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three of the five species of ouster, viz., abatement, intrusion and disseisin, for as in these the original entry was unlawful, they may therefore be remedied by the mere entry of him who has right. But upon a discontinuance or deforcement, the owner cannot enter, but is driven to his action, for the original entry being lawful, and hence an apparent right of possession gained, the law will not suffer that to be overthrown by the mere act or entry of the claimant. Yet a man may enter where the tenancy is by sufferance, for such tenant has but a bare possession, which may he defeated, like a tenancy at will, by the mere entry of the owner.
Entry taken away by Descent. Descents, which take away entries, are, where any one, seised of the inheritance of a corporeal hereditament, dies, whereby the same descends to his heir. In this case, however feeble the right of the ancestor may be, the entry of any other person, who claims a right to the freehold is taken away, and he cannot recover possession against the heir by this summary method, but is driven to his action to gain a legal seisin of the estate. The reasons are, because the heir comes to his estate by act of law, and not by his own act; the law therefore protects his title, and will not suffer his possession to be divested, till the claimant has proved a better right; also, because the heir may not know the true state of his title, and lastly, it is agreeable to the dictates of reason. It was well adapted to the military spirit of the feudal tenures, by protecting the rights of the heirs of absent feudatories.
Property and the Right of Property. In every complete title to lands, two things are necessary: the possession or seisin, and the right or property therein. · If the possession be severed from the property, if A has the right of property, and B has unlawful possession, this is an injury to A, which the law remedies, by putting him in possession by different means, according to circumstances.
Entry Suffices. Thus as B the wrong-doer has only a naked possession, without any shadow of right, A who has both the right of property and the right of possession may put an end to his title at once, by the summary method of entry.
Result of Death of Wrong Doer. But if B dies seised of the lands, then B’s heir advances one step further towards a good title; he has not only a naked possession, but also an apparent right of possession. The law presumes that the possession, which is transmitted from the ancestor to the heir, is a rightful possession, until the contrary be shown, and therefore the mere entry of A is not allowed to evict the heir of B, but A is driven to his action at law to remove the possession of the heir, though his entry alone would have dispossessed his ancestor.
Legal Disabilities Protect. As a rule, no man can recover possession by mere entry on lands, which another has by descent. This rule has exceptions, as where the claimant was under legal disabilities during the life of the ancestor, either of infancy, coverture, imprisonment, insanity or absence from the country, in which cases there are no laches in the claimant, and therefore no descent shall bar his entry.
Limitation. If any person disseises or turns another out of possession, no descent to the heir of the disseisor shall take away the entry of him who has a right to the land, unless the disseisor had peaceable possession five years next after the disseisin. But the statute does not extend to any feoffee or donee of the disseisor. No entry shall be made upon lands, unless within twenty years after the right shall accrue. No entry shall be of force to satisfy the statute of limitations or to avoid a fine levied of lands, unless an action be thereupon commenced within one year thereafter, and prosecuted with effect. .
Estate Tail. When the tenant in tail alienes the lands entailed, this takes away the entry of the issue in tail, and drives him to his action in law to recover the possession. The law will not suppose, without proof, that the ancestor of him in possession acquired the estate by wrong, and therefore after five years peaceable possession and a descent cast, will not suffer the possession of the heir to be disturbed by mere entry without action. Besides the alienee, who came into possession by a lawful conveyance, which was at least good for the life of the alienor, has not only a bare possession, but an apparent right of possession, which is not allowed to be divested by the mere entry of the claimant. Courts go as far as they can to make estates tail alienable, by declaring such alienations to be voidable only, and not absolutely void.
Deforcement. Where the deforciant had originally a lawful possession of the land, but now detains it wrongfully, he still
By statute, one period of limitation, to wit: twenty years, is established for all lands and rents.
continues to have the presumptive prima facie evidence of right, that is, possession lawfully gained. This shall not be overturned by the mere entry of another.
Entry must be Peaceable. It must not be made with force, for if one turns or keeps another out of possession forcibly, this is an injury of both a civil and a criminal nature. The civil wrong is remedied by immediate restitution, the criminal is punishable by fine.
Forcible Entry. For by statute, on complaint to any justice of the peace, of a forcible entry on lands or tenements, or a forcible detainer after a peaceable entry, he shall try the truth, and upon force found, shall restore the possession to the party so put out, and in such case, or if any alienation be made to defraud the possessor of his right, which is declared void, the offender shall forfeit, for the force found, treble damages to the party aggrieved, and pay a fine to the king. But this does not extend to such as endeavor to keep possession manu forti, after three years peaceable enjoyment of themselves or their ancestors, or those under whom they claim.
Apparent Right of Possession, Next follow another class, who differ from those who have mere possession, without the shadow of right. These parties have not only a bare possession, but also an apparent right of possession, which cannot be removed but by orderly course of law, in which it must be shown, that though a party has possession, and therefore the presumptive right, yet there is a right of possession superior to his, residing in him who brings the action.
Remedies. By writs of entry and assize, which are actions merely possessory. They decide nothing with respect to the right of property, only restoring the demandant to the position, he had before he was dispossessed. But the title to lands is now usually tried in actions of ejectment or trespass.
CHAPTER XI.-OUSTER OF CHATTELS REAL.
Ouster from Estates held by Statute, Recognizance or Elegit. This amotion of possession 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. Coke observes, that these tenants hold their estates, ut liberum tenementum, until their debts are paid.
i These writs were abolished by statute.
Ouster from an Estate for Years. A disseisin or ejection of the tenant from the occupation of the land during the continuance of the term. The law provides two remedies, according to the circumstances and situation of the wrong doer, the writ of ejectione firmae, which lies against the wrong doer himself, and the writ of quare ejecit infra terminum, which lies not against the wrong doer or ejector himself, but his feoffee or other person claiming under him. These are mixed actions, and recover restitution of the term of years, as well as damages for the ouşter or wrong. The latter writ has fallen into disuse. EJECTMENT.
Where it Lies. It lies, where lands or tenements are let for a term of years, and afterwards the lessor, reversioner, remainderman, or any stranger, ejects or ousts the lessee of his term. In this case he shall have his writ of ejection, to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him. And by this writ, the plaintiff shall recover back his term, or the remainder of it, with damages.
Its History, Since the disuse of real actions, this mixed proceeding has become the common method of trying the title to lands or tenements. The writ of covenant, for breach of the contract contained in the lease for years, was anciently the only specific remedy for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior to that of the lessor, or by a grantee of the reversion, though the lessee might still maintain an action of covenant against the lessor for non-performance of his contract or lease, yet he could not recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor by a real action might indeed recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejectione firmae for the trespass committed, in ejecting him. But afterwards, when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party immediately injured, the courts of law adopted the same method, and in the prosecution of a writ of ejectment, introduced a species of remedy not warranted by the original writ, nor prayed by the declaration, a judgment to recover the term, and a writ of possession thereupon.
To Test Title. This remedy by ejectment, is, in its origin, an action brought by one who has a lease for years, to repair the injury done him by dispossession. To convert it into a method of trying title to the freehold, it was first necessary for the claimant to take possession of the lands, to empower him to constitute a lessee for years, who may be capable of receiving this injury of dispossession. For it would be an offence, called maintenance, to convey a title to another, when the grantor is not in possession of the land. When, therefore, a person, who has the right of entry into lands, determines to acquire that possession, which is wrongfully withheld by the present tenant, he makes a formal entry on the premises, and being so in possesssion of the soil, he there, upon the land, seals and delivers a lease to some third person or lessee, and having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land, till the prior tenant, or he who had the previous possession, enters thereon afresh and ousts him, or till some other person by accident or agreement, comes upon the land, and ejects him.
Tenant in Possession. For this injury, the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whoever it was that ousted him, to recover back his term and damages. But where this action is brought against such casual ejector, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession, without any opportunity to defend it.
Notice. Wherefore it is a rule, that no plaintiff shall proceed in ejectment to recover lands against a casual ejector, without notice given to the tenant in possession, if any there be, and without making him a defendant, if he please.
Four Points must be Proven. Title, lease, entry and ouster. He must show a good title in his lessor, and that the lessor, being seised by virtue of such title, did make him a lease for the present term; that he the lessee or plaintiff did enter or take possession by virtue of said lease; and lastly, that the defendant ousted or ejected him.