RIGHT; and this often by mere oral authority, and sometimes even without any expressed authority at all (s); so it seems that THE ENTRY OF

(s) Thus an husband may desire any person who lives near where the lands lie, to enter in the name of himself and wife; and the entry of such person will, it seems, be sufficient to entitle the husband to his curtesy (1). So if a person enter, without any previous authority, in the name of him who should enter for condition broken, it will vest the estate in him to whom it was limited on the breach of such condition, so as to maintain an ejectment; if it be assented to before the day of the demise laid in the declaration (2). So a stranger may enter, and it shall avoid a fine, though levied with proclamations, if the entry be by precedent command, or be afterwards assented to; but not otherwise (3). So if a person enter for a forfeiture in the name of him in reversion, though without express authority (4). So, generally, if a person enter in the name of him who has right, even though it be without a precedent command or subsequent assent; and whether he who has right be an infant or of full age, it shall vest the freehold in him who has such right (5). session of the husband is the possession of the converso (6), &c. &c. &c. &c.

So the pos

wife, and e

(1) Perkins, s. 470; and see s. 464. And see Prest. on Estates, 485. (2) See Fitchett v. Adams, 2 Strange, 1128, 9. And a verbal assent is sufficient (Fitchett & Adams); but it is absolutely necessary that an assent be given. See Curtis v. Wolverston, Cro. Jac. 56.

(3) Bro. Abr. tit. Entre Cong. 123; 9 Co. 106 a; see Co. Litt. 258 a ; 1 Cruise, 307; 2 Com. Dig. tit. Claim (B 2).

(4) Bro. Abr. tit. Seisin, 21; and see 2 Strange, 1128, 9; and Bro. Abr. tit. Entre. Cong. 123; and Co. Litt. 245 a.

(5) Perk. s. 48; Bro. Abr. tit. Seisin, 50; Co. Litt. 245 a, 258 a. (6) 8 Co. 44 a; see Bro. Abr. tit. Seisin, 17; Perkins, s. 46, 470, 464; 1 Roll. Abr. 314, tit. Avowrie (D), pl. 6; 5 Com. Dig. 444, tit. Seisin(C); 5 Com. Dig. 167, tit. Pleader (2 A 1); Co. Litt. 29 a; Noy's Max. 82; post, s. 3.

A PERSON PROPERLY DEPUTED will be sufficient to give an actual seisin, and make a POSSESSIO FRATRIS in him by whom he is so deputed (t).

[57]

[58]

(t) See Litt. s. 432; Co. Litt. 257 b, 258 a; Combes's case, 9 Co. 75; Gilb. Ten. 37; Plowd. 93; 1 Cruise, 307. See Fitz. N. B. 179, G, p. 414, 4to. edit. 1755.

Et pur ceo si tielx heires issi seisis par eux, ou par procuratours, ou par baillyfs, ou autres, que en lour nosme serrount mys e. seisine, soient engettes par autres que p. nous de quel age que ils soient, si volons que ils recoverount par ceste assise, &c. Vide Britt. cap. 42, De Desseisine, 107 a, (232).

And, indeed, when we consider that an ACTUAL SEISIN is necessary to be given and received by the respective parties, in order to give effect and consummation to a feoffment, and that such seisin may be taken BY ATTORNEY (1), (constituted by deed) (2), as well as in person, so as to fix the actual possession in the feoffee; may it not be asked, Why should not the entry by a person lawfully authorized fix the actual possession in the heir? Why may he not thus receive the seisin necessary on a descent, as well as that which is requisite on a purchase? Or as well as recover the actual possession of lands of which he had been disseised (3)? Or as make a continual claim; which will amount in many cases to an actual entry (4)? If he can recover the ACTUAL POSSESSION of lands of which he has been DISSEISED, BY ATTORNEY, why may he not obtain actual possession, by attorney, of lands whereon a stranger has ABATED? In either case he has a right and title

(1) See Co. Litt. 48 b, 49 b, 52; 2 Comm. 315, ch. 20; 3 Com. Dig. 341, tit. Feoffment (B 3); Kitch. 137; Bro. Abr. tit. Feoffment, 67. And see 5 Co. 94 b, 95 a.

(2) See Co. Litt. 52 a, and note (1); 48 b, and note (2); Kitch.

137.

(3) See Co. Litt. 48 b, and note (6).

(4) See Litt. s. 432; Co. Litt. 257.

F

[59]

Act of owner

ship.

But we may observe that POSSESSIO FRATRIS is not much favoured (u): and a stricter seisin is requisite to make such POSSESSIO FRATRIS than even to maintain a writ of right (x).

However, Mr. Robinson conceives that, in all cases, WHERE THE HEIR EXERCISES ANY ACT OF

DOMINION OVER THE INHERITANCE, (as by repairing houses, fences, &c. or by receiving rents, see ante, p. 48), it will amount to an actual entry (y).

to enter (5). And if he can thus recover an actual seisin of lands, when such actual seisin IS IN ANOTHER, why may he not enter, by attorney, where the possession is VACANT, and so no one to suffer? If another enter in the name of the heir, is not there an equal notoriety as if he had entered himself? It has been repeatedly said, that an ACTUAL ENTRY is necessary to avoid a fine levied with proclamations (6); and yet we have seen (7) that such entry may be by attorney.

(u) Per Gould and Blackstone, Justices; 3 Wils. 520. See De Grey v. Richardson, 3 Atkins, 471; Cunningham v. Moody, 1 Ves. 177; Cowper v. Earl Cowper, 2 P. Wms. 735, 6.

And note: It is always intended or presumed, that a person claiming is of the whole-blood, till the contrary be shewn. Kitch. 225 a; and Plowd. 77 a; Trin. 19 Hen. VIII. pl. 6, fol. 11 b.

(x) See Co. Litt. 281 a.

(y Law of Inheritances in Fee-Simple, &c. 33, note (i), ch. 4, cites 1 Leon. 265, and Co. Litt. 15.

(5) Co. Litt. 258 a; and see ibid. 237 b, 238; Bl. Comm. 175, ch. 10. (6) See 2 Com. Dig. 302, 3, tit. Claim (B 1); 6 ibid. 260; Cruise on Fines, 304; Berington v. Parkhurst et al., 2 Strange, 1086; Goodright v. Cator, Douglas, 483; B. N. P. 103; Clerke v. Rowell, 1 Mod. 10; Dates d. Wigfall v. Brydon et al., 3 Burrow, 1897, and Jenkins d. Harris et Ux. v. Prichard et al., post, 113, note (y).

(7) See p. 57, note (3)

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We have before observed (2), that if an elder brother SUFFER A RECOVERY, and die, AND NO Recovery. EXECUTION BE SERVED, it will not make a posSESSIO FRATRIS in him to cause the sister to inherit, to the exclusion of the half-blood; for till execution served, the recovery does not operate.

If the hereditaments claimed be INCORPOREAL, Of incorporeal IT IS REQUISITE, in order to give seisin of them hereditaments. to the heir, so as to make HIM the stock of descent, THAT HE ACTUALLY RECEIVE THE RENT, PRESENT TO THE ADVOWSON, &c. (a), (unless such

(z) Ante, s. 1, p. 18, note (p). [p. 18, note (z)].

(a) See ante, s. 1, p. 23. And see also Co. Litt. 15 b; Fitz. N. B. 36, E; Kitch. 109. It was said by the Master of the Rolls, (Sir Joseph Jekyll), in the case of Penville v. Luscomb, (Mosley's Rep. temp. King, 72,) that, in order to make a possessio fratris of an equity of redemption on a mortgage in fee, the elder brother should have brought his bill against the mortgagee; or the mortgagee should have paid him the rents and profits. And, therefore, where the father made a mortgage in fee, and died after forfeiture, leaving a son and a daughter by one wife, and a son by another, and the eldest son died without bringing his bill, his Honour decreed the equity of redemption to the younger brother [1].

[1] In the case of Penville v. Luscomb stated above, the mortgagee had been in possession without account or acknowledgment. A full report of this case will be found in Appendix, No. 3, to the case of Cholmondeley v. Clinton, 2 Jac. & W. 201. It seems that no decision was ever given. When the mortgaged lands are in the possession of the mortgagor the law is different.

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Appendancies and incidents.

advowson, &c. BE APPENDANT OR APPURTENANT TO A MANOR, &c. of which he has already obtained AN ACTUAL SEISIN). For though, as we have seen (b), a seisin in law in incorporeal hereditaments will, in some cases, entitle an husband to his curtesy, yet it will not be sufficient to turn the descent, but AN ACTUAL SEISIN must be acquired.

If an advowson BE APPENDANT OR APPURTE

(b) Ante, s. 1, p. 39.

In Casburne v. Inglis and Scarfe, 1 Atk. 603; 2 Jac. & W. 194; West's Reports temp. Hardwicke, 221; Lord Hardwicke decided that mere possession of the mortgaged lands, coupled with the receipt of the rents and profits, is a sufficient seisin of an equity of redemption to entitle a husband to his curtesy. His Lordship said, (2 Jac. & W. 197; West, 228,) “ The true question upon this point is, whether there was such a seisin, or possession in the wife, of the equitable estate in the land, as, in the consideration of this Court, is equivalent to an actual seisin of the freehold at the common law; and, upon the best consideration which I have been enabled to give this case, attended with the greatest deference for the decree already pronounced, I am of opinion that there was such a seisin....As there was no foreclosure, as the wife, all along, continued in possession of the estate, and though that possession was at law but as tenant at will to the mortgagee, yet, in equity, it was as owner of the estate, subject to the pecuniary charge or incumbrance; so that there was an equity of redemption, clothed with an actual possession and receipt of the profits which had never been interrupted. From hence it follows that there cannot be a higher instance of an actual seisin of an equitable estate." If then the mortgagor's mere possession and receipt of the rents and profits of the lands mortgaged amounts in equity to an actual seisin, it is sufficient to cause a possessio fratris. The case of Casburne v. Inglis and Scarfe is recognised, and part of Lord Hardwicke's judgment quoted by Sir T. Plumer, M. R., in his judgment in Cholmondeley v. Clinton, 2 Jac. & W. 165. As the act for the amendment of the law of inheritance extends to every interest capable of being inherited, it includes equitable estates; the observation contained in a former note will, therefore, apply as well to an equity of redemption as to an estate in fee-simple at law. See note, ante, p. 50 of this edition.