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Plain Defects. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's senses, as if a horse is warranted perfect, and lacks his tail or an ear, unless the buyer be blind. But if the horse lacks the sight of one eye, yet as the discernment of such defect is often a matter of skill, an action on the case will lie for damages for this imposition. And if cloth be warranted to be of such a length, which it is not, an action the case will lie for damages, for that cannot be discerned by sight, but only by a collateral proof, by measuring it.
Action of Deceit. This is an additional remedy to give damages in some particular cases of fraud, and principally, where one man does any thing in the name of another, by which he is deceived or injured; as if one brings an action in another's name, and then suffers a non-suit, whereby the plaintiff becomes liable for costs, or where one obtains or suffers a fraudulent recovery of lands or chattels, to the prejudice of him who has right. Also when by collusion, the attorney of the tenant makes default in a real action, or where the sheriff returns, that the tenant was summoned when he was not, and in either case he loses the land, a writ of deceit lies against the demandant, and also the attorney, or the sheriff and his officers. It also lies in cases of warranty and of other personal injuries committed contrary to good faith and honesty. But an action on the case for damages, in the nature of a writ of deceit, is more usually brought on these occasions.
CHAPTER X.-OUSTER OF THE FREEHOLD.
Injuries to the Realty. There are six real injuries, or injuries which affect real rights, to wit:
1. Ouster. 3. Nuisance. 5. Subtraction. .
2. Trespass. 4. Waste. 6. Disturbance. QUSTER.
Defined. Ouster, or dispossession, is an injury that carries with it the amotion of possession, for thereby the wrong-doer acquires the actual occupation of land, and obliges the rightful owner to seek his legal remedy, in order to gain possession, and damages for the injury sustained. Ouster may be either of the treehold or of chattels real.
Of the Freehold. This ouster is effected by: Abatement. Intrusion. Disseisin. Discontinuance. Deforcement. 1. ABATEMENT.
Defined. This is where one dies seised of an inheritance, and before the heir or devisee enters, a stranger, without right, makes entry, and gets possession of the freehold. This entry is termed an abatement, and he himself is called an abator. The term means a beating down, and is derived from the French.
Used in Three Senses. It is used in three senses : Abating or beating down a nuisance; abating a writ or action, signifying the defeat of such writ, by some fatal exception to it; and abatement, as set forth in this chapter, a figurative expression to denote, that the rightful possession or freehold of the heir or devisee is overthrown by the rude intervention of a stranger.
Occupancy of a Decedent's Estate. This is somewhat similar to an immediate occupancy in a state of nature, which is effected by taking possession of the land, the instant the prior occupant, by his death, relinquishes it. This is opposed to the law of society, and the law of England, which for the preservation of peace, has prohibited, as far as possible, all acquisitions by mere occupancy, and has directed that lands on the death of the present possessor should immediately vest, either in some person expressly named and appointed by the deceased as his devisee, or in default of such appointment, in such of his next relations, as the law has selected as his heirs at law. Every entry therefore by way of intervention between the ancestor and heir or person next entitled, which keeps the heir or devisee out of possession, is one of the greatest injuries to the right of real property. 2. INTRUSION.
Defined. This is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. It happens where a life tenant dies seised of certain lands, and a stranger enters thereon, after such death of the tenant, and before any entry of him in remainder or reversion.
Differs from Abatement. An abatement is always to the prejudice of the heir or immediate devisee; an intrusion is to the prejudice of him in remainder or reversion. An intrusion is always immediately consequent upon the determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee simple. And in either case, the injury is equally great to him, whose possession is defeated by this unlawful occupancy. 3. DISSEISIN.
Defined and Distinguished. This is a wrongful putting out of him who is seised of the freehold. The two former species of injury were by a wrongful entry, where the possession was vacant; but this is an attack upon him who is in actual possession, and the turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in deed.
Corporeal and Incorporeal. Disseisin may be effected either in corporeal inheritances or incorporeal. Disseisin of things corporeal, as of houses and lands, must be by entry and actual dispossession of the freehold, as if a man enters either by force or fraud into the house of another, and turns or at least keeps him out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession, for the subject is not capable of actual bodily possession, but it depends on their respective natures and various kinds, being generally nothing more than a disturbance of the owner in the means of coming at or enjoying them.
Freehold Rent. Ancient law books mentioned five methods of working a disseisin with regard to freehold rent: 1. By enclosing the land, and thus preventing distraint. 2. By forestaller, by which the lessor is frightened off. 3. By rescous, which forcibly retakes a distress, or prevents one being made. 4. By replevin of the distress. 5. By denial, where the rent is not paid on demand. All of these amount to a disseisin of rent, that is, they wrongfully put the owner out of the only possession, of which the subject matter is capable, namely the receipt of it. All these disseisins of hereditaments incorporeal, are only so at the election of the party injured, if for the sake of more easily trying the right, he is pleased to suppose himself disseised.
1 Example. If A dies seised of lands in fee simple, and before the entry of B his heir, C enters thereon, it is abatement, but if A be tenant for life, with remainder to B in fee simple, and after the death of A, C enters, this is intrusion.
Fiction of Law. And so too, even in corporeal hereditaments, a man may frequently suppose himself to be disseised, when he is not so in fact, for the sake of entitling himself to the more easy remedy of an assize of novel disseisin, instead of the more tedious process of a writ of entry.
Feudal Law of Disseisin. The true injury of compulsory disseisin seems to be that of dispossessing the tenant, and substituting one-self to be the tenant in his stead, in order to effect which in feudal times, the consent of the lord, who alone could change the seisin, was necessary. Subsequently no regard was bad to the lord's concurrence in the claim of the dispossessor, but the latter was considered as the sole disseisor, and this wrong was then allowed to be remedied by entry only, withcut any form of law, as against the disseisor himself, but required a legal process against his heir or alienee. When the remedy by assize was introduced, the facility induced those who were wrongfully dispossessed, to feign themselves to be disseised, merely for the sake of the remedy. • Entry Unlawful in above Cases. These three species of injury are such, wherein the entry of the tenant ab initio, as well as the continuance of his possession, is unlawful. But the two remaining species are where the entry of the tenant was at first lawful, but the wrong consists in the detaining of the possession afterwards. 4. DISCONTINUANCE.
When it Occurs. This happens, when he who has an estate-tail makes a larger estate of the land, than by law he is entitled to do, in which case the estate is good, so far as his power extends who made it, but no further.
Tenant in Tail. As if a tenant in tail makes a feoffment in fee-simple, or for the life of the feoffee or in tail, which acts are beyond his power, for he can only make a lease for his own life; in such case the entry of the feoffee is lawful during the life of the feoffor. But if he retains possession after the death of the feoffor, it is an injury, which is termed a discontinuance; the ancient legal estate, which ought to have survived to the heir in tail being gone, or for a while discontinued. For on the death of the alienors, neither the heir in tail, nor they in remainder or reversion expectant on the determination of the estate tail, can enter on and possess the lands so alienated.
Defined and Distinguished. This is the holding of any lands to which another person has a right. The original entry was legal, but the detainer has become unlawful.
It is a Nomen Generalissimum. It includes an abatement, an intrusion, a disseisin or a discontinuance, as well as any other species of wrong whatsoever, whereby he, who has right to the freehold, is kept out of possession. But as contradistinguished from the former, it is only such a detainer of the freehold from him who has the right of property, but never had possession under that right. So that whatever injury (withholding the possession of a freehold), is not included under one of the former heads, is comprised under this of deforcement.
The Remedy. This, in injuries by ouster, is universally the restitution and delivery of possession to the right owner, and, in some cases, damages also for the unjust amotion.
Remedy by Entry. This is done by the legal owner, when another person, who has no right, has previously taken possession of lands. In this case, the party entitled may make a formal but peaceable entry thereon, declaring that thereby he takes possession, or he may enter on any part of it in the same county, declaring it to be in the name of the whole; but if it lies in different counties, he must make different entries. Also if there be two disseisors, the party disseised must make his entry on both, or if one disseisor has conveyed the lands with livery to two distinct feoffees, entry must be made on both, for as their seisin is distinct, so also must be the act which divests that seisin. If the claimant be deterred from entering by fear or menaces, he may make claim as near to the estate as he can, with like form, which claim is in force for a year and a day, when it must be repeated at every such period. Such entry gives a man seisin, puts him into “immediate possession, and thereby makes him complete owner, and capable of conveying it by descent or purchase.
Entry, when Available. This remedy takes place in only
1 But now by statute, no person shall be deemed in possession of land, merely by reason of having made an entry thereon, and no continual or other claim upon or near any land shall preserve any right of making an entry. By the statute, a bare entry on land has no effect whatever, unless there be a change of possession. When this takes place, the remedy by entry is still in operation; when nnt, an entry is of no avail, and this remedy no longer exists.-Steuart,