CHAPTER X. OF INJURIES TO REAL PROPERTY; AND, FIRST, OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD. 1. What are real injuries, or injuries affecting real rights?— 167. They are principally six: 1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Disturbance. 2. What is ouster?-167. Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession; for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that hath a right to seek his legal remedy, in order to gain possession, and damages for the injury sustained. Ouster may either be of the freehold, or of chattels real. 3. By what methods is ouster of the freehold effected?-167. By 1. Abatement; 2. Intrusion; 3. Disseisin; 4. Discontinuance; 5. Deforcement. 4. What is an abatement ?-167, 168. It is where a person dies seized of an inheritance, and before the heir or devisee enters, a stranger, who has no right, makes entry, and gets possession of the freehold. This entry is called an abatement. 5. What is an intrusion ?-169. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or in reversion. An abatement is always to the prejudice of the heir, or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. 6. What is disseisin ?-169. A wrongful putting out of him that is seized of the freehold. Abatement and intrusion were by a wrongful entry where the possession was vacant; but disseisin is an attack upon him who is in actual possession. 7. How must disseisin of things corporeal be effected?-170. Disseisin of things corporeal, as of houses, lands, &c., must be by entry and actual dispossession of the freehold. 8. What is disseisin of incorporeal hereditaments ?—170. It cannot be an actual dispossession, but it depends on their respective natures and various kinds, being in general nothing more than a disturbance of the owner in the means of coming at, or enjoying them. 9. What remedy has the proprietor for such ouster ?—198, 199. For such ouster, though the estate be merely a chattel interest, the owner, or tenant, shall have the same remedy as for an injury to a freehold, viz., by assise and novel disseisin. Upon which account it is that such tenant is said to hold his estate ut liberum tenementum, until their debts be paid. 10. In what actions is the title to lands now usually tried?-197. In actions of ejectment or trespass. CHAPTER XI. OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL. 1. What is ouster of chattels real?-198. Ouster of chattels real is by amoving the possession of the tenant from an estate by statute-merchant, statute-staple, recognizance in the nature of it, or elegit; or, from an estate for years. 2. How is ouster from estates held by statute, recognizance, or elegit, liable to happen ?-198. It is only liable to happen by a species of disseisin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. 3. What methods are there to work a disseisin of freehold rent? -170. Our ancient law books mention five such methods: 1. By inclosure. 2. By forestaller. 3. By rescous. 4. By replevin. 5. By denial. 4. What are the remedies for ouster?—174. The remedy for the several species and degrees of injury by ouster is, universally, the restitution or delivery of possession to the right owner; and, in some cases, damages also for the unjust amotion. 5. How does ouster from an estate for years happen?-199. The amotion of possession from an estate for years happens only by a like kind of disseisin, ejection, or turning out of the tenant from the occupation of the land, during the continuance of his term. 6. What remedies are there for ouster from an estate for years ?— 199. For this injury the law has provided the tenant with two remedies: 1. By writ of ejectione firma, which lies against any one, the lessor, reversioner, remainder-man, or any stranger who is himself the wrongdoer, and has committed the injury complained of 2. By the writ of quare ejecit infra terminum, which lies not against the wrongdoer or ejector himself, but his feoffee or other person claiming under him. 7. Why are these mixed actions?-199. Because therein two things are recovered, as well restitution of the term of years, as damages for the ouster or wrong. 8. When lieth a writ of ejectione firma, or action of trespass in ejectment ?—199. Where lands or tenements are let for a term of years; and afterward the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term. By this writ the plaintiff shall recover back his term, or the remainder of it, with damages. Since the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. 9. When was this action of ejectment first applied to its present principal use, that of trying title to the land?-201. Probably, under Henry VII. 10. In order to maintain the action, what points must the plaintiff make out?-202. He must, in case of any defense, make out four points, viz., title, lease, entry, and ouster. 11. What shall he, thereupon, recover?-202. He shall have judgment to recover his term and damages; and shall, in consequence, have a writ of possession. 12. Does ejectment lie for incorporeal hereditaments?—206. It does not; for on those things whereon an entry cannot, in fact, be made, no entry shall be supposed by any fiction. It lies, however, for tithes, by statute. 13. When did lease, entry and ouster, in ejectment, become fictions?-202, 203. As much trouble and formality were found to attend the actual making of the lease, entry and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant, or occupier, of the premises in dispute, was invented by the lord chief justice Rolle. It depends entirely upon a string of legal fictions. No actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title. 14. Upon what condition is the tenant in possession allowed to be made defendant ?—203. Upon this condition, that he enter into a rule of court to confess, at the trial of the cause, three of the four requisites for the maintenance of the plaintiff's action; viz., the lease, the entry, and the ouster. 15. But what if the new defendant, after entering into the common rule, fail to appear at the trial?-204, 205. The plaintiff must be then nonsuited, for the want of proving these requisites; but judgment will, in the end, be entered against the casual ejector; for the condition on which the tenant, or his landlord, was admitted a defendant is broken. 16. The damages in actions of ejectment being merely nominal, what other action lies to complete the remedy, when the possession has been long detained from him who had the right to it ?—503. An action of trespass, after the recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. 17. In case this action for mesne profits is brought, of what is the judgment in ejectment conclusive evidence?—205. As against the defendant, it is conclusive evidence for all profits which have accrued since the date of the demise, stated in the former declaration of the plaintiff. If the plaintiff sues for any antecedent profits, the defendant may make a new defense, and thereby save all but six years' rents and profits. 18. Is ejectment a remedy where rent is in arrear ?—206. Yes; it is rendered, by statute, a very easy and expeditious remedy to landlords whose tenants are in arrear. 19. Has the writ of quare ejecit infra terminum fallen into disuse?-207. Yes, it has fallen into disuse, since the introduction of fictitious ousters and the action for mesne profits. |