEC. IV.] MESNE PROFITS. 413 And although a part of the record is founded in fiction, (because the defendant often confesses an entry bv the plaintiff, which was never in fact made,) it has nevertheless for this, and every other equitable purpose, the same effect as a real pro- ceeding. No injustice is thereby done to the defendant. For the injury to the rightful owner is the same, whether he has the actual possession, or only a right to the possession and profits ; whether the defendant stepped in before him, and prevented his entry, or came in after him and thrust him out. In each case he is equitably entitled to a remuneration of his loss, in being deprived of the possession and profits by the de- fendant. And it was the design of the action of Trespass for the mesne profits to provide the owner a just indemnity, as far as the nature of the reme- dy would allow. But even the imperfect sketch which we have given, of the ancient law of dam- ages in real actions, will be sufficient to show, that the action for the mesne profits, according to the present practice in England, falls far short of the ancient remedy in several cases. In our own practice, the law upon this subject is still unsettled in many important particulars. It seems however to be very obvious, that the remedy must be still more restricted 1}ere, if the principles of the action of trespass are to be strictly applied to it. 414 REAL ACTIONS. [CH. VIII. It was remarked generally, at the commence- ment of this chapter,* that if the demandant had a right of Entry, he might, after the recovery of his seisin by a writ of Entry, maintain an action of trespass for the disseisin, or mesne profits. But it is proper to remind the student of the dis- tinction between a writ of Entry sur disseisin, and those cases where the action is founded upon an abatement, intrusion, or deforcement, and not upon a disseisin ; and also between the case of a disseisin of the demandant and of his ancestor. For the remark referred to applies, in its fullest extent, to those cases only, where the demandant who recovered the judgment was the party disseis- ed, and, in his writ of Entry, counted upon his own seisin. In such a case it is manifest, that the principle before referred to, of the recovery relat- ing back to the time of the disseisin, so as to give him, in contemplation of law, constructive posses- sion, during the time that the actual possession was withheld by the disseisor, applies in the same manner, as to the proceedings in actions of Eject- ment. When the recovery in a writ of Entry is by the same party who ivas ousted, and against him who committed the ouster, there is the same rela- tion of the subsequent to the prior possession, as 1 Ante, p. 389. SEC. IV.] MESNE PROFITS. 415 in an action of Ejectment. But where the writ of Entry is founded upon an abatement^ an intrusion^ or a deforcement, the tenant, against whom the demandant has recovered, can be considered a trespasser, and liable to an action for mesne pro- fits, only hy resorting to a fiction. For in all these cases the demandant is not even supposed to have had a prior seisin or possession, to which the subsequent recovery can relate. He has not therefore such a possession, even hy relation, as is required to maintain an action of Trespass. And even where the action is founded upon a dis- seisin, the same remark applies, if it was a dissei- sin of the ancestor of the demandant, and not of the demandant himself. It is manifest, therefore, that the action for the mesne profits, which was intended as a substitute for the damages recovered in real actions, after the statute of Gloucester, is much restricted in its operation by the iiature of the remedy. We have in our practice no fiction to extend its operation by the confession of an entry. So that, in those cases where the de- mandant never had the actual possession, nor even acquired a momentary seisin, by making an actual entry, before he instituted the writ of Entry by which he recovered the seisin, we can, at most, only consider the recovery as having relation to the commencement of the suit, so as to entitle the demandant to the mesne profits from that time. 416 REAL ACTIONS. [cH. VIII. So far, perhaps, the courts may safely go. For it does not seem to be a violation of any legal prin- ciple, to consider the deforcement, or wrongful withholding the possession from. him who is enti- tled to it, after the commencement of his action, as equivalent to a disseisin} But where the demandant has no right of entry, (though he may have such a right of property as may entitle him to recover in a real action,) he has no claim to the mesne profits.^ When the disseisor, instead of retaining the possession, transfers it to another by a conveyance in fee simple, a gift in tail, or a lease for life, the disseisee, as we have seen, may re-enter ; or re- cover the seisin by a writ of Entry in the per. But it has long been vexata qucBstio, whether the disseisee, after regaining the possession, can main- tain an action of trespass against the alienee,* * See Emerson vs. Thompson, to be reported in 2 Pick. 2 9 Mass. R. 533, Cox vs. Cullender. * It may be useful and perhaps interesting to the student, to see a brief sketch of the history of this celebrated question, which has divided the opinions of judges and lawyers for al- niost four centuries. The first case in which it was fully discussed, is 19 H. V'l. 27,28, in which the judges were pretty equally divided. The same question was made again in 34 H. VI. 30, and it seems t(» have been at the time admitted that trespass would in no case lie against a feoffee of the disseisor. The next notice we 9EC. IV.] MESNE-PROFITS. 417 who came in by title. The introduction of the fictitious action of Ejectment has put an end to this question in England, so far as relates to the find of this question, is in 37 H VI. 35. And it is there said by Fortescue and Danbij^ " if I am disseised, and the disseisor make a feoffment to one who cuts down trees, or takes the herbage, and I afterward re-enter, I may punish him by a writ of trespass ; and so to twenty alienees " But Littleton and Spilinmn said they had always held the contrary ; and that tres- pass lay against the disseisor only, and not against his feoffee. But the disseisee should recover against the disseisor /or the whole time. And to this Pole assented. But Fortescue and Danby held clearly that the disseisee, after re-entry might have trespass, even against the twentieth alienee For by the re- entry all the estates are defeated, as well the last as the first, and they shall be punished for the trespass, each one for his own time. We find the same question discussed again in 13 H. Y\\. 15, 16, when Kehle and Wfod maintained the aiTirmalive, and Constable^ Kingsmil., Frowicke, and others^ sr-ys the book, held the contrary ; because by the conmion law, he who comes in by title shall not be punished. There are a few other cases in the year books, in which the point is alluded to by the judges without any opinion being expressed. Brooke, in his Abr. Tresp. pi. 35, says " A^ota per optimam opinionem. If a man disseise me, and make a feoffment, and I re-enter, I shall not have trespass against the feoffee; for he is in by title, and not a trespasser to me." And he re- fers to the above case, 34 H. VI. 30. And in Liford's case, 11 Co. 51, Lord Coke adopts the same opinion that trespass does not lie in this case, against the feoffee, donee, or lessee, after the re-entry of the disseisee. And the chief ground of that opinion is, that the fct ion of law, that the freehold has alzvays conthiued in the disseisee, who has re -entered, shall not have relation to make him a trespassei', who came in by title ; for 53 418 REAL ACTIONri. [cH. VIII* common aclion for the mesne profits. Because the defendant in Ejectment admits in every case that he committed the ouster of which the plaintiff in Jiciione juris sempsr existit (equitas. The same opinion had been held five years before LiforcTs case, in Hobart 98, Moore vs. Husseij^ and about fourteen years after, in Hetley 66, Sijm- ons vs. Syino7is. It is also adopted in Bac. Abr. Tresp. G. § 2, and in 1 Wood's Conv. 108, where several other books are referred to, in which the opposite opinion is held. Opposed to LifordPs case, is Holcomh vs. Ravelins^ decided seventeen years before, by Pophain and Fewner against Clench ; and reported in Cro. Eliz. 540, and Owen 111. And this de- cision is adopted by Rolle^ in his Abr. 554, who notices Li- forcTs case, and 13 H. V'il. 15, as being- to the contrary. It seems also to be considered the better opinion in Com. D. Tresp. B. 2; Gilb. Ten. 46, 47; and in Vin. Tresp. T. pi. 7. Upon a review of the grounds on which these opposite opinions have been urged, it seems to be manifest, that those who have held the opinion stated by lord Coke in LifonVs case. have proceeded upon the assumption, that when the disseisee regained the possession by a re-entry, instead of resorting to the remedy by assise, he might afterwards recover damages in an action of Trespass, only in the same cases, where he might have recovered damages in the assise, before the statute of Gloucester. And we have seen, p. 390, that by the common law, the disseisor only was liable to damages in an assise, though the land might be recovered against his alienee. Those who maintain the opposite opinion, appear to rest it upon the ground, that because the statute of Gloucester made the feoffee of the disseisor liable to damages in the assise ; therefore, if instead of bringing his assise, the disseisee has regained the possession by an entry, he ought to have his action of trespass, to recover damages against the same person, of whom he could have recovered them by the assise, since that statute. SEC. IV.] MESNE PROFITS. 419 complaias. But in our practice it is otherwise. The demandant in a writ of Entry in the per, the PER and cui, and even in the post, does not charge the tenant, as the original author of the wrong, of which he complains. In the two first mentioned writs, he not only admits, but expressly avers in his count, that the tenant acquired the seisin by a colourtible title. It follows, therefore, (unless some legal fiction is resorted to which may evade it,) that the liability of the tenant in these cases to the action for the mesne profits, in- volves the long disputed question above referred to. And we are not aware that it has received a direct decision in our courts. From the principles which have been brought into view in the course of the preceding remarks, it is manifest that no general rule can be laid down in our practice, like that which is established in the English courts, where he ivho has recover- The doctrine in LiforcPs case has been adopted by the court of JVeTS) York, in Case vs. De Goes, 3 Caines, 261. In Massachusetts also, it is referred to as unquestionable authority, by Parker, C. J. in 12 Mass. R. 46, Fletcher vs. JVPFarlane. But the contrary opinion has since been decidedly held by Wilde, J. after a pretty full examination of the question, in Emerson vs. Thompson^ which will appear in 2 Pick. Rep. Among so many distinguished names, the opinion of a htcm- ble and private individual can give no additional weight to eith- er side of the question. But in our view, the opinion of lord Coke is best supported by principle and authority. 420 REAL ACTIONS. [CH. VIII. ed in Ejectment, may always maintain his action Jor the mesne profits. There may, however, be drawn from those principles, several conclusions, which upon some points may satisfy, while on others, they will aid the enquiries of the student. In the first place, it is admitted on all hands, that where the demandant ^^ ho has recovered his seisin had no right oj entry, when he commenced his suit, he has no claim to the mesne profits.' It seems indeed to be considered that where the de- mandant resorts to a writ of Right, or to a writ in the nature of a writ of Right, as a ^vrit of Forme- don, tliat he thereby admits the tenant's right of possession, and cannot afterwards recover the mesne profits. For in these actions it has been held that the right is established by the recovery, only from the rendition of the judgment.^ And where a mortgagee, after obtaining judgment and possession, in order to foreclose the mortgage, brought an action of Trespass to recover the mesne profits from the commencement of the former suit, it was decided that the action could not be main- tained.^ It has also been held, that where the jury had ascertained the value of the land, and of the improvements made by the tenant, pursuant to 1 9 Mas'-. R. 533, Cox vs. Calknder. 2 12 Mass. R. 46, Fletcher vs McFarlane. ^ 1 Pick. 87, iVilder vs. Houghton. SEC. IV.] MESNB PROFITS. 421 the statute of 1807, ch. 75, the demandant could not recover the mesne profits, whether he elected to pay for the improvements, or to abandon the land to the tenant.^ In New Hampshire^ a con- trary decision has been made under a statute con- taining similar, but not precisely the same pro- visions.^ By the law of Massachusetts, it seems that the tenant, against vvhoiii there has been a recovery in a real action, is liable for the rents and profits dur- ing the whole time he has held the possession, only in one case. And that is when the same party, whom he has disseised, has recovered against him by writ of Entry in the quibus. But we have seen in a former chapter,^ that where a man has never been actually seised, but is entitled to enter, as heir, devisee, remainder-man, or re- versioner, if he enters, he thereby becomes seised ; and the opposing his entry, or resisting his taking possession, is regarded by the law as an ouster. He may thereupon maintain his writ of Entry in the QUIBUS, upon his own seisin. And when he has recovered in that action, he will of course be entitled to recover the mesne profits also ao-ainst the tenant, from the time of his entry. For any resistance to the entry of him who has right, 1 12 Mass. R. 314, Jones vs. Carter. 2 2 N. H. Rep. 115, Withington vs. Corey. » Ante, p. 76. 422 REAL ACTIONS. [CH. VIII, or withholding the possession from him, for all the purposes of recovering the seisin and the mesne profits, has the same effect as an actual disseisin. But where the demandant in a writ of Entry in the quibus counts upon the seisin of his ances- tor, and where he brings his writ of Entry sur disseisin, or sur intrusion, in any of the degrees, the tenant can upon no legal principle be consider- ed as a trespasser, even by relation, before the commencement of the demandant's suit. It is therefore from that time only, at the farthest, that he can claim to recover the mesne profits. In some cases of deforcement, and intrusion, and perhaps of disseisin, it would be difficult to maintain the demandant's right to the rents and profits, even from the commencement of his writ of Entry, upon any sound principles of law, ap- plicable to the action of Trespass.^ These consid- erations, the student will perceive, furnish strong reasons for making an entry, as early as may be convenient, where the party has never had the actual seisin ; especially when the value of the rents and profits is a subject of importance. Sect. V. It only remains to add a few words upon the subject of damages, in the action for the recovery of the mesne profits. And it is proper ^ See Emerson v?. Thompson, 2 Pick. SEC. v.] MESNE PROFITS. A2S here to remind the student, that although this action is denominated an action ybr the mesne profits, it is an action of Trespass vi et armis ; and the jury are not confmed, in giving their verdict, to the mere rent or income of the premises. They may give such extra damages, as they may think the peculiar circumstances of the case require. In Goodtitle vs. Tombs,^ Mr. Justice Gould mentioned that he had known four times the value of the mesne profits given by the jury in this ac- tion ; and added, tliat " if it ,vas not sometimes to be so, complete justice could not be done to the party injured." This is especially the case, where the ouster of the rightful owner has been attended with circumstances of aggravation, or the premises have been particularly injured by the misconduct of the defendant. But in order to entitle the plaintiff to give evidence of such special damage, and to have it awarded to him by the verdict of the jury, all such facts and circumstances must be specially alleged in the declaration.^ We have seen,^ that in the time of Bracton, he who recovered in an Assise of novel disseisin, "was entitled to receive in damages, not only ii compensation * for the profit he might have made 1 3 Wils. 118. 2 App. No. 101 ; an(< see Adams on Eject. 337 ; 2 Chit. PI. 435, note/. '•< Ante, p. 393. 394. 424 REAL ACTIONS. [CH. VIIU from the property, if he had remained in possession, and the inconvenience he had suffered by being deprived of the enjoyment of it ; but an indemnity also for M hat had been injured or destroyed, during the continuance of the ouster^ even by accident. And this seems highly reasomible. For it never can be rendered certain, that the accident would have happened, if the ouster had not been com- mitted. Perhaps the rule has not been laid down quite so broadly, in any of the cases of trespass for the mesne profits. But it is held in a late case, that the disseisor is answerable over to the disseisee for any injury done to the freehold by a stranger, while he continues to hold the possession against the disseisee.^ And it is chiefly upon this ground, that a disseisor is permitted to maintain an action of Trespass against such a stranger, for an injury done to that possession, which he holds himself by wrong. On the other hand, this is considered a liberal and equitable action, in which the defendant is entitled to every kind of equitable allowance,^ especially where he came into the possession under a supposed legal title. He will therefore be allow- ed to set off against the rents, the taxes he may have paid, and the expences incurred in making ^15 Mass. R. 137, Cutis vs. Spring* - 2 Johns, cas 441, 442, Murray vs. Govzerncnr, SEC. IV.] MESNE PROFITS. 425 necessary and judicious repairs. Whether he shall be allowed for substantial and permanent improvements, not strictly of the nature of repairs, as for erecting buildings, fences, and the like, where there were none before, has not perhaps been decid- ed. It was the opinion of Br acton .i^ that the value of such improvements was to be allowed by the ancient law, by way of reducing the damages, to be recovered in the action of Assise. And it seems highly reasonable to adopt the same principle in our law, where the party cannot avail himself of the provisions of the statute of 1807, ch. 75, be- cause the adverse seisin has not been continued six years. For in this way only can the fair and honest purchaser obtain, in many instances, that equitable allowance, to which he is as well, and often much better entitled, than most of those persons, for w^hose benefit that statute was in- tended. 1 Ante, p. 395; Brae. lib. 4, ch. 19, § 8. 54 APPENDIX PRECEDENTS IN REAL ACTIONS. No. 1. Entry in the quibus upon the seisin of the Demandant who claims a fee simple. Summon A. to answer unto B. in a plea of Land, wherein the said B. demands against the said A. one hundred acres of land, with the appurtenances, (^or onz messuage with the appur- tenances,) in C. aforesaid, bounded &c. whereof the said A. unjustly and without judgment disseised him the said B. within thirty years now last past. Whereupon the said B. says that he was seised of the demanded premises, with the appurtenan- ces in his demesne as of fee and right, within thirty years now last past, by taking the profits thereof, to the value often dol- lars by the year ; and the said A. disseised him thereof, and still unjustly withholds the same. To the damage, &c. No. 2. Entry in the quibus upon the seisi7i of the demandant who claims an estate for life. Summon A. to answer unto B. in a plea of Land, wherein he demands against the said A. forty acres of meadow, with the 428 APPENDIX. appurtenances in C. aforesaid, bounded, &c. wliereof the said A. unjustly and without judgment disseised him, the said B. Avithin thirty years now last past. Whereupon the said B. says that lie was seised of the demanded premises, with the ai)pui'- tenances in his demesne as of freehold* within thirty years now last past, by taking the profits thereof, to the value of ten dol- lars by the year ; and the said A. disseised him thereof, and still unjustly withholds the same. No. 3. Entry in the qui bus upon the seisin of Husband and Wife, icho demand the fee simple. Summon A. to answer unto B. and M. his wife, in right of the said M. in a plea of Land, wherein they demand against the said A. one hundred acres of land, with the appurtenances in C. aforesaid, bounded &c. whereof the said A. unjustly and without judgment disseised them, the said B. and M. within thirty years now last past. Wheueupon the said B. and M. say that they were seised of the demanded premises, with the appurtenances in their demesne as of fee., in right of the said M.t within thirty years now last past, by taking the prolits thereof to the value of ten dollars by the year ; and the said A. thereof disseised them, and still unjustly Avithholds the same. No. 4. Entry in the quibus by Husband and Wife, who demand tht Freehold upon the seisin of the Wife, while sole. Summon A. and R. to answer unto B. and M. his wife, in right of the said M. in a plea of Land, wherein they demand against the said A. and R. one hundred acres of land, with the _ - *This is the proper torm, where the demandant claims an estate for life, as tenant by the curtesy, in dower, or lessee for life. + It must be slated tiiat they were both seised in right of the wife. 1 Saund. 253, n. 4; Doug. 329. APPENDIX. 429 appurtenances in C. aforesaid, bounded, &c. whereof the said A. and R. unjustly and without judgment, disseised the said M. while she was sole and unmarried, within thirty years now last past. Whereupon the said B. and M. say that she the said M. was seised of the demanded premises with the appur- tenances in her demesne as of freehold,* while she was sole and unmanned, within thirty years now last past, by taking the profits thereof to the value of ten dollars by the year, and the said A. and R. thereof disseised her : after which she intermar ried with the said B. her husband. And the said A. and R still unjustly withhold the same. No. 5. Entry in the quibus, hy the Heir itpon the seisin of his Father Summon A. to answer unto B. in a plea of Land, wherein he demands against the said A. one messuage &c. with the appur teuances in C. aforesaid, which he claims to be his right and tn hcritance,] and \vhereof the said A. unju-ty and without jadg- ment disseised one J. S. father of the said B. whose heir he is, within thirty years now last past. Whereupon he says that the said J. S, father of him the said B. whose heir he is, was seised of the messuage aforesaid', with the appurtenances, in his demesne as of fee and right, withir. thirty years now last past, by taking tlie profits thereof, to the value of ten dollars by the year, and the said A. thereof disseised him. And from the said J. S. the right descended to the said B. who now de- mands the same, as son and heir cf the said J. S. \\ and the said A. still unjustly withholds the same. *Tkis is tlic proper foim, where tenants in Dower, as well as other tenants for life, have been disseised. t These words should aUvi^ys be inserted, when the demandant claims as heir. Ante, p 152. t The demandant must always sl)ew how he is heir, when he counts noon the seisin of his ancestor. Ante, p. 157. 430 APPENDIX. No. 6. Entry in the quibus hy two Children^ (one being a Feme Covert j^ and two Grandchildren^* upon the seisin of tlieir Ancestor. Summon A. to answer unto B. and M. his wife, in right of the said M. and to D. E. and F. in plea of Land, wherein they de- mand against the said A. fifty acres of salt marsh, with the appurtenances, in C. aforesaid, bounded &c. which they claim to be their right and inheritance, and whereof the said A. un- justly and without judgment disseised one J. S. father of the said M. and D. and grandfather of the said E. and F. whose heirs they are, within thirty years now last past. Whereupon they say, that the said J. S. father of them the said M. and D. and grandfather of the said E. and F. whose heirs they are, was seised of the said fifty acres of salt marsh, {or of the de- manded premises^^ with the appurtenances in his demesne as of fee and right, within thirty years now last past, by taking the profits thereof to the value of twenty dollars by the year, and the said A. thereof disseised him. And from the said J. S. the right descended to the said B. and M. in right of the said M. and to the said D. the children of the said J. S. and to the said E. and F. the grandchildren of the said J. S. and children of one T. S. son of the said J. S.t who now demand the same as heirs of the said .J. S. ; that is to say, one third part thereof^ to the said B. and M. in right of the said M. and one third part there- of to the said D. one half of one third part thereof to the said E. and one half of one third part thereof to the said F : and the said A. still unjustly withholds the same. * By Mass Stat 1785, ch. 62, § 3, heirs may sue for their inheritance separately or together. t When the demandant claims as heir, he must always show how he is heir. Ante, p. 157. I It is not necessary to state the respective share?, though it is genev- allv done. APPENDIX, 431 No. 7. Entri/ in the quibus bi/ the Mother, Brother, and Nephews of the Disseisee : the Nepheivs being Infants, and suing by their Prochein ami. Summon A to answer unto B. widow, D. yeoman, and E. and F. minors, under the age of twenty one years^ who sue in this behalf by the said D. their uncle and next friend, in a plea of Land, %vhereinthey demand against the said A, one hundred acres of land,with the appurtenances in C.aforesaid,bounded&c. which they claim to be their right and inheritance, and whereof the said A. unjustly and without judgment disseised one J. S. the son of the said B. the brother of the said D ; and the uncle of the said E. and F. whose heirs* they are, within thirty years now last past. Whereupon they say, that the said J. S. son of the said B. brother of the said D. and uncle of the said E. and F. whose heirs they are, was seised of the demanded premises, with the appurtenances, in his demesne as of fee and right, within thir- ty years now last past, by taking the profits thereof to the val- ue often dollars by the year, and the said A. thereof disseised him. And from the said J. S. the right descended to them, the said B. the mother of the said J. S. to the said D. the brother of the said J. S. and to the said E. and F. the sons of one T. S. brother of the said J. S. who now demand the same as heirs of the said J. S. j and the said A. still unjustly withholds the same. ♦ See Mass. Stat, of Descents, 1805, ch. 90. The heirs may sue for their inheritance separately or together. Mass. Stat. 1785, ch 62, § 3. There is always some hazard in joining several demandants in a real action, because the death of one may abate the writ, if pleaded, or if suggested upon the record by one of the demandants. 11 Mass. R. 56, Cutis S^al. vs. Haskins. So also if one demandant, being a feme sole, marries pending the suit, it may be pleaded in abatement. 10 Mass. R. 179, Oxnard vs. Prop, of Ktnnebeek Purchase, Ao2 APPENDIX. No. 8. Entry in the qhbus by the Heir on the sehin of her Mother, Teti- ant pur auter vie. Summon A. to answer unto B. in a plea of Land, wherein she demands against the said A. twenty acres of land with the appui'tenancss in C. aforesaid, bounded &c. which she claims to be her right and inheritance, and whereof the said A. unjustly and without judgment disseised one M. S. mother of the said B. whose heir she is, within thirty years now last past. Where- upon she says that the said M- S. mother of her the said B. whose heir she is, was seised of the demanded premises, with the appurtenances in her demesne, as of freehold, (for the term of the life of one W. T * who is yet living,) within thirty years now last past, by taking the profits thereof to the value of tea dollars by the year, and the said A. thereof disseised her ; and from the said M. S. the right descended to the said B. who now demands the same, as daughter and heir of the said M. S. And the said A. still unjustly withholds the same. No. 9. Entry in the quibus by a I)Iinister, upon the seisin of his Pre- decessor. Summon A. to answer unloB. minister of the town (precinct or parish-) of H. in a plea of Land, wherein he demands against the said A. one messuage with the appurtenances in H. afore- said, bounded &c. which he chiims to be the right of the said town, (precinct or parish,) of H. and whereof the said A. un- justly and without judgment disseised one J. S. late minister of the said town (precinct or parish) of H. whose successor the said B. is, within thirty years now last past. Whereupon he says that the said J. S. late minister of the said town (precinct or parish) of H. whose successor he is, was seised of the said *By Mass. Stat. 1805, ch. 90, § 1, eitates pur auter vie, are estates of inheritance. APPENDIX. 433 messuage, with the appurtenances, in his demesne as of fee, ia right of the town (precinct or parish) aforesaid, within thirty years now last past, by taking the profits thereof to the value of twenty dollars by the year; and the said A. thereof disseis- ed him. And from the said J. S. the right came to him the said B. who now demands the same, as successor of the said J. S. in right of the town (precinct or parish) aforesaid. And the said A. still unjustly withholds the same.* No. 10. Entry sur disseisin in the per, upon the Demandanfs own seisin in Fee. Summon A. to answer unto B. in a plea of Land, wherein the said B demands against the said A. sixty acres of wood land, with the appurtenances in C. aforesaid, bounded &.c. and into which the said A. hath no entry, but by one J. N. who de- mised the same to him, and thereof unjustly and without judg- ment disseised him the said B. within thirty years now last past. Whereupon he says that he the said B was seised of the demanded premises, with the appurtenances, in his demes- ne, as of fee and right, within thirty years now last past, by taking the profits thereof, to the value of twenty dollars by the year : and the said J. N. unjustly therefore disseised him, and demised the same to the said A. who still unjustly withholds the same. No. 11. Entry sur disseisin in the per, by Tenant for Life, upon his own seisin. Summon A. to answer unto B. in a plea of Land, wherein he demands against the said A twenty acres of land, with the * See 2 Mass. R. 500, Weston vs Hunt; 5 Mass. R 555, Dillingham vs. Snow ; 7 Mass. R. 445, Parish of Brunswick vs. Dunning ; 10 Mass. R. 93, Brown vs. Porter. 55 434 APPENDIX. appurtenances in C. afocesaid, bounded &c. and into which the said A. hath no entry, but hy one J. N. who demised the same to him, and thereof unjustly and without judgment disseised the said B. within thirty years now last p-ist. Whereupon he says that he, the said B. was seised of the demanded premises, with the appurtenances, in his demesne as of freehold, within thirty years now last past, by taking the profits thereof, to the value often dollars by the year; and the said J. N. unjustly thereof disseised him, and demised the same to the said A. who still unjustly withholds the same. No. 12. Entri/ sur disseisin in the per bi/ a Corporation. Summon A. to answer to the President and Fellows of Har- vard College, in a plea of Land, wherein the said President and Fellows demand against the said A. forty acres of land, within the appurtenances in C. aforesaid, bounded &c. and into which the said A. hath no entry, but by one J. N. who demised the same to him, and thereof unjustly and without judgment disseised the said President and Fellows, within thirty years now last past. Whereupon the said President and Fellows say, that they were seised of the demanded premises, with the appurtenances, in their demesne as of fee and right within thirty years now last past, by taking the profits thereof, to the value of ten dollars by the year, and the said J. N. unjustly thereof disseised them, and demised the same to the said A. Avho still unjustly withholds the same. No. 13. Entry sur disseisin in the per, upon the seisin of the Brother, to whom the Demandant is Heir, and claims a Moiety. Summon A. to answer unto B. in a plea of Land, wherein he demands against the said A. one undivided moiety of sixty acres of land, with the appurtenances in C. aforesaid, bounded Sic. which he claims to be his right and inheritance, and into APPENDIX. 435 which the said A. hath no entry, but by one J. N. who demised same to him, and thereof unjustly and without judgment disseis- ed one J. S. brother of the said B. whose heir he is, within thirty years now last past Whereupon the said B. says, that the said J. S. brother of him the said B. whose heir he is, was seised of the demanded premises, with the appurtenances in his demesne as of fee and right, within thirty years now last past, by taking the profits thereof to the value of ten dollars by the year, and the said J. N. unjustly thereof disseised him, and demised the same to the said A : and from the said J. S. (who died without issue,) the right descended to him the said B. as brother and heir of the said J. S. : and the said A. stil unjustly withholds the same. No. 14. Entry sur disseisin in the per, upon the seisin of the Demand- ant's Father, icho teas Tenant pur auter vie. Summon A. to answer unto B. in a plea of Land, wherein he demands against the said B. twenty acres of land, with the appurtenances in C. aforesaid, which he claims to be his right and inheritance, and into which the said A. hath no entry, but by one J. N. who demised the same to him the said A., and thereof unjustly and without judgment disseised one J. S. father of the said B. whose heir he is, within thirty years now last past. Whereupon he says that the said J. S. father of him the said B. whose heir he is, was seised of the demanded premises with the appurtenances, in his demesne as of freehold, (for the term of the life of one W. T.* who is yet living,) within thirty years now last past, by taking the profits thereof to the value often dollars by the year: and the said J. N. unjustly thereof disseised the said J. S. and demised the same to the said A. And from the said J. S. the right descended to the said B. who now demands the same, as son and heir of the said J. S. : and the said A. still unjustly withholds the same. ♦By Mass. Stat. 1805, ch. 90, § 1, estates ;j«r aufer vie are estates oT inheritance. 436 APPENDIX. No. 15. Enli-}/ ^iir (H.^.-ai.^in in the pi:i!, hi/ a ricrlof upon his oirii seisin, in Right of his Church. Summon A. to answer unto B. Rector of Saiut Peter's church in R. in a plea of Land, wherein he demands against the said A. one messuag-e with the appurtenances in R. aforesaid, bounded &c. which he claims to be the right of the said church, and into which the said A. hath no entry, but by one J. N. who demis- ed the same to him, and thereof ui justly and withoiit judgment disseised him the said B. within thirty years now last past. Whereupon he says, that he the said B. was seised of the de- manded premises, with the appurtenances, in his demesne as of fee, in rigiit of the cliurch* aforesaid, witiiin thirty years now last past, by taking the profits thereof to the value of fifty dollars by the year, and the said J. N. unjustly thereof disseis- ed him, and demised the same to the said A. who still unjustly withholds the same. No. \6. Entt'jj siir disseisin in the feu and cui, un the Demandants own seisin for Life. Summon A. to answer unto B. in a plea of Land, wherein the said B. demands against the said A. one hundred acres of land, with the appurtenances in C. aforesaid, bounded, &c. and into which the said A. hath no entry, but by one F. "Dix. rawb mid e^fft«] of the said J. 5. deceased, within thirty jean BOirl^ p^t^bv taking the prodts thereof, to the ralue of ten didkas by the rear : and the said A. d^eised him therefiwe, ani gtiB lajastir withholds the same. No. 41. Prayer bJ aid fey a Tatant hif the Curtesy. AxD the said J. W. comes and says, that long before the sning forxh of the writ aforesaid of the said A. B. ooe M. S. was seised of the tenements aforesaid, with tt" appurtenances in her de- mesne as of fee. and being- so thereof seised, took for her hus- band him the said J. W, whereby the said J. and M. became seised of the tenements aforesaid with the appurtenances, in their demesne as of fee. in right of the said >l. And they bein» so thereof seised had isne. one M. now the wife of W. C. and afterwards the said M. the wife of him the said J. W, died, and he the said J. sttrrired her. and held the tenements afore- said, with the appnrtenances. and was thereof seised in his de- mesne as of freehold, as tenant thereof by the curtesy. And so the said J. says that he holds, and at the day*of suing' forth the writ of the said A. B. did hold the tenements aforesaid, with the apportenances. for term of his life, as tenant by the cmrtety. in form aforesaid ; the reversion thereof, al'ter the death of him the said J. beloogTng to the said M- the wife of the said W, C. and her heirs forever ; isithout xzhr/m the said J. can- not bring the tenements aforesaid with the appurtenances into plea, nor ao-swer the said A. B. thereof. And he prays the aid of the said W. C and M. and it is granted to him ice* *5e* Bast. 26, b. 27^ 3 ChiL Fl. 645; 2 Bos. and PoL 384 ; 2 Smmd. >, c. in note. APPENDIX. 457 No. 41. a. Summons ad auxiliaxdum, in a Writ of Rigid. COMMOXVTEALTH OF 1IASSACHU5ETT?. M. ss. To the Sheriff of our County of .V. or his Deputy. L. s. Greeting. Whereas A. B. of. kc. in oar Court of Common Pleas, kc. demanded against J. W. of, ice. one messuage with the ap- purtenances in C. bounded, kc. as the right and inherit- ance of the said A. B. by our irm of Right, as it is said ; and the said J. W. afterwards came into our said court, and said that he was seised of the tenements aforesaid, with the appur- tenances, in his demesne as of freehold, for the term of his life only ; the reversion thereof belonging to M. the wife of W. C. and her heirs forever ; arui prayed aid of the said W. C. and M. which was granted him. We commaxd toc therefore, that you mmmon the said W, C. and M. his wife, (if they may be found in your precinct,) to appear before our Justices of our said Court of Common Pleas, nest to be held at C Sac. to answer together with the said J. W. in the aforesaid plea, if they will. And have you there this writ with your doings therein. Witness, k.c.* No. 42. Prayer to be received to defend, 4"^. And thereupon J. S. comes here into court- in his own proper person, and says that the tenements aforesaid, with the appurtenances, are his right, because he says that on the day of suing forth the writ aforesaid of the said B. the said A. had nothing in the tenements aforesaid with the appurtenances. but that he the said J. S. on the same day, and long before was, and ret is. seised thereof in his demesne as of fee. and being so * See Rast. 271, b ; 2 Sannd. 4-5, d. ia note ; 3 Chit PI. 650. 58 458 APPENDIX. thereof seised, on the tenth day of April, kc. he demised to the said A. the tenements aforesaid, with the aj)j)urtenances, for the term of the life of the said A. by virtue of which demise the said A. was seised thereof in his demesne as of freehold ; and so the said J. S. says, that the said A holds tie tenements aforesaid with the appurtenances, for the term of his life, by the demise of the said J. S. the reversion thereof, after the death of the said A. pertaining to him the said J. S. and this he is ready to verify. Wherefore, inasmuch as he comes be- fore judgment is rendered, he prays that he may be admitted in this behalf^ &c. and he is admitted accordingly.* See Rast. 285, a. No. 43. Oath of the Sheriff xcheii the Jury are to have a view. You SWEAR, that you will take charge of this jury, and take them upon the premises in question, and there suffer them to view the same as they shall think necessary, and all such lines, monuments, and boundaries, as shall be shown them by either party : that you will not permit the parties to enter into a debate relative to the premises in the hearing of the jurj', or any person to speak to them upon the subject, unless it be A. B. on the part of the demandant, and C. D. on the part of the tenant, to point out such lines, monuments, and bounda- ries, as they shall deem expedient for the determination of the issue between them; and that you will keep the jury together, until they shall return into court. So help you God. * Upon the receit being allowed, the demandant counted against the party received, much in the same way as against a fOHc/»ee, thus : And hereupon the said B. demands against the said J. S. the tenements afore- said with the appurlenances, &ic. APPENDIX. 459 No. 44. Summons ad warrantizandum. COMMONWEALTH OF MASSACHUSETTS. M. ss. To the Sheriff of our County of M. or his Depittij. I- s. Greeting. Whereas B. of, &c. in our Court of Common Pleas, held, &c. demanded against A. of, kc. one messuage with the appurtenances in C. bounded, &c. as the right and inher- itance of the said B. by our lorit of Entri/ sur disseisin in the post, as it is said. And the said A came into our said court, and brought with him the deed of J. N. of, &lc. by which the said J. N. granted the said messuage with the appurtenances, to one J S (whose estate the said A. has in the said messuage, with the appurtenances,) and by his said deed covenanted to warrant and defend the same to the said J. S. his heirs and assigns forever ; and vouched the said J. N. to warranty, which was granted him. We command vou therefore, that jou summon the said J. N. (if he may be found in your precinct,) to ap[)ear before our Justices of our said Court of Common Pleas, next to be held at C. &c. to warrant and defend the said A. in the plea afore- said, if he TisHl. And have you there this writ, with your do- ings therein. Witness, kc. No. 45. Plea in Abatement, alienage* of the Demandant. And the said A. comes and defends his right, when, &c. and says, that the said B. ought not to be answered to his writ aforesaid, because he says that the said B. is an Alien, born in England, within the allegiance of the king of the United Kingdom of Great Britain and Ireland, and out of the allegiance of the * See some remarks upon this plea, and the several replications which may be made to it. Ante, p. 205. 460 APPENDIX. Commonu-ealth of Massachusetts ; and this he is ready to ver- ify, &c. : wherefore he prays judgment of the writ aforesaid of the said B. and that the same may be quashed, &c. No. 46. Plea of GENERAL Nox-TENURE to thc Writ. And the said A. comes and defends his right, when, &c. and says, that he cannot render the messuage aforesaid with the appurtenances, (or the tenements aforesaid Tvith the appurtenan- ce5,) to the said B, because he says that he is not, nor was at the time of suing forth the writ aforesaid of the said B. or at any lime since, tenant thereof as of freehold : and this he is ready to verify. Wherefore he prays judgment of the said writ, and that the same may be quashed, Lc. No. 47. Plea o/ SPECIAL NON-TENURE to the Writ. And the said A. comes and defends his right, when, &c. and says, that he cannot render the tenements aforesaid, with the appurtenances to the said B. because he says that he is not, nor was at the time of suing forth the writ aforesaid of the said B. or at any time since, tenant thereof as of freehold ; but one C. of, &,c. long before the suing forth of the said writ, to wit, on, &c. was seised of the tenements aforesaid with the appurtenances, in his demesne, as of fee, (or freehold.,) and being so thereof seised, afterwards, to wit, on, &,c. demised the same to the said A. to have and to hold to him, his exec- utors, administrators, or assigns, from the day of, Lc.for the term of five years., fully to be complete and ended. By virtue whereof the said A. entered into the said tenements with the appurtenances, and became possessed of such estate therein as aforesaid ; and had not at the time of suing forth the said writ, nor at any time since, any estate therein but for a term of years, in form aforesaid, the freehold thereof then, ever APPENDIX. 461 since, and still, being in the said C ; and this he is ready to verify. Wherefore he prays judgment of the said writ, and that the same may be quashed, &c. No. 48. General non-tenure as to one Moiety^* in Abatement, and non DissEisiviT as to the Residue. And the said A. comes and defends his right, when, &c. and as to one undivided moiety of the said messuage, with the appurtenances, says that he cannot render the same to the said B. because he says, that he is not, nor was at the time of suing forth the writ aforesaid of the said B. or at any time since, tenant thereof as of freehold ; and this he is ready to verify. AVherefore, as to that moiety of the said messuage with t!ie appurtenances, he prays judgment of the said writ, and that the same may be quashed, Lc. And as to all the residue of the said messuage, with the appurtenances, the said A. says, that he did not disseise the said B. of the same residue of the said messuage with the ap- purtenances, in manner and form as the said B. hath thereof in his writ and count aforesaid above supposed. And of this he puts himself upon the country, &c. No. 49. Replication to a Plea of non-tenure, taking Issue upon the Pica. And the said B. says, that his said writ, by reason of any thing by the said A. before alleged, ought not to be quashed, because he says that the said A. at the time of suing forth the writ aforesaid of him the said B. to wit, on the tenth day of, &:c. was tenant of the messuage aforesaid, with the ap- * Perhaps in our practice there is no occasion to plead in this manner, in any case. The better and more convenient course seems to be to dis- claim, or plead nontenure as to part in bar, and non-disseisivit as to the residue. 462 APPENDIX. purtenances, as of freehold, as bj the said writ i? above suppos- ed. And tliis he prays may be inquired of by the country, &C. No. 50. Plea 0/ JOINT-TENURE % onc u-ho is sued alone, with Profert of the Deed. And the said A. comes and defends his right, when, &c. and says that he holds, and on the day of suing forth the writ aforesaid of the said B. and always afterwards, held the tene- ments aforesaid, with the appurtenances, jointly with one J. S. of, &.C. {or jointly with M. the wife of (he said A.) of the gift and grant of one J. N. to them the said J. S. and A. [or A. and M.] and their heirs jointly, and not severally,; which the said A. brings here into court, the date whereof is at C. on, &c. Which said J. S. is still surviving, and in full life, to wit, at C. aforesaid ; and this he is ready to verify. Wherefore, inas- much as the said J. S. is not named in the said writ, the said A. prays judgment of that writ, and that the same may be quashed, &.c. No. 51. RepUcutioii to a Plea of joint-tenure, taking Issue on the Plea. And the said B. says that his said writ, by reason of any thing by the said A. before alleged, ought not to be quashed, because he says, that the said A. at the time of suing forth the writ aforesaid of him the said B. to wit, on the first day of June, in the year of our Lord, &,c. was sole tenant of the freehold of the aforesaid messuage with the appurtenances, as by the said writ is above su[iposed. Without this that the said J. S. had any thing in the same. And this he prays may be inquired of by the country, &lc. And the said A. likewise. APPENDIX. 463 No. 52. Plea that the Demandant is joint-tenant with another, not named in the Writ. And the said A. comes and defends his right, when, fcc. and says, that the said B. never had any thing in the messuage aforesaid, with the appurtenances, except jointlij zfith one J. S. of, &c. who is still surviving and in full life, to wit, at C afore- said ; and this he is ready to verify. Wherefore, inasmuch as the said J. S. is not named in the said writ, the said A. prays judgment of that writ, and that the same may he quash- ed, &c. A replication, taking issue upon this plea, may be very easily framed from the preceding. No. 51. No. 53. To a Writ of Entry in the Quibtis against tioo, one disclaims^ and the other takes the Sole or Entire-tenure, and pleads over, Non disseisivit. And the said A. and D. come and defend their right, when, &c. and the said A. says that he cannot render the messuage aforesaid with the appurtenances, to the said B. because he says that he is not tenant thereof as of freehold, nor was at the time of suing forth the writ aforesaid of the said B. nor at any time after; nor ever had any thing in the said messuage with the appurtenances, nor claimed, nor now claims, to have any thing therein; but utterly disavows and disclaims to have any thing in the same ; and this he is ready to verify. Where- fore he prays judgment of the said writ, and that the same may be quashed, kc. And the said D. says, that he is sole tenant as of freehold, of the messuage aforesaid, with the appurtenances and was at the time of suing forth the said writ ; without this, that the said A. ever had any thing in the same. And the said D, says that he did not disseise the said B. of the aforesaid messuage with the ap- 464 APPENDIX. purtenances, as the said B. in his writ aforesaid hath above supposed ; and this he is ready to verify. Wherefore he prays judg-ment if the said 13. his action aforesaid thereof against him oug-ht to have, &,c. No. 54. Replication to the last Plea, takivg Issue. And the said B. says, that by reason of any thing by the said D. above alleged, he ought not to be precluded from having his action aforesaid thereof against him, because he says, that the said D. unjustly and without judgment disseised him the said B. in manner and form as the said B. by his writ aforesaid hath complained. And this he prays may be inquired of by the country, &c. And the said D. likewise, &c. No. 55. To a Writ of Entry against tioo jointly, each pleads Non-tenure with a Disclaimer, as to the othcr^s part, and Several-tenure as to the Residue. And the said A. and D. come and defend their right, when, &c.and the said A. as to two third parts of the messuage aforesaid with the appurtenance;^, [or, as to sixty acres, parcel of the said one hundred acres of land, with the appurtenances, being the southerly part thereof, bounded, S^-c.^ says that at the time of su- ing forth the writ aforesaid of the said B. he the said A. was sole tenant thereof as of freehold ; without this that the said D. on the day aforesaid, or at any time afterwards, had any thing in the same. And the said A. says that he did not disseise the said B. of the aforesaid messuage with the appurtenances, as the said B. in his writ aforesaid hath above supposed ; and this he is ready to verify. Wherefore he prays judgment, if the said B. his action aforesaid thereof against him ought to have, kc. APPENDIX. 465 And the said D. as to the one ihird part of the messuage aforesaid with the appurtenances, [or, as to forty acrcs^ parcel of the said one hundred acres^ t^c.] says that at the time of suing forth the writ aforesaid of the said B. he the said D. was sole tenant thereof as of freehold, &c. as before. Wherefore he prays judgment, &c. No. 56.* Replication taking Issue on the above Pleas. And the said B. says, that his said writ, by reason of any thing by the said A. and D. belore alleged, ought not to be quashed, because he says, that at the time of suing forth the writ aforesaid, of him the said B. to wit, on the first day of March in the year of our Lord, &c. the said A. and D. were joint tenants of the messuage aforesaid, with the ajipurtenances, as by the said writ is above supposed And this he prays may be inquired of by the country, &c. And the said A. and D. likewise. See Rast. 364, b; 365, a. No. 57. To a Writ in the pkr, Plea that the Tenant did not cuter by the Person named in the Writ. And the said A' comes and defends his right, when, &c. and says that by the writ aforesaid of the said B. it is supposed *No. 56, Referred to, ante p. H9. Plea that the writ should have been in the per and cui, and not in the PER. And the said A. comes and defends his right, when, &,c. and says that by the writ aforesaid of the said B. it is supposed that tiie said A. had his entry into the tenements aforesaid, by one J. N. Whereas the said A. had his entry into the said tenements, by one .1. S. to whom the said J, N. demised the same, and not by the said J. N. as by the writ aforesaid is supposed : and this he is ready to verify. Wherefore he prays judgment •f the said writ, and that the same may be quashed, Sic. 59 466 APPENDIX. that the said A. had his entry into the tenements aforesaid by the said J. JV. Whereas the said A. had his entry into the said tene- ments by one J. S. and not by the said J. N. as hy the writ aforesaid is supposed : and this he is ready to verify. Where- fore he prays judgment of the said writ, and that the same may be quashed, &c. No. 58. Replication to the above Plea, taking Issue. And the said B. says that his said writ, by reason of any thing before alleged, ought not to be quashed, because he says that the said A. had his entry into the tenements aforesaid by the said J. JY. as by his writ aforesaid is above supposed. And this he prays may be inquired of by the country, kc. And the said A. likewise, &c. No. 59. Flea PUIS darrein continuance, that the Demandnnt has en- tered into the demanded Premises, and disseised the Tenant thereof. And now at this day, that is to say, on the second Monday of September A. D. 1824, until which day the plea aforesaid was last continued, comes the said A. by his attorney aforesaid, and prays judgment of the writ aforesaid, of the said B. be- cause he says, that after the last contimuince of this cause, and before this day, that is to say, on the first day of July now last past, the said B. unjustly and without judgment entered into the said messuage, ^-c. with the appurtenances, in the writ of the said B. mentioned, and disseised the said A. thereof and is still tenant of the same, by his disseisin aforesaid ; and this he is ready to veriiy. Wherefore he prays judgment of the said writ, and that the same may be quashed, &.c. APPENDIX. 467 No. 60. Replication to the preceding Plea^ taking Issue. An3 the said B. says that his said writ, by reason of any thing- by the said A. before alleged, ought not to be quashed, because he says that he has not entered into the said messuage^ with the appurtenances^ and disseised the said A. thereof^ since the last continuance of this cause, in manner and form as the said A. in his plea aforesaid hath above alleged ; and this he prays may be inquired of by the country, &c. No. 61. Plea., PUIS DARREIN CONTINUANCE, Marriage of a Feme Sole, one of the Demandants. And now at this day, that is to say, on the second Monday, &c. until which day the plea aforesaid was last continued, comes the said A. by his said attorney, and prays judgment of the writ aforesaid of the said B. C. and D. because he says, that after the last continuance of this cause, and before this day that is to say, on the tenth day of, &c. the said Mary D. in the said writ mentioned, took to her husband, and was joined in marriage with one John T. now the husband of the said Mary to wit, at C. aforesaid ; and this he is ready to verify. Where- fore he prays judgment of the writ aforesaid, and that the same may be quashed, &,c. No. 62. Flea PUIS darrein continuance, Death of one of the Demand- ants. And now at this day, that is to say, on the second iVIonday, &c. until which day the plea aforesaid was last continued comes the said A. by his said attorney, and prays judgment of the writ aforesaid of the said B. C. and D. because he says, that after 468 APPENDIX. the last continuance of this cause, and before this day, that is to sav, on the tenth day of, &c. the said James B. in the said writ mentioned, died, to wit, at S. in the county of C. aforesaid ; and this he is ready to verify. Wherefore he prays jndgrinent of the writ aforesaid, and that the same may be quashed, ice. No. 63. Plea of General issue, non disseisivit, to a writ of Entry in the QuiBUS, ujjon the Seisin of the Demandant. And the said A. comes an d defends his right, when, &.c. and says that he did not disseise the said B. in manner and ibrm as he in his writ aforesaid hath above supposed ; and of this he puts himself upon the country, «ls:c. And the said B. likewise. No. 64. The same Plea to a Writ upon the Seisin of the Demandants Aneestor. And the said A. comes and defends his right, when, &.c. and Si:ys he did not disseise the soid J. S. in manner aiul t'orm as the said B, in his writ aforesaid hath above supposed ; and of this he puts, &c. No. 65. The same Plea to a JVrit of Entry in the per, the per and cui, or the POST. And the said A. comes and defends his right, when, &c. and says that the said J. N. did not disseise the said B. [or the said J. S. father or other ancestor of the said B.] in manner and form as the said B. in his writ aforesaid, hath above supposed, and of this he puts, &ic. APPENDIX. 469 No. 66. Plea o/" Nox-TENURE, in Bar. And the said A. comes and defends his right, when &c. and says, that the said B. his aforesaid action thereof against him ought not to have, because he says, that he is not, nor was at the time of suing forth the writ aforesaid of the said B. nor at any time since, tenant of the said messuugr^ with the appurtenances therein mentioned, as of freehold ; and this he is ready to verify. Wherefore he prays judgment if the said B. his aforesaid action thereof against him ought to have, &c. ' No. 67. Replication to the above Plea taking Issue. And the said B. says, that by reason of any thing above alleged, he ought not to be precluded from having his afore- said action thereof against the said A. because he says, that the said A. at the time of suing forth the writ aforesaid of him the said B. was tenant of the said messuage., with the appurte nances, as of freehold, in manner and form, as by the said writ is above supposed. And this he prays may be inquired of by the country, &c. No. 68. Plea o/'non disseisivit, as to Part, and a DlSCLAI^rER, as to the Residue. And the said A. comes and defends his right, when, &c. and as to ten acres of land, &c. with the appurtenances, parcel of the tenements aforesaid, bounded, &c. says, that he did not dis- seise the said B. in manner and form, as he by his writ afore- said hath above supposed ; and of this he puts himself upon the country, &c. And as to all the residue of the tenements aforesaid, with the appurtenances, the said A. says, that he has 470 APPENDIX. nothing therein, nor claimed to have, on the day of suing- forth the writ aforesaid of the said B. nor ever after ; but to have any thing therein wholly disavows and disclaims ; and this he is ready to verify. Wherefore he prays judgment if the said B. his aforesaid action thereof against him ought to have, &c. No. 69. « Replication to a Pica (?/' disclaimer, talcing Issue. And the said B. says, that by rt'ison of any thing above alleged, he ought not to be precluded from having his afore- said action thereof against the said A. because he says, that the said A. at the time of suing forth the writ aforesaid of him the said B. and Jong afterwards, did claim and hold the tenements aforesaid with the appurtenances, in manner and form as the said B. by his writ aforesaid hath above supposed ; to wit, at C aforesaid. And this he prays may be inquired of by the country, &c. No. 70. Plea in Bar, A conveyance by the Demandant of the Premises to a Stranger, in Fee Simple. And the said A. comes and defends his right, when, kc. and says, that the said B. his aforesaid action thereof against him ought not to have, because he says, that long before the suing forth of the writ aforesaid of the said B. to wit, on the tenth day of, &c. the said B. by his deed of bargain and sale, of that date, duly executed and delivered, for a certain good and valuable ccflsideration in the said deed expressed, granted, bar- gained, and sold to one J. N. the whole of the said messuage, with the appurtenances, in the writ aforesaid of the said B. men- tioned, to have and to hold the same to the said J. N. his heirs and assigns forever ; by force of which deed the said J. N. before the suing forth cfthe writ aforesaid of the said B. became seised the said messuage with the appurtenances, in his demesne as APPENDIX. 471 of fee and rig-ht ; and this he is ready to verify. Wherefore he prays judgmeni if the said B. his aforesaid action there- of against him, for the recovery of the tenements aforesaid, ought to have, &.c. No. 71. Replication to the last Plea, that nothing passed by the Demandant's Plea. And the said B. says, that by reason of any thing above alleged, he ought not to be precluded from having his afore- said action thereof against the said A. because, [^protesting* that the deed aforesaid in the pica of the said A. above mention- ed was never delivered by Mm the said B. to the said J. N. for replication nevertheless in this behalf^ the said B. sa^'s, that nothing in the messuage aforesaid ioith the appurtenances ever passed from him the said B. to the said J. N. by force of the deed aforesaid, in manner and form as by the plea aforesaid of the said A. is above supposed ; and this he is ready to verify. Wherefore he prays judgment, and his seisin of the tenements aforesaid, with the appurtenances to be adjudged to him, &c. No. 72. PRAYERt that the Jury may inquire as to the Increased Value of the Premises, by reason of Buildings and Improvements. And the said A. further says, that he the said A. and those under whom he claims, have been in the actual possession of the tenements aforesaid with the appurtenances, for the space of six years and more, next before the suing forth of the writ of the said B. in this action, and have greatly increased the *The protestHtnn between brackets mpy pe'baps be as well omitted. tThis prayer, whea necessary, is usually added to a plea oi ihe general issue. 472 ' APPENDIX. value thereof, by virtue of the buildings and improvements by them made upon the same. He therefore prays that the jury who shall try the issue above joined, (if they shall find a verdict for the said B.) may also inquire, and by the said ver- dict ascertain the increased value of the said tenements, by refison of the buildings and improvements made thereon, by the said A. and those under whom he claims as aforesaid. No. 73. Prayer of the Demandant, that the Jury may inquire as to the Value of the Premises without the Improvements. And the said B. on his part also prays, that the jury afore- said, (if they find the increased value of the said tenements by reason of the buildings and improvements aforesaid.) may also by their verdict ascertain what would have been the value thereof, if no buildings or improvements had been made thereon, by the said A. and those under whom he claims as aforesaid. No. 74. Verdict for the Demandant, tcith a Finding of the Value of the Improvements, Sfc. The jury find that the said A. did disseise the said B. in manner and form as he in his writ aforesaid hath thereof complained. And they further find the increased value of the said ten- ements, by reason of the buildings and improvements made thereon by the said A. and those under whom he claims, to be dollars. They also find that the value of the said tenements, if no such buildings or improvements had been made thereon by the said A, and those under whom he claims, would have beea dollars. APPENDIX. 473 No. 75. Count in a Writ of dower in Massachusetts. Summon A. to aiiswer unto M. S.* who was the wife of J. S. late of, &c. deceased, in a plea of Dower, wherein she demands against the said A. the third part of one messuag-e, [or sixty acres of land^ 4'C.] with the appurtenances, in C. hounded,'!" &c, as the dower of the said M. of the endowment of the said J. S, her said husband, whereof she hath nothing. ^Y^EREU^oN the said M. complains and says, that the said J. S. her said husband, during the coverture of the said M. with the said J. S. was seised of the messuage aforesaid, [or the said sixtij acres of land,] with the appurtenances, in his demesne as of fee ; and that since the decease of the said J. S. her said husband, and more than one month before the suing forth of this writ, to wit, on the tenth day of, &,c. she the said M. demanded J of the said A. then, and ever since, tenant in possession, and hav- ing the immediate estate of freehold in the said messuage, [or the said sixty acres of land,] to assign and set out to her the said M. her reasonable dower therein, which the said A. hath refused to do, and still defoixeth the said M. thereof. ♦When the action is brought by husband and wife, the form is thus : "To answer unto J. IV. and M. his wife, (wliich said M. was formerly (he wife of J. S. late of, k.c. deceased.) in a jilea of Dower wherein they demand. t If the lands are known by any particular name, they need not be described by metes and bounds. 10 Mass. R. 80, £tjer vs. Spring. t Though the stat. 1783, ch. 40, requires a demand, it does not seem necessary to insert this averment in the count. But it appears to have been the uniform practice ; and it is therefore retained. 60 474 APPENDIX. No. 76. Pica in ABATEMENT, NO DEMAND made one Month before simig forth the Writ. And the said A. comes and* says that the said M. did not demand of him the said A to assign and set out to the said M. her reasonable dower, of and in the messuage aforesaid, with the appurtenances, one month before the time of suing forth the writ aforesaid of the said M. in manner and form as by the said writ is above supposed ; and this he the said A. is ready to verify. Wherefore, lie prays judgment of the said writ, and that the same may be quashed, &,c. No. 77. Plea in abatement, no demand upon the Person who took the neit immediate Estate of Freehold. And the said A comes and says, that upon the death of the said J. S, late husband of the said M. the messuage aforesaid with the appurtenances, descended to T S. and W. S. as sons and heirs of the said J. S. and that they the said T. and W. took and had the next immediate estate of I'reehold and inheritance therein, after the death of the said J. S and that the said M. never made any demand of them the said T. and W or eith- er of them, to assign and set out to her the said M. her reasona- ble do A'er of and in the aforesaid messuage witu the appurte- nances ; and this the said A. is ready to verily. Whoret'ore he prays judgment of the writ aforesaid of the said M. and that the same may be quashed, fcc. No. 78. Pica in BAR, Ne unqnes accouple, in loyal matrinonie. And the said A comes and soys that the said M. ought not to have her dower of the tenements aforesaid, [or the said ♦In ])leas to writs of Dower, the defince is always omitted. Bootk 118 ; Rast. 232, b. 233, a ; 3 Chit. Fl. 699, 600. APPENDIX. 475 jtiessuage^'\ with the appurtenances, as having heen the wife of the said J. S. because he says, that the said M. riever was accoupled, [or, never was joined] to the said J. S deceased, in lawful matrimony ; and this the said A. is ready to verify. Wherefore he prays judgment if the said M. ought to have her dower of the tenements aforesaid [or, the said messuage,] with the appurtenances &c. No. 79. Replication to the above Plea, taking Issue And the said M. says, tha^ she ought not, by reason of any thing in the plea aforesaid of the said A. above alleged, to be barred from having her reasonable dower in the tenements afore- said, [or, the said messiiage,^ with the appurtenances, because she says, that she the said M. on, &lc. was accoupled, [or, was ji.ined^'] to the said J. S. deceased, in lawful matrimony, to wit, at, &.C. and this she prays may be inquired of by the country, &c. No. 80. Plea in bar, Ne unques seise que Dower. And the said A. comes and says, that the said M. ought not to have herdower of the messuage aforesaid with the appurtenan- ces, of the endowment of the said J. S. heretofore the husband of the said M. because he says, that the said J. S. was not on the day on which he married the said M. or ever after, seised of such estate of and in the said messuage with the appurtenances, whereof she demands dower, that he could endow the said M. thereof. And of this the said A. puts himself upon the country, &,c. No. 81. Plea that the Husband is living. And the said A. comes and says, that the said M. ought not to have her dower of the tenements aforesaid, with the 476 APPENDIX. npinntcnances, becnnse he snya thai the said J. S. of whose en tlovvmcnt the srtid M. demands the same, is surviviaig and in full life^ to wit, at, &c. ; and this he is ready to verily. Wheretbre he prays judgment if the said M. ought to have lier dower of the said tenements, with the appurtenances, &c. No. 28. Replication to the above Pica, affirming the Death of the Husband. And the said M. says that she ou^^ht not, by reason of any thing in the plea aforesaid of the said A. above alleged, to be barred from having her reasonable dower in the tenements aforesaid, with the appurtenances, because she says, that the said J. S. her said husband, of whose endowment she demands the same, died at, &c. on the tenth day of, &c. and this she prays may be inquired of by the country, &c. No. 83. Pica that the Tenant has already assigned Dotver. And the said A. comes and says, that the s;;id M. her action* aforesaid thereof against him ought not to have, because he says, that he the said A. after the death of the said J. S. assigned and set out to the said M. ten acres of land with the appurte- nances, of the a-foresaid thirty acres of land, to have and to hold the same to the said M. for the term of her life, as her dower, accruing to her of and in the aforesaid thirty acres of land with the appurtenances ; to which said assignment the said M. assented and agreed ; and this the said A. is ready to verify. Wherefore he prays judgment if the said M. her aforesaid action thereof against him ought have, &c. *This plea, not denying the demandant's right to be endowed, begins and concludes differently from the preceding pleas. See Rast. 229, a. pi. 6. APPENDIX. 477 No. 84. Replication to the preceding Plea, denying the Assignment, and taking Issue, And the said M. says, that by reason of any thing in the plea aforesaid of the A. above alleged, she ought not to be barred from having her aforesaid action thereof against him, because she says, that the said A. did not assign and set out to her the said M. the aforesaid ten acres of land with the ap- purtenances, as the dower of her the said M. accruing to her of the aforesaid thirty acres of land, as the said A. in his plea aforesaid hath above alleged. And this she prays may be in- quired of by the country, &c. No. 85. Plea that the Demandant has harrtd herself of Dotoer, by joining with her Husband in the conveyance of the Premises. And the said A. comes and says, that the said M. ought not to Tiave her dower of the tenements aforesaid with the ap- purtenances, as of the endowment of the said J. S. here- tofore the husband of the said M. because he says, that the said J. S. on the tenth day of, &c. being seised of the said tenements in his demesne as of fee, by his deed of that date, duly acknowledged and recorded, for a valuable consideration therein mentioned, granted, bargained, and sold the said tene- ments with the appurtenances to one J. N. in fee simple ; and that the said M. of her own free will, with the consent of the said J. S. her said husband, testified by her signing and sealing the same deed with him, for the consideration aforesaid, relinquished and forever renotinced all her right and claim to dower^ in the said tenements with the appurtenances, to the said J. N. who thereby became seised thereof in his demesne 178 APPENDIX. as of fee, absolutely exempt* and discharged from all right and claim of dower therein by the said M ; and this the said A. is ready to verify. Wherefore he prays judgment, if the said M. ought to have her dower, of the tenements aforesaid with the appurtenances, &c. No. 86. Confession of the Dcmandanfs Right to he endowed, with a SUGGESTION that the Estate has been greatly improved and increased in Value, since the Alienation hy the Husband. And the said A. comes and sa^'S, that he cannot deny the action aforesaid of the said M. nor but that the said M. ought to be endowed of the tenements aforesaid with the appurte- nances, as of the endowment of the said J. S. heretofore the husband of the said M. But the said A. says, that the said J. S. in his life time, to wit, on the, &,c. by his deed of that date, duly acknowledged and recorded, for a valuable consideration therein mentioned, granted, bargained, and sold the tenements aforesaid with the appurtenances to one J JST. in fee simple ; which estate of the said J. N. in the said tenements with the appurtenances the said A. row has. And the said A, further says, that the said tenements, since the convej'ance thereof by the said J. S. to the said J. N. as aforesaid, have been greatly improved and increased in value by the said J. J!^. and those who have held the said tenements under him, and especially by him the said A, and tliat he has alzi-ays been ready, from the time of the death of the s:iid J. S. and yet is ready, to render to the said Tvl. her reasonable dower in the said tenements with the appurtenances, according to the just rights of the said IVl. in respect of the improvements and Increased value thereof as aforesaid. And the said A. prays that the improve- ments and increased value of the said tenements, made as *If the Demandant is not barred by the deed she lias executed, the facts by which the effect of her deed is avoided should be set forth in her repli- cation. See ante, 289, 290. APPENDIX. 479 aforesaid, may be inquired of, in such manner as ihe court kcre shall consider, k.c. No. 87. Writ of Seisin of Dower in Massachusetts. Whereas M. who was the wife of J. S. deceased, before our Justices, &c. did recover seisin ag'ainst A. of one third part of a certain messuage, with the appurtenances in C. aforesaid, in the possession of, &c. as her dower, of the endowment of the said J. S. her said husband, b}' our writ of Dower, whereof she hath nothing. Therefore We command you, that to the said M. full seisin of one third part of the aforesaid messuage with the appurtenances, you cause to be had without delay, to hold to her the said M. in severalty, by metes and bounds. We command you also, that of the goods and chattels o( the said A. within your ])recinct, you cause to be paid and satisfi- ed unto the said M. at the value thereof in money, the sum of for damages awarded her by our said court, for her being held and kept out of her dower aforesaid, and cost ex- pended on this suit, with more for this writ; and thereof lo satisly yourself your own fees. And for want of goods, &c. No. 88. FoRMEDON IN THE DESCENDER 1)1/ tico Parccners OT co-Jieirs.* Summon A. to answer unto M. S. and E. S. in a plea of Land, wherein they demand against the said A. one me^suaTC with the appurtenances in C. aforesaid, bounded, &c. vvl.ich W. H. late of, &.c. gave to one T. S the son of J. S and the heirs of the said T. of his body issuing, and which after the death of the said T. ou The pleas of both parties being fully heard, and evidences read, the case was committed to the Jury, who returned their verdict thereon, they found for the plfs. the lands and tene- ments sued for, and costs of court. It is therefore considered by the court, that the plaintiffs shall recover the aforesaid lands and tenements, and additional damages for costs of suit. The defendants appealed from this judgment to his majes- ty's next court of Appeals and Grand Assise, to be holden at Boston, before the Hon. his J\iajesty''s President and Councill for this, his majesty's territory and Dominion of New England, Nov. the 2d. 1686. And accordingly at this day the said Appellants, Elisha Cooke, John Wiswall, sen. John Wiswall, jun. and Jno. Floyd, came into this court, and defended the wrong and injury when, &c. and say, (as in the former Court they said,) that they are not guilty of the trespass and ejectment, as the appellants had objected against them : Therefore the Provost Marshall is commanded to summon a Jury to try the said case between the said appellees, Daniel Turell, lessee of Capt. Nicholas Paige and dame Anna Paige his wife, and the said Appellants, for that the said Appellants, as well as the said Appellees, have put themselves upon the Jury, &c. and the said Provost Mar- shall did, according to the command of the court, present a pannell to try the said case, and the pleas of both parties being fully heard, and evidences read, the said case was com- mitted to the Jury, viz Joseph Lynds, Sampson Sheafe, Francis Burroughs, William White, Daniel Brewer, John Brock, John Minott, Peter Woodard, William Deane, Samuel Goffe, John Hammond, and John Mosse, who being required to give their verdict in the said case, being impannelled 'and sworn as aforesaid, and the Marshall sworn to keep them, and they returned into court, and do say upon their oaths, that they find for the Appellees confirmation of the verdict of the former Jury, viz. they found for the appellees the lands and tenements sued for, and costs of courts. 6?. 498 APPENDIX. Therefore it is considered by the said court, that the aforesaid plaintiff imght to recover his aforesaid term yet to come, of and into the said two messuages or tenements, scituate, ly- ing and being at Rumney Marsh in the township of Boston, and also the said acre of pasture land in Boston all in the County of Suffolk aforesaid, with their appurtenances to enter. And now the said Apellants, Elisha Cooke, John Wiswall, sen. John Wiswal', jun. and John Floyd, appealed from the said judgment of this his majesty's court of Appeals and Grand Assise to HIS MAJESTY i.vcouncill; which appeal was allowed by the court, upon condition that ihe said appellants forthwith give bond Avith sufficient sureties to the value of one thousand pounds sterling, unto the said Capt. Nicholas Paige et al. that they the said Appellants, by themselves or their lawful attor- ney, do draw forth from the Secretary and Clarke of the said Court, copies of the Records, Judgments, Pleas, and Evi- dences on both sides, and lay the same before his sacred maj- esty in Coui'cill, and prosecute the said appeal to effect, so as to show forth, before his Majesty's government for the time being for this territory, t£'?^iipreine po-ji-er was vested in a Governor, Lieutenant Governor, and eighteen Assistants, to be elected by the Freemen : who, with the -sihole body of the freemen, composed the General court of the corporation. But at the first meeting of the general court in 1630, all the legis- lative and executive po-ji^er of the colony was delegated by the freemen to the Court of Assistants ; who seem also to have" exercised exclusive jurisdiction in all cases I'elating to the title to reed property, until the establishment of the county courts. In 1634. the treemen having become numerous, a change was made, by their electing Deputies to represent them. And the form of government thus established, continued, without any material alteration, until the dissolution of the colony in 1691. For several years after the settlement of the colony, it was governed like a numerous t'amily ot' children or depend- ents. The Judges had recoui-se to no other authority than the BIBLE, ''' and when that failed them," says their historian, "they obeyed the natural reason which con luul given them.*' Every thing was under the direction, or at least under the controlling intluence of the clergy. The administration of Justice was generally mild. But it was necessarily variable and arbitrary, and sometimes extremely severe. County courts were established in 1639; but the records of their earliest proceeding have not been preserved. In 1 641^ jurisdiction was given to a single Magistrate, where the debt. NOTE A. 507 trespass, or damage did not exceed forty shillings. This seems to be the origin of the jurisdiction of Justices of the peace, in civil suits, so general throughout our country ; though still unknown in the system of English jurisprudence, where they have cognizance of crimes and penalties only. The Charter of William and Mary, which was brouglit over by Sir William Phipps in 1G92, contained some judicious pro- visions, for the administration of Justice in the Province. And when the courts were organized under it, the chief offi- ces were conferred upon persons of much higher quali- fications and standing in society, than most of those by whom they had been held under the former charter. In the beginning of the loth century, the administration of justice had been considerably improved, and ihe jjroceedings, (espec- ially in actions for the recovery of real proj)erty,) assumed a somewhat more correct form. This improvement is chiefly ascribed to the efforts and influence of John Read, who is represented as a man of uncommon talents, profound learning, and in every point of view the first lawyer in AlassochascUs, in the early part of the last century. He made considerable exertions to introduce into the courts of the IVovince, the system of Law and Practice in Real Actions which is now ^- tablished. With that view he prepared a number of prece- dents, which are still extant under his name ; and are much more technical than most of those that have been in common use. In his endeavors to reform this part of the law, he was not very succesful. He succeeded indeed in banishing from the courts Actions on the case for the recovery of real prop- erty ; but he was unable to introduce writs of Entry in their place. And from his time, until several years since the com- mencement of the present century, though considerable im- provement has been made in some of the other branches of the law, very little advancement is seen in this. The co/n- mon remedies for the recovery of lands were sometimes denom- inated Ejectments, at other times -writs of Entry ; Jjut in form most of them were strictly neither. 508 APPENDIX. By some, these remedies have been considered a peculiar kind of action, unknown in the practice of the English courts ; and they have been denominated Jctiotis of Ejectment in the nature of Real Actions, in vehich the freehold, and not a siipposed term, is recovered. It has accordingly been said,* that " the form of Ejectment, as it is called with us, is in two manners. It either disproves the title of the deforciant, and so establishes the title of the demandant, on the want of right of the tenant : or 2d. The demandant shews his own title, and on proof there- of, if a good one, has judgment." Perhaps there is no great objection to this view of the subject. It seems, however, to imply, that the departure from the ancient forms of real actions was the result, not of accident, but design. But we have no hesitation in saj'ing, that every one who shall examine the only authentic history of our jurisprudence, the records of our judicial courts, will be satisfied that the change was wholly occasioned by the want of learning and skill in those who in- troduced it, and their indistinct notions of the law upon this subject. Upon the accession of that distinguished jurist and scholar, the late Chief Justice Parsons, to the highest judicial office in t]^ state, he made great and successful efforts to reform the practice in this department of the law. Ai;d under his auspi- ces a system was happily commenced, which has already, under the administrati'-n of his learned associates and succ ss- ors, nearly attained the maturity of the other parts of our jurisprudence. ♦ See Am. Precedents, 3d. ed. 345,346. INDEX. 0:^The numbers between brackets refer to the appendix. Jlbalcment of the freehold, 49. remedy for by entry, 64. ancient remedy by action, 176. how stated in the writ, 152. of the ivrit, count, or suit, 107. by death of parties, 199, 216. by marriage, 99, 216. as to part only, 369. pleas in, 205. when to be filed, 218. after imparlance, 104, 105. for defective service ofwrit,89. in writs of Dower, 303. Motor, descent fi-om, tolls an entry, 65. action against, 176, 178. [442.] Mridgivg the demand in the count, 204. Absence, when an excuse for not en- tering, 64. Msolute property, 192. estate in fee simple, 328. title, tried in a writ of Right, 370. Abuttals of land, 151. Accidental loss, damages for, 394. Acknowledging deeds, design of, 288. does not dispense with proving, 289. Account of profits by mortgagee, 37. Acquiescence, presumption from, 236. effect of as to titjp, 237. Actions. Droitural, 84. Possessory, 84. i?e«/, nature and incidents of, 84. of different grades, 81. Actions, Real, how commenced, 89, 92, 200. difficulty and delays of, 14,51. ancient remedy by, 84. strictness of form in, 51. varied according to the injiny, 84. obsolfttein England, 51. service of wrils in, 92. must be by Sheriff, 93. limitation of, 8,154, 361. Personal, how commenced, 92. Mixed. Assise, 187. Anceslrel. 177. Actual entry, 19, 25, 33. disseisin, 5. possession, 38. seisin, 3. by construction of law, 195, 365. and exclusive possession, 41. Admeasurement of Dower, writ of,319. Administration, granted in another state, 259. Admitdstrator, may discharge or fore- close a mortgage, 259. may recover lands set off on execution, 271. Admissiov, by pleading the general issue, 232. Ad communem legem,, writ, 144. [446.] Ad terminum qui prcEleriit, writ, 144, 182. [448.] Affinity, statement of in the writ, 157, 163, 366. 510 INDEX. Jlge of parties in a real action, 106. Aggregate corporation, action by, 171. Agreement to an eiitiy, 42. Md of the king, lUO. of a common person, 99. not allowed to a wrongdoer, 101. Aid-prayer, 99. wlien to be put in, 102. not confined to real actions, 100. by him who could uoi vouch, V63. in writs of Right, 370. seldom used in our practice, 103. Alien, entitled to dower, 280. Alienage, plea of, 205, [459.] Alienation, forfeitare by, 9. by the lord's tenant, 124. by tenant in fee simple, con- ditional, 328. in fee, by tenant for life, 181. during infancy, 185. Alienee, writ of Entry against, 154. Allegation of seisin 153, 156. in a writ of Right, 366. of taking esplees, 155. in a writ of Right, 366. Allegicmce, 206. Alteration of common law of de- scents, 60. American continent, claim to, 59. States, diversity of practice in, 57. Ancestor, who is, 162. seisin by, 32. actions upon disseisin of, 153. cannot t)ind his heir, with- out binding himself, 129. Ancestrel actions, 177. Ancient modes of tranferring lands, 1. law of warranty, 118. remedy for abatement, by action, 176. for an ouster, 48, 84. Apparent right of possession, 85. defect of a writ, 87. Appearance, 90. what defects of process waived by, 93. Apportionment of conditions, 28. Appurtenances, 153. Arrangement of things in a writ, 88. Arrears of Rent, demand of, 29. of mortgage, how ascertained, 267. Ascendants inherit by our law, 162. Assent to an entry, 42. Assets, Real, by descent, 135. Personal, 2.58. mortgages are, 258. estates pur uuttr vie in England, 161. Assigned already, plea of, in dower, 308, [476.] Assignee, writ of Intrusion by, 143. may have covenant, but cannot vouch, 134. of Lessee, action against, 182. of Mortgagee, action by, 254,257. of Mortgagor, and foreclosing 36, 261. of reversion, action by, 182. Assignment of an equity of redemp- tion, 261. of an estate, 123. of a reversion, 182. of Dower, by writ, 302, by Court of Probate, 297. Assise, action of, 14, 81, 134. writ of, 95, 141. is a mixed action, 187. by whom maintained, 188. invention ascribed to Glan- ville, 187. different modes of taking, 189. of Uower, 87. of Mortancestor, 176. of Novel dissiesin, damages ui, 390, 394. GRAiND, nature of, 142. trial by, 375. challenge in, 376. Assurances, common, 11. At targe, taking an Assise, 189. Altachment, writ of, 92, 2U0. of proj)erty, in real actions, 94, 200. Attainder |)roliibited, 287. Attorney, entry by, 45. Auditu et lisu patris, 141. Aunceslrel, Homage, 121. Auter vie, estate of inheritance, pur, 161. assets in England, 161. tenant /(ur, 161. Authority, to sell land for payment of debts, 195 not required, to make an entry, 25. except by bailiff, for rent arrear, 25. Averment, of seisin, 153, 156, 366. of taking esplees, 153, 366. Ayel, writs of, 143, 177. damages in, 391. B. Bail, not required in real actions, 92. .Bai'/f^', of lord's court, writ to, 352. lessee formerly considered, 127. Bar, to claim of dower, 288. by former recovery, 80. INDEX. 511 Sar, Pleas in, 219. in Assize, 18S. Dower, 305. Formedon,82, 342. writof Riglit,371. pleading over, in, 212. Bargain and sale of lands, 13, 30. Bargainee cannot take to another's use, 13. is seised without an entry, 16, 45. Bargainor, when considered a feoifer, 13 Baron arid Feme, entry by or for, 42, 43. seisin by, how stated, 159, Bastardy, plea of, 2i?8. trial of, 229. Bailie, trial by, 143, 374. is become obsolete, 37.5. grand assise intended to supersede, 386. Besayel, writ of, 143, 177. damages in. 391. Belterments, plea of, 229, [471.] Bill in eqmly, by mortgagor, 191, 249, 2.52. Bishop's certificate, 229. Bis petitum, 88, 151. Blood, corruption of, 287. Body corporate, action by, 171. Bond, ancestor bound by, with his heir, 129. Boundary line, 151. Breach, of condition, 22. who may enter for, 24. at what lime, 25. of covenant in lease, 52, 128,399. of mortgage, judgment for, 265, 267. Buildings and improvements, claim for, 229, [471 ] in dower, 317, [478.] Burrough English, dower in, 276. C. Capacity of Executor, writ of Entry in, 271. Capias or Attachment, 92, 200. Casual ejector, 55. Causa matrimonii preelocuti, writ, 183. Ceremonies of making an entry, 45. of transferring real property, 1. Certificate of the Bishop, 229, 306. Cestui que use is seised without an entry, 16. trust has no remedy on a mortgage, 37. vie, heir of may have a writ of Entry, 161. Challenge of Essoin, 95. ©f Grand Assize, 376. Champions in a writ of Right, 374. Chancery, relief of lessees in, 53, 400. of mortgagors, 191, 249, 252 Change of writs of Right to writs of Entry, 142. Charter, colony, 59. province, 61. Chattels, leases for years considered, 126. C/u'e/ Justice, teste of writs by, 93 Lord, holding of, 124, Church-lands, entry upon, 24. alienation of, 167. action to recover, 162, 166. Circuit Court of Common Pleas, 219. Circumstances of tlie entry, stated in the writ, 145, 152. Circumstanlial evidence, 235. Claim, where one cannot safely en- ter, 17. Claiming title, 38. Clergyman, writ of Enti-y by, 162. on his own seisin, 193. Co-heirs, entry by, 40. suit by, 98. Collateral heir, action by, 156. descent, statement of, 367. warranty, in a writ of Right, 372. has ceased in our law, 135. Collusion, replication of, 234. of demandant and tenant, lOfi. Colony, charter, 59. Colour, in Assise, 190. in pleading, 228. Commencement of a suit, 92, 200. of an estate by wrong-, 143. byright, 144, 181. Common essoin, 95. law the foundation of our juris- prudence, 57. Pleas, writ of Right in, 358. recovery, 11, 118, 136. * plea of, in formedon, 344. tenants in, actions by, 198. Comparison of titles, 234. Conclusion of count in writs of En- try, 156. in writs of Right, 362. Concurrent seisin or possession, 39, 383. Condition, apportionment of, 28. who entitled to benefit of, 23. part good and part void, 28. of re-entry for rent, 28. entry for breacli of, 22, 74. 512 INDEX. Condition, entry, at what time, 25 in estates tail, 329. Condilional estate in fee simple, 328. judgment on a m )rtgage,254,265. when not allowed, 268. Confession of lease, entiy and ouster, 46, 55, 78. has effect of an actual entry, 73, 79 Consent ride, 55, 78. has the pffect of an entry, 73, 79. Constable cannot serve a writ of En- try, 93. Construction of feudal grants, 123, 125. of deeds, liberal, 12. of law, actual seisin by, 195, 365, 383. Constructive possession, in trespass, 414. Consummate tenant by the curtesy, 3S1. Continval claim, 17. Continuance, lit 4. not of course, 105. Contract of lessor and lessee, 127. for purchase of land, 231. Convenlio innrit legem, 120. Conusee of a fine, 281. Conveyance by demandant, plea of 226', [470.] with warranty, plea of, 343, [482.] Conveyances, rightful or tortious, 11. liberal construction of, 12. by matter of record, 16. by deed, perfected without en- try, 16. with us, no cause of forfeiture,ll. Coparceners, suit by, 197. inheriting as, 61. Copy holders, disseisin by, 8. Coroner, when to serve process, 93. Corporation, action by, 171. Corporeal hereditaments, 151. Corruption of blood, 287. Costs, not allowed at commo'n law, 223. when writ abates by death, 217. Co-tenant, possession by, 40. Count, in real actions, 141. requisites of, 149. should show where land lies, 87. in writs of Dower, 302. Formedon, 333. Right 3.57, 362. Counter plea, to aid prayer or receit, 103 to parol demurrer, 109. Counter plea, lo view, 111. to voucher, 132. to warranty, ib. County, entry or seisin limited to, 4, 42. Court, Baron, writ of Right, 351,353. of Chancery, relief to lessees in, 53, 400. of Com. Pleas, writ of Right, 353. of the United States, 57. of the Colony, 61. Cousinage, writ of, 143, 177. damages in, 391. Covenant, express, 129, 136. implied, 126, 136. real, doctrines of 1 19. derived from warranty, 118. personal, annexed to the realty, 136. remedy by, 133. action of, substituted for voucii- ers, 119. a preferable remedy, 134. writ of, 52. Crown of England, claim of to .\mp- rica, 59. Cut ante divortijim, writ of, 144. Ciii in vita, writ of, 144, Cui. PER and, writ in, 14S, 172. Curtesy, estate by, in wild lands, 33. what seisin of wife, to give, 283. without actual entry, 381. Custom of Burrough Engli'ih, 276. of Gavelkind, dower by, 276. Customary law of Normandy, 277. Customs, of German nations, as to dower, 274. D. Damagks in real actions at common law, 390, Since the stat. of Gloucos(pr,391 . in aiicestrel writs, 391 when recovered by heirs, 392. for accidental losses, .394. how estimated formerly, 3!>3. increased or diminished by the Court, 394. not recoverable now, in real ac- tions, 94, 224. except in Dower, 244. allowance for improvements,395. for waste, pending a real action, 202 Danger of joining many demandants, 2(K>. Date of writs, 93. Death of demandant, plea of, 216, [467.] INDEX. 51^ Death, of demandant or tenant, in Dower, plcii of, .■-f20. ahatemeiit of real actions by, 199. Debt, payment or tender to mortga- gee, plea of, 268, [454 ] Declaration or count, requisites, 149. Decree in equity, relief by, 53, 4(M>. to stay Ejectment, 83. Dedi et toncessi, effect of, 1'23, 125. De Jotiis, statute, construction of, 328. Deeds, liberal construction of, 12. of conveyance require no en- try, 16. Default, judgment by, 244. DeJ'easi'/le estates, 70. Dtjf.amnce, mortgage by, 254. Defeuling an estate by entry, 27. Df;':xt of service, exception for, 93. Dtj'ectire statement of pedigree, 157. title, not cured by verdict, 244. Deforcement, wiiat, 50. effects of, 70. remedy for, 145. how stated in tlie writ, 154. Degrees in writs of Entry, 147, 169. in vouching, 131. Ddnys in real actions, 96, 133. Ddiiery of lease, to bring Ejectment, 54. Demand of Dower, 301. Rent, 26. when to be made, 27. whereto be made, 29. Demandant, death of, plea, 216, [467.] marriage of, plea, 99, [467.] release by, 99. Demesne, as of fee or freehold, 153. Demise, in an Ejectment, 83, 406. and grant, irajily a covenant, 128. Demurrer, filing of, 219. Demy-mark, tender of, 378. Denial of title, by tenant, 3. Descender, Formedon in, 82, 326. Count in, 333. Descent, of estates, 32, 60. deducing title by, 366. Descents cast, entry tolled by, 7, 64, 66. do not take away title to enter, 66. Description of land sued for, 151. J)e/amcr, forcible, 21. Determinable estate, 180. Determination of estate, writ founded on, 181. Detinue of charters, writ of, 98. plea of in Dower. 310. 65 Devise, void unless devisor dies seis" ed, 31. not defeated by fraudulent sale, 32. Devisee, seisin of, 72, 194. Devisor, seisin of, 31. not evidence of seisin by devisee, 194. Dilatory proceedings in real actions, 96. disallowed in our courts, 97. Disability, pleas in, 205. writs arising upon, 183. Disaffirmance of reversioner's title, 3. Disclaimer, plea of, to the wfit, 214. to the action, 203,221. effect of at common law, 222. Discontinuance of estates, what is, 49, 68, 167 conveyances w^hich work, 69. how caused, 68. effects of, 70. has ceased in our law, 70. of suits in real actions, 81, 205. Discontinuing an action, 81, 205. Discretion of the courts, 105. Dispoiition, different of real and per- sonal properly in England, 250. Dispossession distinguished from dis- seisin, 67. Disseisin, what is, 1, 5, 49. or trespass, 40. mere entry does not amount to, 66. transfers the fee by wrong, 6. title acquired by, 67. when not qualified, 7. by one rightfully in possess- sion, 8. by entry under a void con- veyance, 12. without knowledge of dis- seisee, 226. of uncultivated lands, 39. by co-heirs, 41. by several jointly, 204. actual, what is, 5, 14, effect of, 6. necessary to toll an en try, 7. to acquire a free- hold, 15. by election, 6, 7, 14. remedy for by entiy, 64. trespass for, 245. Writs of Entry sir. 140, 143, 145. damages in. 391 514 INDEX. Disseisin, Writs of Entrv, sur, in the nature of an as- sise, J45, 58. in the quibus, 146, 166. application of, 157, 163. examples, 164. PER, 147, 169. or ^uiBus, 165. PER and cui, 148. or QuiBus, 165. POST, 148. or ie unques accouplt, 306. Tie unques seisie, 307. husband living, 307. joint-tenant, 309. relinquishment, 307. elopement, 310. detinue of charters, 310. Verdict, 311. .Judgment, 311. Damages, where husband died seised, 312. where husband had alien- ed, 314. of what improTements, 314. Writ of seisin, 317. Assignment, 317. by metes and bounds, 318. death of parties before judg- ment, "120. waste prohibited, 320. warranty implied, 321. Droitural actions, 84. Duel, trial by, 142, 374. Dumfuit infra ttlatem, writ of, 144. non compos mentis, writ of, 144. Duplicity of plea, 304 Dwelling house, entry upon, 45. E. Easement, action for land subject to, 192. Ecclesiastics, sehed jure ecclesice, 69, discontinuance by, 69. Ejectionejirma, writ of, 53, 178, 399. Ejectment, history of remedy by, 52, 4U0. change of practice in, 53, 55, 400. right of entry required in, 55. former recovery no bar in, 83. form of, the same for all injuries, 79. freehold not recovered in, 83. has sujierscded real actions in England, 51. i INDEX. 515 Ejector, casual, 55. Ekdion of remedies for an ouster, 77, 86, 164. disseisin by, 14. to make an act, a disseisin, or tres- pass, 7. of demandant, as to betterments, 229. jE/egiV, tenant by, 188. Elopement, plea of in dower, 310. 'Endou-ment, ancient modes of, 275. England, claim to America, by, 59. real actions obsolete in, 51. English courts, ancient practice in, 89. Entails, origin of, 329. Entire-tenure, plea of, 212. Entrv, ceremony of, 20, 45. seisin acquired by, 15. what amounts to, 43. wiien an efl'ectURl remedy, 75. by husband or wife, 43. by an infant, 185. by attorney, 45. by a stranger, 74. by lessee for years, 45. by co-tenants or co-lieirs, 40. by grantee of re%'ersion, 25. at what time, 25. by command of a stranger, 19. to receive seisin after judgment, 15. when sufficient without claim, 19. without prior authority, 25. to another's use, 41, 42. title of, not tolled by descent cast, 66. actual, when necessary, 19. by construction of laws, 195. when to maintain a writ of En- try, 193. not to maintain Ejectment, 46, 73. resistance to, 44 extent of its effect, 42. into a part of (he land, 3S3. effect of, limited to the counlv, 7, 42. for condition broken, 15. 22, 74. effect of, 27, 74. defeats all rights and inci- dents, 27. when necessary, before ac- tion, 74. for non-payment of rent, 25. to foreclose a mortgage, 34, 37, 253. to rebut a title. 73. Entry, to avoid the statute of limita- tioiK, 47, 68. to abate a writ, 216. under a deed, effect of, 41. puts an end to wrongful estates, 8. to former ouster, 77. not required to perfect a deed, 16. by mistake is no liisseisin, 7. intent of to be regarded, 19, 20. tolled by descent, after actual disseisin, 7, 64, 66. where no action lies, 72. right of, required to maintain "Ejectment, 5-5, 164. limitation of, 8. 46, 67. Writs of, 140, 143, 145. of different classes, 142. degrees in, 147. count in, 149. describe the injury, 76, 80. against joint disseisors, \99. changed to writs of Right, 141. damages in, 391. in the nature of an Assise, 145, 158. in the quibi s 146, 166. application of, 157, 163. examples, 104. in the pf.r, 147, 169. or (iuiBus. 165. iu the PER and cui, 148. or QUJBUS, 166. in the post, 148. or QCiBus, 166. a common remedy, 175. ad commvncm /f^em, 144,181- ad te)-minum qui jnwrteriit, 144. to foreclose mortgages, 253. 256. by executor, for lands set off on execution, 271. by one not named, plea of to the writ, 214. pending the action, plea of, 215. Forcible, 20, 21. superseded writs ofAssise,190. Efptity, rule of respecting mortgages, 251. relief of lessee in, 53. of mortgagor, 249. of redemption. 192, 250. conveyed by second or third mortgage, 262. Error, by defect of tlie verdict, £44. £sp/ee5, statement of, 149. seisin by taking, 155. 516 INDEX. Esplees,(i\si\ncVions with respect to,364. how alleged in certain cases, 3ti5. in writs of Riglit, ^64. chieHy re2;ardetl as evidence, 365. Essoins, what, 90. the several kinds, 94. not allowed in Assise, 187. Eslate in lands, when revested without entiy, 74 wrongfnl defeated by entry, 8. divested by entry for condition broken, 22, 27. iminediately defeasible, 70. Estates-tail, origin and nature of, 329. discontinuance of, 69. how barred by our law, 11, 69. for years, unknown in the Feudal law. 52. not the subject of warranty, 130. joint or in common, 210. Estoppel, 81, 81. bv disclaimer, 225. Eviction, u'liat, 120. fear of, 132. notice of to warrantor, 138. indemnity for, 119, 131. Evidence, naked possesson, 38. concurrent or exclusive posses- sion, 39, 41. possession by co-tenant, 40. survey and marking lines, 40. of seisin, in writs of Entry, 193 in writs of Right, 380. witliin statute of limitations, 241. under general issue in real ac- tions," 226, 232. to entitle demandant to recover, 233. release, in a writ of Right, 384. documentary, defect of, 236. Presumptions, 235. their foundation, 240. pedis positio, 381. taking csplees, regarded as, 365, 381. in writs of Entiy, 232, 234. Right, 384. in action for mesne profits, 408, 423. of long acquiescence, effect of,287 Exception, by plea in abatement, 201. by motion, 201. for defective service, 93. when waived by appearance, 93. Exceptions not favored in Assize, 188. Exchange of real property, 33. Exclusive possession, 41. dominion over property, 192. Excuse for non-appearance, 90. Executed contract, lease considered, 127. Execution of mesne process, 93. final process, 246 levy of upon land, 195. pi ocess of, 245. action for land set off upon. 195. in favor of executor, 27 1. Executor cai.not prosecute or defend in a real action, 199. power to sell land, 195. action by, on a mortgage, 253, 256. for land set off to him on execu- tion, 271. may discharge or foreclose a mortgage, 2-59. Expectancy, estate in, 3, 329 Expiration of a lease, action founded on. 182. Express contract of lessor, 127. condition, U) covenant, 129. warranty, 125, 129. auhexed to conveyance of free- hold, 130. Extent of seisin acquired by an entry, 38. of an execution, 195. F. Falsifying a recovery, 127. Ftar, what an excuse for not enter- ing, 18. Fee, disturbance of, 3. in expectance, 329. limited altera fee, 3.30. simple, absolute, or conditional, S28. tail, origin and naluie of, 320. Feme covert, entry by, 47. saving in favor of, 64. entry of husband for, 42. Fencing, effect of, ^K). Feoffee to uses, wife of not entitled to dower, 281. Feoffmtnt, ancient mode of transfer, 1. in presence of the pares, 3. nature of the ceremony, 5. necessari ly transfers the freehold,8. not in use with us, 11. implied warranty confined to, 130. Fcstinum remedinni by assize, 187. Fend, alieiiation of, 9, 124. Feudal relation of lord and tenant, 121. investiture, 2, 123. tenures, 118, 122. law, [leculiar features of, 9, 108. restraints of, 248. forfeitures by, 9, 286. INDEX. 517 Feudal doctrines, rejected here, 57, 61. j warranty, a consequence of ten- ure, 121. could not be restricted, 128. i Feudatory obligations of, 121. j Feudum mililnre, 106. Fictions, in Ejectment, 55. in Writs of Right, 352. Fictitious proceedings, objection to, 56. Fine, alienation by, 11. not in use here, 11. entry to bar, 72. Fisliert/, grant of may be presumed, 238. Flails, action to recover, 192. Forcible entry, 20,21. effect of, 22. and detainer, process of, 21. siirpersed writs of Assise, 190. Foreclosing mortgages, 34, 253. time of, 36. Forfeiture, by alienation, 9, 11. what conveyances create, 11. not to affect an innocent pur- chaser, 9. by denial of reversioner's title, 3. of lands for crimes, 287. FoRMEnoN, writ of, 321. of three kinds, 322. lies for any property that may be entailed, 324 limitations of, 326. incidents of this action, 325. no entry required to maintain, 194. against pernors of the profits, 323. statement of gift and title, 325. in the descender, 326. special writs of, 331. count in, 333. allegation of seisin, 33.5. of esplees, 335. in the remainder, 338. when the proper remedy, 338. profcrt when required, 340. allegation of esplees, 340. in the reverter, 335. count in, 3.37. lies at common law, 336. plens, in abatement, 341. puis darrein continuance, 341 in bar, 342 general issue, 341. special, fine levied, 344. feoffment and warranty, 343. release or confirmation, 344. voucher and warranty inj345. judgment in, 345. FoRMEDON, mesne vrofils in, 349. establishes title only from the recovery, 349. Former judgment in real actions, 80. recover)' in, 82. no bar in Ejectment, 82. Forms of ancient writs, 139. Fourcliing by essoin, 96. Franchises, disturbance of, 14. disseisin of, 14. recoverable in Assize, 188. Frank-marriage, 3:17. Fraudulent feoffments, 209. Free socage, charter of Massachusetts colony, 59. Freehold, conveyance of, 2. acquired by actual seisin, 15. demanded in all real actions, 89. recovered by writs of Entry, 191. not by an Ejectment, 83. defeated by entry for condition broken, 22. tenant ot, 89 title to, how determined by Eject- ment, 54. Full age in real actions, 106. Fuluro, freehold in, 16. G. Gage and safe ))ledges, 90. Gavelkind, teaure of, 60. entails of, 331. dower by custom of, 276. General imparlance, 103. special imparlance, 104. issue, in writs of Entry, 220. what admitted by pleading, 232. Germans, dower among, 274. Gift of lands, feudal, 123. * in frank marriage, 327.. Give, when a personal warranty, 126. and grant, effect of the words, 123. Grades, different of leal actions, 81. Grand assize, 142. trial by, 375. challenge of, 376. cape, 90. Grantee of lands in feudal tenure, 123. Grantor, obligation of to warranty, 123. Grants, after stat. of Qxiin emplores, 124. when to be presumed, 238. Great assize, 142. trial by, 375. Guardian in chivalry, Dower lies against, 300. in socage, lies not against, 300. to spendltirifts, 185. n. feudal entitled to profits, 108. 518 INDEX. Guardian, action against by ward, 234. Habeas corpus, in view, 1 12. Habere facias possessionem, 53. seisinam in writs of Entry,245. in writs of Right, 388. entry to execute, 15. Hnbitnlion, right of, 393. Heir, title of, how stated, 157, 366. Heirs, are seijsed m law before entry, 2. lineal or collateral, 197. actions by, 197 may join in suit, or fever, 197. damages recovered by in writs of Entry, 392. against, 392. writ of Entry by, 153, 159. in tlie PER, 171. writ of Intrusion by, 143, 179. writ of R'ahl by, 353. demand of Dower again.st, 301. writ of Dower against, 301. of him who was rtc/Ho//// seized, 32. how liable, on warranty of ances- tor, 121,123. when bound by warranty of an- cestor, lo5 re))utted by warranty of ancestor, 130. without assets, 135 cannot be bound, uithont the an- cestor, 129. have no concern with personal estate, 252. Hereditaments, corporeal, 150. incorporeal, 15i. High treason, corruption of blood for, 287. Higlnrai/, action to recover, 192. History of Ejectment in England, 52, 400." of real actions in Massachusetts, .396. Holding land of the chief lord, 123. by feudal services, 122, 124, with or without homage,123. over by tenant, 72. by virtue of possession and im- provements, 2.30. Homage aunceslrel, 121. obligation of lord who received, 121. charged all lands by descent, 122. Human nature, its infirmity the ground of ]ircsumptions, 240. House, demand of rent at, 29. Husband, entiy of for wife, 42. for hi/ wife, 43. Husband, joint-tenant, wife of, not dowable,"281. tenant by the curtesy, writ of En- try by' 158. still living, plea of in dower, 307. and wife, statement of sebin by, 159. writ of Entry by, 154, [439.] I. Ideot, limitation as to, 47, 64. Immediate feofl'ee or donee of disseisor, 65. alienee, trespass against, 416. Immorable property, 150. Imparlance, general, 103. special, 103. most special, 104. Implied covenant, 126, 136. how restricted, 129. warranty, 123. by feoffment, 130. in dower, 321. Imprisoned persons, limitation as to, 47. Improremcnts, holding by virtue of,230,. allowance for in real actions, 395. Incidents of real actions, 94, 355. of writs of Right, 377. ^ Aidpraycr, 100. Essoins, 94. Imparlance, 103. Parol demurrur, 106. Receit, 102. Summons and severance, 98. View, 110. Voucher, 100, 118, 134, 136. Incorporeal rights, disturbance of, 14. hereditaments, 151. not divested or restored by entry, 46. Increased value by improvements, 244, 246. in cases of dower, 314. Incumbrances on land, 120. hidcfcasable title not necessary to re- cover, 192. Indemnity for eviction, 119. Indictment for forcible entry, 22, Individual right of inheriting, 196. Indorsement of writs, 93. Infancy, privileges of, 47, 105. when not allowed, 107. disabilities of, 105. entry during, to revest estates, 185. Infant, entrv for, 42. entiT by, 47, 64, 185. after coming of age, 185. feotinient by, ISO. remedy for alienations by, 185 INDEX. 519 Infant may bring what actions, 105. InfinnUy of human nature, ground of presumptions, 240. ■ Inheriting, right of, 196. Injunction to stay waste, 201. ejectment, 83. against lessor, 53, 4ti0. Injuries to real property, 48. amounting an ouster or not, 48. statement of in writs of Entry, 76, 152. Intent, eflect of as to an entry, 19, 43. as to an ouster, 43. Intestate, mortgage to, 259. Intruder not within st. 32, H. 8. c. 33, . 65. action against, 180 Intrusion upon the freehold, 49. remedy for by entry, 64. writs of, 143, 179. or in tiie quibus, 168. Investiture of lands, 2. offends, 123. Issues, destraining by, 91. Jewish code, 60 Joinder of parties in real actions, 97. hazard of, 200. Joint disseisin, 2(»4. disseisors, actions against, 199. holding, admission of, 204 tenancy of iiusband, plea of in dower, 309. tenant, jiossession by, 40. wife of, not entitled to dow- er, 281. Joini-tenare, plea of, 210. [462] Jointure, what will i)ar dower, 291. Judgment in writs of Entry, 244. Jias relation to the |i!ea,225. again.st demandant, eflect of, 359 how far conclusive, 80, 359. over, against vouchee, 132. in Dower, 311. in Ejectment, confers no title to the freehold, 83. in Formedon, 345. in writ of Right, 387. by default, 244. conditonal, on mortgage, 254, 265. of course, when entered, 245. Judiciary of the U. States, 57. Jurisdidion of Sup. court of the Unit. States, 57. Jurors to view. 111, 113. to form the grand Assise, 375. Jury should pass on all the points in issue 244. Jury, duty of, as to improvements, 244. presumptions by, 235, 239. trial by, 243. view by. 111. in our practice, 113. Jus duplex, or droit droit, '657. possessio7iis, not sufficient in a writ of right, 357. or proprielalis, 357. Justice, delay of in real actions, 133. requii'es seller to state defects of title, 119. K. Kindred, lineal or collateral, 162. King, prayina aid of, lOU, 134. King's charter to Massachusetts colony, 59. province, 61, [506.] grant confers actual seisin, 16. Knights of the grand assise, 375. L. Laches, what is considered, 64. when excused, 18, 47. Lands, eflect of ejitry ujion, 1. in dittereiit counties, 4, 42. set ott" on execution, I9d. description of in writ of entry, 151. grant oi, when presumed, 238. recovery of, when sold by execu- tor, 195 when set off, upon exon, 271. when mortgaged, 253. over in value against the vou- chee, 132. Ministerial, alienation of, 167, Law, ancient, of real actions, 51. modern, frequent change of, 57. of descents, bO. of warranty, 118. Lease, cannot be made by one who is disseised, 30. delivery of to try an Ejectment, 54. to m ;n refjuired, 358, 364. founded on mere right, 364. in the count Baron, 351. removal to common Pleas, 351. considered a commission to the lord, 368. Qia'a dominnsremisitcuriam, 352. Patent, where brought, S52. against several tenants, 367. Close, nature of 356. requisites to maintain, 3-57. count in, 357, 362, [487.] what must be alleged, 358. seisin in fee and right, 364. allegation of esplees, 364. deducing title, 366. dilatory proceedings in, 355. aid prayer in, 370, [456] absolute right decided in, 370. Pleas in abatement, 369. in bar, 371. special, seldom used, 371. Issue upon the mere right, 372. evidence under, 372. Joining the mise, 373, [489.] Trial in, 373. by a common jury, 374. by grand assise, 375. by battle, .374. champions, 374. Incidents and delays in, 377. tender of demy mark, 378. Evidence, upon the mere right, 380. of seisin and esplees, 381. pernancy of profits, 385. Verdict, form of, 385. Judgment, form of, 387. writs in nature of, 351. de rati onabili parte, \n. 'Rightful conveyance, 11. INDEX. 525 liiglilful occupancy, 38. | liit^lits, incorporeal, disturbance of, 14. to easements, presumption of 238. ' S. >Sale of lands by executors, 195, 258. Seisix, how acquired, 1, 15. | cdmmeiiring by light, 144, 181. j by wrong, 6, 145. in fact or in law, 2. I transferred rightfully, 5. by wrong, 5. revested by entry, 64. acquired without entry, 16. livery, of how given, 5. to what extent acquired, 38. for an instunl, 75, 163. will not maintain a writ of riglit, 365. may change tlie remedy, 76. by taking esplees, 155. actual or expectant, 3. actual by construction, 195, 365, 383. in possession or remainder, 2. several, joint, or in common, 2. cannot be concurrent, 39. of corporeal property only, 13 of husband, to entitle wife to dower, 279, 282. of wild or vacant lands, 33. necessari), to convey the estate, 30 to devise it, 31. to transmit by descent, 33. of devisee, 72. of mortgagee, 254. of demandant, writ upon, 153, 159. of ancestor, writ upon, 152, 16u. of predecessor, writ upon, 161. liow stated, 153. as of fee and right, 357. as of fee. 153. as of freehold, 153. denial of by plea, 371, [489.] SesinafacU slipiteni, 32. not in Connecticut, 34. Stisure of land forfeited, 9. ^Service of writs in real actions, 89, 92. 201. must be by sheriff or his depuly,93. Services, feudal, 122. Several-tenure, in writ of Entry, 203, 212. in writ of Right, 368. Sett-off, in action for mesne profits, 424. Severally, estates in, 203. seisin in, 2. mortgages in, 261. Sheriff', to serve writs in real actions, 93."' Slwwei-s to the jury who view, 112, 115. Siclcness, essoin of, 95. Socage tenure, of colony charter, 59. parol demurrer in, 1U8. Sole or entire tenure, plea, 212. in writs of entry, 212. in writs ot Righ;, 368. Special bail in real actions, 9-. demurrer for misstatement of sei- sin, 159. imparlance, 103. matter of evidence in writs of Right, 384. plea of non-tenure, 207, [460.] Specijic relief to lessees, 53, 4U0. STATtTTKS, English. 20 H. 3, ch. 1, Merton 312. ch. 8, 361. 52 H. 3, ch. 16, Marlbridge 390. ch.30, 148,173. 3 Ed. 1. ch. 17, Wesiminster 1st, 95 ch. 39, 361 ch. 43, 96 ch. 44, 95 4Ed. l.ch. 6, 123 6Ed. l.ch. 1, Gloucester 390 ch. 10, 96 13Ed.l.ch. 1, Westminster 2d. 326 ch. 4, 35i» ch. 34, 293 ch. 47, 146, 159 ch.48, 110,301 18 Ed. 1. Quia emplores, 124, I29 34 Ed. 1, De conjunclim feoffalis 21 1 25 Ed. 3 ch. 6. " 208, 369 1 R 2. St. 2. ch. 9, 2O9 4 H. 4. ch. 7, 2O9 12 Ed. 4. ch. 12, 30i 1 H. 7, ch. 1, 323 21 H. 8. ch. 15, 127 27 H.8. ch. K>, 272 32 H. 8. ch. 1, 177 ch. 2, 36i ch. 22. 69 ch. 33, 65,66,349 1 Eliz. ch. 15, 69 13 Eliz. ch. 10, 69 18 Eliz. ch. 14, 325 31 Eliz. ch. 3, 9i> 21 Jac. i. ch. 16. 46, 67, 326 4 &. 5 Anne, ch. 16, 47,67,112 3 G. l.ch. 25, 112 14 G. 2. ch. 20, 161 10 G. 3. ch. 50, 91 526 IISDEX. Statutes of Massachusetts. 1782, ch. 11 § 6, (A.ljatemeiil.) '218. 1783, ch. 24. § 8, (Dower.) 1^92. ch. 36, § 4, (Ijowe.-.) 279. ch. 37, § 4, (Deeds.) 16. ch. 38, § 7, (Spendthrifts.) 185. u. ch. 39, § 6, (Writs.) 93. ch.4U. § 1. (Dower.) 71,301,302, 313 § 2. (Dower.) 319. ch. 44. (Coroner.) 93. ch. 52. (Suits by heirs.) 197. 1784, ch. 28. (Writs) 92. ch. 28. § 7. (Dan-.aj-'^es.) 312. ch. 28. s^ 9- (Oosls.) 388. ch. 28, § 11, (indorsing writ.) 92. 1785, ch. 22. § 1. (Mortgag:e.) 255, 2u5. ch. 22. § 2, (Mortgaj^e.) .34. ch. »)1. (Joint esta e>.) 21U, 281. ch. (i2. (Suits by heirs.) 9o, 197. ch. 69, § 3, (Dower.) 285. 1786, ch. 13. (Liinitation.j 361. ch. 13. § 4, (Limitation.) 65, 67, 326. 1788, ch. 51. (Mortgages.) 252. ch.51. § 3, (Executors, kc.) 271. 1789, ch.2. (Double portion.) 61. 1791, cii. 17. (Kevicws.) 360. ch. 60, (Estates tail.) 69, 135. 1792 ch. 17. (Service of writs.) 93. 1795, cli. 53. (Pews.) 150, n. ch. 75, (Service of writ.) 92. 303. ch. 75. §2. (Dischiimer.) 203,221, 224. ch. 75, § 3. (Waste.) 201. 1797, ch. 50. (Service of writs.) 89, 93, 201, 303. 1798, ch. 77. § 1. (Mortgage.; 34. 1805, ch. 90. (Tenant pur autur vie.) 154, 161. ch. 90. § (Dower.) 279. 1807, ch. 75. § 1, 2. (Limitation.) 154, 157, 193,361. ch. 75. § 3. (Betterments.) 246, 421,425. * 1809, ch. 84. (Betterments.) 230, 246. 1811, ch. 33. (Common Pleas.) 219. 1812, ch. 94. (Alien. Dower.^ 286. 1818, ch. 60, (Spendthrifts.) 185, n. 1819, ch. 144. (Improv.Mncnts.) 230. 1820, ch. 53. ^Reviews.) 360. ch. 54. § 1. (Dower.) 298. ch. 79. (Common Pleas.) 219. Stipilem, scisinafncit, 32, 34. Strangers to title when not privileged, 237. Stultifying one's self, 184, note. Subinfuedttiion, introduction of, 122. Subinfuedalion, liow jirevcnted, 124. Subsliiutioii of a tenant, 123. Successor, action by, 161. entry by, 24, ^vrit of Intrusion by, 143. Sufferance, estate at, 72. tenant by, 72, 182. • Suit, how commenced, 92, 200. termination of, 247 Suinmoiis, process by, 89, 92, 200. and severance, 9S. no longer lies, 198. ad wurrahtisuiidum,l'7. applicable to the particular injury, SO. in the quibus, 146, [427.] in the nature of an Assise, 146. 158. Writ of Entrv, '■nr disseisin, 145. in thf;PER, 147, 169, [433.] who may bring, 170. heir, 171. successor, 172. intlie I'ER and cui. 148, 172,[436.] by heir or successor, 172. in the post, 148, [439.] when brought, 173. by heir or successor, 174. form of the count, 174. ad communem /cgfMi, 144, [446.] or in the quibus, 166. ad teruiiinim qniprcr.teriit, 144, 182. peculiar conclusion of, 182. to foreclose a mortgage, 253, 2.56. by executor, for land set otT upon, execution, 271. (fFormcdon, 32\, [479.] Intrusion, 143, [443.] .Vorl ancestor, 143. Quure ejecil infra terminum, 52, 399. Qnod ei deforcial, 359. Right, 14<»,'350. close, 356. patent, 357. lies after a writ of Entry, 82, 86. the only real action now used in England, 51. difficulties attending, 56. Wrong, nature of, stated in real actions 149. Wrongful estate may become indefea- sable, 8. 86. Wrongfully acquired, seisin, 147. withii.4d, 148. Wrongs amounting to an ouster, 48. cannot be qualified by disseisor, 6, 75. not to be presumed, 40. Year, complete, 18. and day, claim within, IS. Years, lessee for, action against, I+l. tenant for, formerly considered a mere baililf, 127. entry by, 45. action against, 183. Yielding and paying, construed a cov- enant to pay rent, J 28. 3 s ^wwEi^ir^ ^5MEUNIVE1?% %WAINIl-3ftV^ ^UBANCE^f^ %133NVSO# %^13AWfl•3«J^ ^lUBRARYQc ^6*; ^^•UBRARYO?. ^HIBflARY(7/. ^\V\!UNIV!RS/^ ^l^ u,..H.jJO^ %OjnV3iO=^ ^J^DNVSOl^ .5X\rUNIVER% {mu-ip- ^^DNVSOl"^ -5^iiiBRAirr/?/ ^JIIVDJO'^ xlOSAN s^ rt I f^-f ^ I"!©! |!^i to o AMEUNIVER% ^iosANCEu:r^ &Aavaan-# ^^JUVDJO"^ ^0FCAIIF0% ^.0FCAIIF0«',I^ I*!!®! 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