Discontinu ance. CHAPTER XXI. TITLE BY PRESCRIPTION, AND BY NON-CLAIM UNDER REV. 'AT common law, there were often different remedies in those cases wherein entry on lands or the ouster therefrom, and continuance in possession thereof by the tenant was unlawful ab initio, and those other cases wherein the original entry was lawful, but the continuance in possession subsequently became unlawful. Thus there was a peculiar remedy in the case' of discontinuance, which happened when he who had an estate-tail made a larger estate of the land than by law entitled to do. As if tenant in tail made a feoffment in fee simple, or in tail, or for the life of the feoffee, all which were beyond his right to make, as that extended no further than to convey for his own life; in such case the entry of the feoffee was lawful during the life of the feoffor, but if after his death possession was retained, it was an injury termed a discontinuance. A feoffment, as before mentioned, formerly passed the estate professed to be granted, by wrong, though the feoffor had not in him the power to convey such estate.' 'At common law there was, as there now is, the extra-judicial and summary remedy of entry by the legal owner having right which, as before explained (a), may now, so far as any civil action is concerned, be with as much force as necessary, but which may subject the owner to an indictment for breach of the peace, and to proceedings under the * S. 175. statutes as to forcible entry. *Formerly,' if the claimant were' deterred from entering by menaces or bodily fear, he (a) As to right to enter with as much force as necessary, so far as regards a civil action. See p. 175. claim. 'might' make claim, as near to the estate as he 'could,' with certain forms and solemnities: which claim was in force for only a year and a day. And this claim, if it were' repeated Continual once in the space of every year and day (which was' called continual claim), had the same effect with, and in all respects amounted to, a legal entry. Such an entry 'gave' a man seisin, or put into immediate possession him that had right of entry on the estate, and thereby made him complete owner, and capable of conveying it from himself by either descent or purchase, which otherwise, as regards conveyance to a purchaser at least, was not allowed; for a person who was considered as dispossessed and having but a right of entry could not transfer such right to another (a). There was a further advantage attendant on entry as above or continual claim, viz.: that it prevented the right of entry from being tolled or taken away by a descent cast or discontinuance, or, if an action were brought within a year from entry, from being barred by the Statute of Limitations. The student will now understand the object of the Rev. Stat. Ont. c. 108, secs. 8 and 9, under the first of which no person is deemed in possession of any land within the meaning of the Act merely by reason of having made an entry thereon; and under s. 9, no continual claim on or near any land shall preserve any right of entry, or distress, or of bringing an action.' *The right of entry 'might have been' tolled, that is taken away, by descent. Descents, which 'took' away entries, were' when any one, seised by any means whatsoever, of inheritance of a corporeal hereditament, died, whereby the same descended to his heir, which was termed a descent cast; (now abolished as to its effect by R. S. O. 100, s. 10). In such a case, however feeble the right of the ancestor might be, the entry of any other person who claimed title to the (a) Ante page 312. *S. 176. Right of entry might be tolled or taken away. Of cases not remediable by mere entry. * S 160. By possessory actions, freehold was' taken away; and he 'could not' recover possession against the heir by this summary method, but 'was' driven to his action to gain a legal seisin of the estate. And this, among other reasons,' because the heir came' to the estate by act of law, and not by his own act; the law, therefore protected his title, and 'would' not suffer his possession to be divested, till the claimant had proved a better right (a). Thus far of remedies by entry,' where the tenant or occupier of the land hath gained only a mere possession, and no apparent shadow of right. Next followed another class, which were' in use where the tenant or occupier advanced one step nearer to perfection; so that he had' in him not. only a bare possession, which might' be destroyed by a bare entry, but also an apparent right of possession, which 'could not be removed by mere entry, but only' by orderly course of law; in the process of which it must have been shown that though he had' possession and therefore the presumptive right, yet there was' a right of possession superior to his, residing in him who 'brought' the action. These remedies were formerly' either by a writ of entry, or an assise; which 'were' actions merely possessory; serving only to regain that possession, whereof the demandant (that is, he who sues for the land,) or his ancestor' had' been unjustly deprived by the tenant or possessor of the freehold, or those under whom he claims. They decided nothing with which decided respect to the right of property; only restoring the demandnothing with respect to the ant to that state or situation, in which he was (or by law right of property. ought to have been) before the dispossession committed. But (a) The common law doctrine as to the effect of a descent cast was somewhat modified by Stat. 31 H. c. 33, enacting that "the dying seised of any disseisor of, or in any lands, &c., having no title therein, shall not be deemed a descent to take away the entry of a person or his heir, who had lawful title of entry at the time of the descent, unless the disseisor has had peaceable possession for five years next after the disseisin, without entry or continual claim by the person entitled." this without any prejudice to the right of ownership; for, if the dispossessor 'had' any legal claim, he might' afterwards exert it, notwithstanding a recovery against him in these possessory actions. entry. 1. The first of these possessory remedies was' by writ of The writ of entry; which disproved the title of the tenant or possessor, by shewing the unlawful means by which he entered or continued possession. If more than two degrees (that is, two alienations or descents) were past, there lay no writ of entry at the common law. For, as it was provided, for the *quietness of men's inheritances, that no one, even though he had the true right of possession, should enter upon him who had the apparent right by descent or otherwise, but he was driven to his writ of entry to gain possession; so, after more than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this possessory action; but was driven to his writ of right, a long and final remedy. The writ of entry was not applicable on discontinuance by tenant in tail.' On looking at s. 75 Rev. Stat. Ont., ch. 51, the student will find a curious list of writs now abolished: they were writs which issued in real actions, sometimes droiturel, in which the right of property was tested, sometimes possessory, in which the right to possession alone was in question, and these writs afforded remedies according to the circumstances of each case, as the number of descents cast, alienations, deaths, &c. The legislature have, however, acted somewhat erroneously in not continuing in the Revised Acts the provisions of s. 79 of Con. Stat., c. 27, on the supposed ground that those provisions were effete. Their absence may unjustly deprive an owner of his property, as will be seen by the next note below.' * S 182. *By these several possessory remedies the right of posses- S. 190. sion might have been' restored to him that was' unjustly But the right deprived thereof. But the right of possession (though it * S. 191. Sometimes a possessory ac of possession and of proper- carried with it a strong presumption) 'was' not always conty may be distinct. clusive evidence of the right of property, which 'might' still subsist in another man. For, as one man 'might' have the possession, and another the right of possession, which was recovered by these possessory actions; so* one man ‘might' have the right of possession, and so not be liable to eviction tion would not by any possessory action, and another might' have the writ of right, right of property, which could not' be otherwise asserted or real action than by the great and final remedy of a writ of right, or such correspondent writs as were' in the nature of a writ of right; and proceedings on them termed real actions droiturel, as distinguished from those possessory.' This happened principally in four cases: lie, but only droiturel. As, 1. on discontinuance. Formedon. 1. First, upon an alienation 'in fee simple' by tenant in tail, whereby the estate-tail 'was' discontinued, and the remainder or reversion was' by failure of the particular estate displaced, and turned into a mere right, the remedy 'was' by action of formedon (secundum formam doni), in the nature of a writ of right (a). (a) About six years ago one of the authors was retained as counsel in a case in which, in his opinion, the only remedy was by the writ of formedon, which he drafted, and which was issued accordingly, to recover large property in the Town of Brockville. The facts were as follows:-A tenant in tail, then barely of age, had prior to the Act of 4 William IV., c. 1, abolishing real actions (R. S. O. c. 51, s. 75), enfeoffed in fee simple with livery of seisin; the feoffee made conveyances of various portions, and his grantees again conveyed to others: in the 19th year before the writ of formedon the tenant in tail died; the suit was brought by the issue in tail. From what is stated in the text in this chapter, it will be seen that in such a case the right of entry of the issue, even on death of the tenant in tail, is taken away by the discontinuance worked by the feoffment, as also by the various alienations of the feoffee and those claiming under him; consequently no action of ejectment could be brought, as that action can only lie where the plaintiff has a right of entry. When, therefore, the Act of William abolished all writs and real actions to recover land, except in dower and ejectment, there was excepted from abolition those writs and real actions (Con. Stat. c. 27, s. 79, which exception ought to have been continued) applicable to those cases wherein "any person whose right of entry to any land had been taken away by any descent cast, discontinuance, or warranty" before the abolition. During the lifetime of the tenant in tail, time did not run in favour of those in possession, for the reasons given in treating of ss. 26, 27. |