CH. 178.

Art. 14.

Ch. 91, a. 6.

8 D. & E.487. 3 Johns. R.

§ 2. Where the title of the plt. in ejectment is ended, see England v. Slade; and where the plt. may recover on twenty years possession. Stokes v. Berry, 2 Esp. 127 &c.; 2 Selw. 617. Lies for a coal mine. Cro. Jam. 150. Thus this action has been extended in England, and in 8 Mod. 277. those of the United States, which have adopted it according 1 Burr.627.-to the English practice; but thus extended, it lies only for him, or on the title of him, who has a right of entry; and 283.-Lies only for things on which an actual entry can be made. not for tenant Hence, even in this extended form and condition, it is very fore entry; 1 for years bedifferent from our old ejectment, not only as to lease, entry, Cruise, 248. and ouster, but as to the different kinds of titles and wrongs to be asserted and stated in it; as in ours, as stated above, all the titles and wrongs could be asserted and stated, usually asserted and stated in all the ancient writs of right, formedon assize, entry, &c. in all their various forms and uses.

§ 3. For what ejectment does or does not lie, see Goodright 7. Hood, 3 Wils. 23; and 1 Burr, 143 to 147, Goodtitle v. Archer & al.; and Strange, 59; 2 Esp. 127 to 161, in England.

v. Horde.

§ 4. In England, judgment in ejectment is a recovery of 1 Burr, 60 to the possession, without prejudice to the right, and the plt. hav- 127, Taylor ing only a naked possession, can convey no more-pages 114, Lies for a de119 is a possessory remedy, and lies only where the lessor visee against of the plt. has a right of entry, or may legally enter; then the an heir; 6 Cruise, 9, 20. plt. must always shew his lessor might enter by proving 3 Cruise, possession within twenty years; and twenty years adverse 543.-The possession is a positive title to the deft. It is not a bar to the lessor of the plt. in ejectremedy only, but it takes away the right of possession. Every ment cannot plt. in ejectment must shew a right of possession, as well as of release the property; therefore the deft. need not plead the act of limita- action, 4 tions, as in other cases; a special verdict ought to find that 300. the lessor of the plt. might enter when he brought the action.

§ 5. On the whole, ejectment, as formerly understood in Massachusetts, and as understood in England, in its broadest sense, appears to be to purposes as different as the old feudal land action and a modern suit, grounded on a right of possession and of entry, with an entry in fact made or confessed.

Maule & Sel.'

§ 6. It is a settled rule in ejectment, as in most other real 1 Burr, 329. actions, that the plt. or demandant may recover a part of the land or thing he sues for, and this as to time or quantity; but the jury must ascertain with certainty, the part to be recov ered; or such part may be ascertained in the pleadings.

Skinner, cit

§ 7. Therefore, when the plt. demanded one fourth of one 5 Bac. Abr. fifth part of a field, the jury found, and he recovered one third 307, Ablitt v. of one fourth of one fifth; and the court said, the jury may ed from 1 always find the deft. guilty in ejectment, as to so much as Sid. 229. the plt. proves title to; the same in formedon.

CH. 178.

§ 8. Hence, when the demandant, in formedon, sued for a Art. 14. fourth part, he recovered a fifth part. He in the course of the trial having proved title to recover only a fifth in his particular form of declaring; though in reality entitled to a fourth.

5 Mass. R. 535, Dingley v. Dingley.

3 Bl. Com. 183 to 188.

Register, 226. -1 Com. D.

may apply to have their

names struck

claration

without

costs; 1

or

§ 9. Though under the name of ejectment we adopted near all the English writs in substance, yet in some of their properties we never adopted the English real action. In proceeding in our writ of right, we never employed any but our common jury of twelve men; nor was the assize of mort d'an579.-If the cestor ever in use here, because our lands have ever been plt. count on demises by divisible: and in this action first introduced in the time of H. persons dead, II., whether brought on an abatement made on the death of the deft. even the plt's. father, mother, brother, sister, uncle, aunt, nephew, after entering into the con- niece, or on the death of his grandfather or grandmother so sent rule, de avo; or death of his great-grandfather or great-grandmother; so besayle or de proavo, or on the death of any collateral relation, other than those above mentioned, and so writ of cosinage, out of the de- inquiry was made but on two points, to wit: 1. If the ancestor died seized: 2. If the demandant was his next heir; now both may be found in the affirmative, where lands are Caines' R.20. divisible and yet the demandant have no title; for though the ancestor died seized, and the demandant be his next heir, yet the ancestor may have devised away the lands, so that this heir may have no title to them. I have never seen in our practice any formed action that has been like the English writ of nuper obiit, another ancestral action, that is, an action brought where the ancestor died having several heirs, and one held the others out of possession, to establish a division; but a man never could have of the any actions that possessory inquired only of the ancestor's seizin at his death, on an abatement happening on the death of a collateral relation beyond the fourth degree; but have ever had writs the same in one respect as the English assize of novel disseizin; that is, a writ of entry in the quibus, in the nature of an assize, to prove the demandant's seizin or possession; a writ stating his seizin and his disseizin, committed by the deft.; in this the demandant proved, first, a title; second, his actual seizin thereon; and third, his disseizin by the defts., and proving these recovered; upon examining our forms of writs and declarations, it will be found we ever have had those which have stated and provided on these very points or grounds. But by 4 Ed. I. Ch. 1., costs and damages were annexed to these possessory actions of assize and entry, while the tenant claimed the profits to enable him to do the feudal duties; but as to damages we never have adopted the principles of this statute; that is, to recover them in the same action in which the land is recovered; this never has been done in our practice in Massachu

One claiming to be admitmust shew a privity with

ted as deft.

the tenant;

1 Caines' R. 151.

setts, if in any other State in the Union. Nor did our ancestors here ever adopt this English feudal principle, allowing the tenant profits, because he performed, or was liable to perform the feudal duties; but instead thereof, the profits here have been recovered in an action of trespass brought expressly for the mesne profits.

§ 10. In Caines' Reports, vol. i. (New York), it is stated, that a tenant in possession before the action of ejectment is commenced, cannot be dispossessed on a judgment and execution to which he is not a party; and if on a writ of possession a wrong person be turned out, the court will restore him on motion; and it is very proper that a man be not turned out of possession before he is called on to defend his possession, which is on general principles prima facie evidence of title.

Cн. 178.

Art. 14.

Livermore.

§ 11. The court will never permit the heir to be disinherited 10 Johns. R by mere conjecture; nor will defts. be allowed to show the 358, Brant v. premises lay out of lot No. three, after he had taken a lease of them from the ancestor, as being within that lot, and had occupied and paid rent for them as such; cited 2 Schoales & Lefroy 72; 2 Campb. N. P. 12.

Horde.

§12. The effect of a recovery in ejectment.-Lord Mansfield 1 Burr, 114, said, it is a recovery of the possession (not of the seizin or free- Atkins v. hold) without prejudice to the right, as it may afterwards 3 Johns. R. appear even between the same parties; this principle is recog- 269. nized in New York.

Grimstone v.

Crab.

§ 13. In this case, sixteen ejectments and sixteen several is- Barnes, 176. sues thereon, and each declaration contained many messuages, Burgers.-2 and were word for word the same; and the court ordered Stra. 1149, them to be consolidated on motion, though opposed by the Smith v. plts. on the ground torts are in their nature several; but in See Ch. 228, this case, Smith v. Crab, there were ten declarations on the a. 4, s. 11.— same demise for ten houses in the occupation of ten persons, 11 Co. 5. said to be on the same title, the court refused a motion to consolidate, but solely on the plt's. account, because it might oblige him to go on in all, when he might be ready only in some of the actions, and he might have sued them at different times.

v. Bradt.

§ 14. Tenants in common in New York, may declare either 2 Caines' R. on a joint or separate demise; and separate demises from 169, Jackson several lessors between whom there is no privity of interest, 12 Johns. R. may be laid in the declaration; and at the trial the plt. may 185, Jackson prove separate titles to separate parts of the premises. and . Sidney. recover accordingly; here is no surprise on the deft. and a multiplicity of actions is avoided.

§ 15. The plt. must declare according to his title. If he has 2 Phil. Evid. 171; see Lit. Sect. 316, Co. L. 45.-12 East, 57, Doe v. Read --3 Taun. 120, Doe v. Chaplin-12 East, 221, Doe v. Grant.--Ch. 92, a. 1, s. 11; Doe v. Prosser.

CH. 178.
Art. 14.

Doe v. Smith. 4 Maule & Sel. 347-2 W. Bl. 1259.

England v.
Slade.

2 Phil. Evid.

a joint lease from several persons, he must so declare and prove that they have such an interest as to enable them to join in a lease, and if made by A, tenant for life, and B, in remainder, hence in A's life, the plt. must declare as on a lease made by him, and after his death on a lease made by B. Plt. may declare on the several demises of each joint tenant, as well as on the joint demises of all, as thereby he has the entire interest; and if the deft. pay one entire rent to the common agent of the plt's. several lessors, it will prove a joint demise. See how an award binds the right so as not afterterwards to be disputed in ejectment, c. 13. a. 4, s. 7; ouster of one tenant in common where presumed, what is a disseizin of one by another, c. 104, a. 3, s. 8. See Doe v. Bird, 11 East, 49; 3 Maule & Sel. 275.

§ 16. Neither the tenant who accepts a lease and pays rent, or any person claiming under him, is allowed to dispute the landlord's title, nor can the tenant put a third person into possession so as to enable him to set up an adverse title at the trial in ejectment, Hodson v. Sharpe, 10 East, 353; but the tenant may shew after he paid the last rent, his lessor's title ended. 4 D. & E. 682; 3 Maule & S. 516, Doe v. Ramsbotham; Doe v. Watson, 2 Starkie, N. P. Ch. 231; 7 East, 363; 6 East, 530.

§ 17. Non payment of rent. It must be demanded at the 178, Good day of payment, and at the place of payment, or if none be right v.Cator, Dougl.477. appointed, on the most conspicuous parts of the premises, in 7 East, 363, order to authorize ejectment for not paying it. Co. Lt. Doe v. Davis. 202; 4 Co. 73, ; Duppa v. Mayo, 1 Saunders, 287, Willes, -2 Co. 64, case of Pen- 505; 17 Johns. R. 66, Jackson v. Harrison. The lessor

ant.

1 Hen. & M.

ington v. M'Donald.

waives the forfeiture by the lessee of his lease by accepting rent accruing after the forfeiture; Goodright v. Davids, Cowp. 803; but otherwise if there be a clause in the lease, it be null and void on non-payment. Willes, 176, Jones v. Verney. If a lease for years be voidable without entry; not so a lease for life.

§ 18. In ejectment, evidence cannot be introduced to prove 306, Wither that a patent was obtained irregularly, especially if no fraud be alleged, and no caveat entered against issuing it. See Hambleton v. Wells, p. 307; fraud, among other things, charged.

1 Hen. & M. 532.--Thru

stout v. Grey

§ 19. Ejectment does not abate by the death of the lessor of the plt.; Kenny v. Beverley. He died after the action & al.-2 Bl. was carried into the court of appeals. In this case, judge Tucker relied much on the case in 2 Stra. 1056; in which 204, 214, and the lessor of the plt. died after verdict in ejectment; the Washington lessor was tenant for life; held, though "the possession cannot be obtained, yet the plt. has a right to proceed for damages

Com. 203,

Carter v.

& al.

and costs." Judge Roane said in this case, Kinney v. Beverley, the plts. term was continuing, and he had a right to recover possession, damages, (though nominal) and costsrelied on Blackstone's idea, that the pit. is a real party, 205, and Appendix, No. 2, s. 4. But see Aslin v. Parkin, Ch. 42, a. 2, s. 14, and Ch. 132, a. 8, s. 6; but if the lessor of the plt. die, security and costs must be given; 2 Hen. & M. 31; but if not, it is no error; 2 Hen. & M. 611, Purvis v. Hill.

CH. 178.

Art. 14.

Hen & M.

§ 20. Ejectment by Beverley in the District Court of Staun- Kinney v. ton, for certain lots, &c., and held: 1. They were not for- Beverley, 2 feited by an act of December 30, 1790, &c. unless assessed 318, 344. and listed by the commissioner of the revenue, returned to the auditor of public accounts by the sheriff or collector, and advertised by the treasurer, as directed by the act, section 4, incorporated into the 34th section of the act of December 13, 1792: 2. If the jury find twenty years' possession in the plt. he recovers, though one of his title deeds be not indented, and expresses no consideration. The sta tutes of Virgina minutely provide for assessing and collecting taxes; and when laid on a tract of land, if not paid in three years, the right to it is forfeited to the State, and vested in it, and lost by the owner. By the constitution of Virginia, all escheats, penalties, and forfeitures the king had, now belong to the State; lands were once forfeited for not paying his quit rents (2s. one hundred acres); abolished by an act of May, 1779. Hence there is now in the State no forfeiture of lands whatever, except such as are positively provided for by some statute. And by an act of 1794, c. 74, forfeiture of lands, for treason, and other offences, was wholly abolished; but escheats of the land purchased by aliens remain. And if the king or state have but a right to lands, there is no seizin to Dowtie's enable either to convey till office found. See Seizin and Dis- case, 3 Co. seizin, Ch. 104, a. 3, s. 1 to 41. So, if only a right be forfeited for non-payment of taxes. See Estates by forfeiture, Ch. 136.

10.

§ 21. This was ejectment for three thousand five hundred Carter's acres of land in Fairfax county, brought by Charles Carter Trustees v. Washington v. Edward Washington & al. Held, when Robert Carter and & al. 2 Hen. others were tenants in common of certain land, and he had & M. 345, sold a part thereof to Edward Washington and others, and a 355. decree for partition was obtained by the other tenants in common against Robert Carter, in a suit commenced after the sale, was no evidence in their favor in ejectment against the venders who were no parties to the partition suit ;-the partition was by chancery process.

§ 22. Ejectment to recover lands in Virginia, conveyed in trust Pollard v. to secure a British debt; defence usury. The jury found a Baylor's Despecial verdict, stating that August 24, 1790, Baylor was &M. 223,242.

VOL. VI.

9

visees,4 Hen.