much more effectual remedy. A judgment in ejectment is no bar to another action for the same land and upon the same title; but a final judgment in a writ of entry is a bar to another action of the same kind, and by the abolition of writs of right and formedon, there is no action of any other kind by which the matter decided in the writ of entry can be again litigated between the same parties; and of course, the judgment obtained in the writ of entry is conclusive. The statute of James I., as two twenty years' possession, was not adopted in New Jersey, by force of the Act of 1727, the action of ejectment having always been considered on the same footing as the writ of right.1 § 341. To constitute a complete title to land, there are two requisites, namely, the right to possession and the right to property, or, as it is expressed in Fleta, juris et seisina conjunctio;2 and real actions are designated and limited in reference to the interest claimed by the demandant. They have been divided into actions droitural, or those in which the demandant sues in respect of his mere right (jus proprietatis), his possessory claim having been lost; and into actions possessory, in which he sues upon his possessory right, not being under the necessity of proceeding upon his mere right. The former, when brought upon the demandant's own seisin, are droitural, but where the demandant claims a mere right by descent, are ancestral droitural. The second are possessory, upon the demandant's own possession, and ancestral possessory, when claiming a right of possession through an ancestor.8 § 342. Before the statute of 32 Hen. VIII., as has been already shown, actions brought for the recovery of land, and other things real, were limited from some particular memorable event; and that by that statute a more proper course was taken, and one calculated for all times, it limiting such actions, as it has been expressed, "ac 1 Gardner v. Sharp, 4 Wash. (Cir. Co.), R. 609. 2 L. 3, c. 15, s. 5; Atkins v. Horde, 1 Burr. R. 60; 3 Cruise, Dig. 483; 2 Hill. Abr. Real Property, 177; Smith v. Lorillard, 10 Johns. (N. Y.), 333. 8 Rosc. on Real Actions, 2; Markal's case, Rep. 3, b. See the various species of writs growing out of the above divisions, enumerated, and eo nomine, abolished by sec. 36 of the Stat. 3 and 4 Will. IV., in Appendix, p. xiv. 4 Ante, Ch. II. 1 cording to a fixed interval of antecedent time." It provided, that where in any writ of right, or any action possessory, the demandant claimed upon his own seisin, it must be a seisin within thirty years back; and where, on the seisin of his ancestor, it must (in a writ of right) be a seisin within sixty, or (in a possessory action) within fifty years. Afterwards, by the statute, 21 James I. c. 16, it was enacted, that all writs of formedon should be brought within twenty years after the title or cause of action first descended or fallen; and by the same statute, it was enacted, that no person should make entry into lands, tenements, or hereditaments, but within twenty years after his right should first accrue. From this last enactment it resulted, that the same period of twenty years also became the limitation in every action of ejectment, inasmuch as the right to bring that action is founded upon the right of entry. Thus stood the law of the limitations of real actions in general, during the whole of the long period that elapsed, from the 32d year of the reign of Hen. VIII. to the late reign of Will. IV.1 § 343. The writ of droitural, or writ of right, is denominated the highest writ in the law, and lies for him who is entitled to an estate in fee-simple, and not for him who has a less estate. For an estate in fee-simple, it lies concurrently, with all other real actions, in which an estate may be recovered; and also lies after the other remedies are lost, being as it were, an appeal to the mere right, where judgment has been had as to the possession, in an inferior possessory action. 1 3 Steph. New Com. 546. 2 3 Bl. Com. 189. And see Stat. 32 Hen. VIII., in Appendix, p. i. 8 See the Stat. in Appendix, p. iii. 4 See ante, Ch. II., § 15, and Stat. of 3 and 4 Will. IV., in Appendix, p. vi. 5 Wms. Saund. 175; 3 Black. Com. 193; F. N. B. 1. F. N. B. 1, 6. It has been held, in Maine, that an heir may maintain a writ of right, on the seisin of his ancestor, at any time within thirty years after the commencement of the disscisin, although the ancestor had been disseised for more than twenty years, at the time of his decease; for the right of property may exist, without either the possession, or the right of possession; and if the right of property remain, after the possession is gone, there is no difficulty in considering it as descending upon the heir, unless it is destroyed by the statute of limitations. It is upon the principle, that suits are maintained on simple contracts, more than six years after the right of action accrued, if brought within six years after an acknowledgment or new promise. Mason v. Walker, 2 Shep. (Me.), R. 163. As to the similitude of a new promise or acknowledgment, see ante, Chap. XX. But in case the right of possession is lost by length of time, or by judgment, against the true owner, in one of these inferior suits, this is then the only remedy that can be resorted to; and it is of so forcible a nature, that it overcomes all obstacles, and removes every objection that may have arisen to obscure the title. After issue has once been joined in this writ, the judgment is absolutely final. A recovery upon it, therefore, may be pleaded in bar of any other claim or demand to the same estate. The mise in a writ of right, is considered to put in issue the whole title, and includes the statutes of limitations. Hence, if a plea, after the mise, denied the seisin of the ancestor, within the time prescribed, it is bad on special demurrer.2 § 344. To maintain a writ of right, an actual seisin, either in the demandant himself, or in the ancestor from whom the demandant claims, by taking the explees,3 must, in England, have been shown within the period of the prescribed limitations. The decisive fact of such seisin, both in an action droitural and an action ancestral droitural, has been required from the earliest periods of the English law. This was a peculiarity in a writ of right, for in all possessory actions, a seisin in law was sufficient. Upon the death of the ancestor, a seisin in law is cast upon the heir, but not until he actually enters, has he actual seisin. If there had been an abatement before he entered into the possession of the inheritance, he could have maintained no right upon his own seisin against the abator, inasmuch as the only seisin he could prove in himself, was a seisin in law, he not 1 Co. Litt. 158; 3 Black. Com. 194. 2 Ten Eyck v. Waterbury, 7 Cowen (N. Y.), R. 51. A writ of right patent is so called, because it is an open letter of request or command given and expressed to full view, in contradistinction to writs close, which are always closed up and sealed, or are supposed to be closed up and scaled and directed to particular persons. 2 Bl. Com. 346; 3 id. 195. In the United States, all writs of right are returned into the common law counts of the State, and are directed to, and returnable by, the sheriffs or other public officers. They are, therefore, writs of right close, and subject to the general doctrines of the common law, applicable to such writs. See Wheaton's note to Liter v. Green, 2 Wheat. (U. S.), R. 315. 3 Explees, or esplees, are the products which the land yields, as the hay of the meadow, the herbage of the pasture, the corn and other produce of the arable ground, rents or services. Termes de la Ley. Reeves's Hist. Eng. Law, 428; 5 East, R. 272; 2 Bos. & Pull. R. 570; 3 Cruise, Dig. 490; Leonard v. Hill, 10 Mass. R. 281; Copp v. Lamb, 3 Fairf. (Me.), R. 312; Speed v. Burford, 3 Bibb (Ky.), R. 57. having taken the explees or profits of the land. Yet he might have maintained a writ ancestral droitural upon the seisin of the ancestor, who had taken the explees in his lifetime, because the limitation of such writ, by the statute of 32 Henry VIII. is longer, viz., sixty years. But his seisin in law was sufficient for him to maintain, within thirty years, a writ of entry sur abatement.2 The reversioner or remainderman, upon whom a seisin in law had been cast by the death of the particular tenant, might resort to his writ of entry sur intrusion, but without having taken the profits, he could not have maintained a writ of right. But where A is tenant for life, remainder to B for life, remainder to the heirs of A, and A dies, and B enters and dies, and a stranger intrudes, the seisin which A had, as tenant for life, is sufficient for A's heirs to maintain a writ of right.4 So where L and M are joint tenants, remainder to the heirs of L, and L dies, and a recovery is had against M. the heir of L shall have a writ of right for the whole, on M's seisin, as well as on L's, because joint tenants are seised per my et per tout.5 Where the demandant claims by descent, from a devisee under a will, he must allege and prove an actual seisin, by the taking of the explees or profits in such devisee. Thus where an estate was devised to A for life, with 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 any form, because neither B nor the demandant was ever actually seised. § 345. It has been held, in the State of Kentucky, that the demandant in a writ of right, to maintain it, must prove an actual seisin; but where A, being seised of land, sold it and repurchased it, it was held, that he might have a writ of right on his seisin before the sale. But it has been expressly decided in this country, that the 1 See the Stat. of Hen. VIII., in Appendix, p. i. 2 2 Prest. Abst. of Title, 298. 3 Prest. supra, 301. 4 Vin Abr. Droit de Recto. 5 Vin. supra. 8 Dally v. King, 1 H. Bl. R. 1. Devisces before seisin, cannot prosecute a writ of right. Saunders v. Annesley, 2 Scho. & Lefr. R. 104. 7 Speed v. Burford, 3 Bibb (Ky.), R. 57. 8 Gaines v. Conn's heirs, 2 J. J. Marsh. (Ky.), R. 104. strict rule of the English law requiring actual seisin, is not applicable to the condition of this country, where so very large a part of real property consists of wild and uncultivated lands, remote from settlements. The English distinctions between actions droitural and actions possessory, have not been much regarded in Massachusetts, there having been, in the practice of that State, no difference in respect to the nature of the seisin requisite to maintain them. Whoever, in that State, has had the title, has also had a seisin in deed, either by an actual entry or intendment of law; and the explees may be considered as united to the title, so as to enable the party to maintain a writ of right.2 In Virginia, writs of right have been reduced by statute, to the same rule that prevailed at common law in writs of entry, and other possessory actions, and actual seisin or possession need not be proved to maintain them.3 Where the premises demanded in a writ of right in a case in the State of New York, it was held that an entry need not be proved before action.4 6 § 346. Wherever it is necessary for the demandant to rely on the seisin of the ancestor, he must, by tracing the descent of his title as heir, show how he is heir, and a mistake in any of the steps will be a fatal variance. The greatest accuracy seems to have ever been required in England, in the proceedings in writs of right, as they have been not much encouraged by the courts there; and the instances are few in which they have permitted the demandant in a writ of right, to amend even for a trivial error. In Dumsday v. Hughes, the court thought that writs of right should not be improperly encouraged, and maintained that the "least slip was fatal to the demandant.” 7 In a case of a writ of right ancestral, in the State of New York, the demandant counted on the seisin of his deceased father, and issue was joined on the mere right. The tenant proved that J. H. was in possession of the premises thirty-eight years ago, and improved them as his own, and continued so in possession fifteen or sixteen years, and 1 Green v. Liter, 8 Cranch (U. S.), R. 229. 2 Stearns on Real Actions, 365. only real action in Massachusetts. 3 Lomax, Dig. 618. Since the revised statutes, the writ of entry is the 4 Bradstreet v. Clarke, 12 Wend. (N. Y.), R. 602. 5 Booth on Real Actions, 111, note (a). 6 3 Bos. & Pull. R. 452. 7 Per Mr. J. Heath, 1 New R. 66. |