may hear the parties and confirm, or not, as the case may be: Also, by this act of 1791, in all other cases where an inquest of office is necessary by law, to entitle the State to hold lands &c., such inquest shall be taken by the Supreme Judicial Court in the county where the estate lies, on information of the attorney-general, stating the title &c. The proceedings to be as above; except where there is no tertenant, notice is to be published &c. If decided for the State, the judgment is, that it be seized, and execution issues for costs; but otherwise, costs for the deft.; and if judgment be, that the State be reseized or seized, the State immediately thereon shall be deemed and taken in the law, to be in fact, seized of such lands &c. to all intents: Also by this act, if the State be entitled to lands for condition broken, there must be process against the party in possession, and in all other cases, where an inquest of office is necessary by law, there shall be process against such party; therefore, the question may often arise, when is such inquest necessary. And, § 5. 1. It cannot be necessary where the State is in possession by its tenant, or otherwise. § 6. 2. It cannot be necessary where the land is vacant, and nobody in possession; for then the law deems the State in possession, because it has the title. But § 7. 3. This or some process is necessary, for the State to gain possession of lands where it is entitled to them, in all cases when the possession is not in the State, or is not vacant, but full; that is, where there is the possession of some person not under, but adverse to, the State's title. This act directs the title of the State to be stated, in all cases, in the information filed by the attorney-general. It seems to be clearly settled, that the State does not fully acquire the lands of one, even an alien, till inquest of office found. See Aliens &c. CH. 178. Art. 20. dens and § 8. But in this case several distinctions are taken, and 4 Co. 54,case several points decided: 1. That when the king's tenant, seiz- of the Wared of lands in fee, dies without heirs, the fee and freehold is Commonalty immediately after his death, and before office found thereof, of Sadlers. cast upon the king; for in such case it ought to be in some person, and if any person enters into the land, and takes any of the profits, an information of intrusion for the king may be preferred against him, before office or seisure; for the king immediately, by the death, is in actual possession, and has not only a freehold in the law as a common person in such case has;" and this difference was argued "when the king's tenant dies in possession, without heir, so that in such case possessio est vacua, and in nobody, there the law will adjudge the king in actual possession immediately; but when CH. 178. another is in seizin and possession, at the time of the escheat, Art. 20. so that possessio plena est, and not vacua, there the king shall not be adjudged in possession, till this seizin and possession be removed; as if the king's tenant is disseized and dies without heirs; or if an alien born, or the king's villain, or the alienee in mortmain is disseized, and all this is found by office, in these cases the king shall not be in possession, until the possession and seizin of the tertenant is removed." if the king lease to A for life, and he dies, in this case the possession shall be actually in the king, without any entry or seisure; and when no man is in possession, it shall be adjudged to the king according to his title. 6 Co. 53, Page's case. Commonwealth v. Prescott & al. Cumber land county, 1798, S. J. Court. $9. 2. The various ways are stated by which the king may be entitled to estates; as by attainder; by alienation. in mortmain; purchase by alien born; by death without heirs &c. 3. Shews where one may not traverse, or must have his petition of right in nature of his real action, to be restored to his freehold or inheritance, as to the king; but where the inquest of office, at common law, found for the king; the title or other interest in the same office, of the party, was also found, there he might have his monstrans de droit; because his title appears by the same record by which the king is entitled. The same if land be granted to the king on condition, to be performed of record, and the party has so performed, or the performance is found by office, he has this monstrans de droit. § 10. Held, in the case of an alien &c. the inheritance or freehold is not vested in the king till office found, and that an alien, surviving joint-tenant, shall hold the lands till office found. The same principle has been adopted in this State. § 11. Pleadings. This was an inquest of office for condition broken in the case of Shepherd's grant, made on condition, March 8, 1777. The information was in common form, stating the grant and conditions, the grantee's seizin under it; profert of the resolve making the grant; and alleging the grantee did not perform the conditions, but broke them, whereby the State had good right to be revested of the lands; that the defts. hold a part &c. described as assigns of Shepherd; prays process against them, and that the State be reseized, and for costs. Besides the general issue, the defts. pleaded a second plea in bar, as to part, in a special form, as in the subjoined note :* also a third plea, as in said note. The object of each in *And the said James, Oliver, and George, by leave &c., defend &c., and further say, that as to part of the tracts in the information last described, bounded &c.; by any thing by the attorney-general in the information al formation, is to cause the Commonwealth to be reseized of CH. 178. the lands it has previously granted on condition, for condi- Art. 21. tion broken, or in other cases, to cause it to be seized. ART. 21. Title and seizin &c., how pleaded. § 1. In pleading title or seizin in real actions, whether by demandant or tenant, plt. or deft., vouchor or vouchee, it is material to regard certain technical expressions, well formed by time and experience, to express the point in the case, and well suited to each kind of estate, and apply to all parts of pleadings in land actions. 1st rule.—If one allege a title in himself in the freehold Co. Lit. 17.or inheritance of lands, in possession, he ought to say, he 1D. & E. 96. was seized. § 2. 2d rule.—If he be seized in fee, he ought to say, in his Co. Lit. 42demesne as of fee; if in tail, as of fee tail; if for life, seized 5 Com. D. for the term of his life. § 3. 3d rule. If one have "the seizin in fee, it is sufficient to allege that generally, because that gives him a good title against all men except the disseizee;"" but now particular 335. estates are not framed by the law, but by contract, therefore 12 Mod. 191, you must shew what that contract is," and how it come to be Silly v.Dally. made. 5 Com. D. § 4. 4th rule.—If one allege seizin of things manurable, as Lit. sec. 10.lands, tenements, or rents, &c., he ought to say, that he was seized in his demesne as of fee. leged, the Commowealth ought not to be reseized of the same, because they say that the General Court of the the late State of Massachusetts Bay, in and by a certain resolve, passed on June 24, 1779, wherein the said General Court did, among other things, recite the resolve or grant, in the information mentioned, and that one of the conditions of the grant, was, that the said Alexander Sepherd jun., should furnish said State with an accurate map of all the late province of Maine, to the acceptance of the General Court; and that he had executed a plan of the said Province of Maine, to the acceptance of the General Court, and presented it for acceptance to the said General Court, and it was accepted; and it was confirmed to him, his heirs, and assigns forever, by the following bounds, viz. : he fulfilling the contions in the said grant; which said tract last described, includes the part first above mentioned; and this they are ready to verify, wherefore the said J., O., and G. pray judgment &c. Demurrer to this plea, and held bad, as the State did not waive the breach of condition. And as to the residue of the tract in the said information, last described, the said J., O., and G. say that by any thing by the attorney-general, in the information alleged, the Commonwealth ought not to be reseized of the same, because they say, that the said Alexander Shepherd jun., did, on the said last day of September, 1777, deliver to the said General Court, to its acceptance, an accurate map of the description in said information mentioned, according to the condition aforesaid, and thereof the said J., O., and G. put themselves on the country, and the said Commonwealth doth the like. In Dowland v. Slade & ux., 5 East, 272, it is said "the tenant, generally speaking, is to begin, and shew he has more mere right "than the demandant;" and generally as to opening and closing, we do not seem to have followed the English practice. 335. CH. 178. 27 H. VIII. 4. 335. § 5. 5th rule. But if seized of things not manurable, as of an advowson, reversion, or remainder, after an estate for life, he ought to say, he was seized as of fee and right. Pl. Com. 181; 5 Com. D. 335; Pl. Com.191; 5 Com. D. 335, 394, 395. § 6. 6th rule. But if one be seized of a reversion, after a term for years, he may say, he was seized as of fee and right; for he has not the occupation: also, he may say, in his demesne as of fee; for he has the possession of the freehold, and may have had an assize. § 7. 7th rule. If the estate be to husband and wife for life, 5 Com. D. and to her heirs, it ought to be alleged, that by virtue whereof, they were seized to them, and the heirs of the wife in her right, and husband and wife in her right in fee. See Polyblank. Hawkins. 5 Com. D. 335.-1 D. & E. 96. F N. B. 1.3 Bl. Com. and $8. 8th rule. If one alleged possession of a term for years, or other chattel real, he ought to say, he was possessed. § 9. In a writ of right, the highest writ in the law, which lies only for a fee simple estate, the demandant deAppen. 2 & 3. mands the estate " as his right and inheritance;" and he -3 Wils.419. must allege his ancestor was seized of right, as well as that -5 East,272. he was seized in his demesne as of fee;" but he states no & 2, notes- disseizin, but only that the deft. unjustly deforces him. On 5 East, 272.- the mise joined, the issue is, whether the deft. has better -F. N. B 1 3 Bl. Com. 196, 305.Booth, 85, 111,112,113. -5 East,289. -3 Bl. Com. 196, Appen. 5,6.-See art. 34. 3 Bl. Com. Co. L. 281, 293, 294. 66 right to hold the estate to him and his heirs, as tenant thereof, as he holds the same; or the demandant to have the same as he demands it. But it does not appear to be decided, whether claiming the estate as his right and inheritance does not render the allegation, seized of his right, unnecessary. The verdict finds the demandant has more right to have the estate to him and his heirs, as he demands it, than the deft. to hold it, as he now holds it. 2 Saund. 45; 4 Co. 8: Plt. must prove his seizin. It § 10. This writ of right lies principally in four cases. 191 to 194. lies concurrently with all real actions, in which an estate of fee simple may be recovered; and it also lies after them. An infant disseizor may recover in a writ of right against -5 East,289. his alienee; "for as between such parties the disseizor has the greater right." Lit. sec. 478. 3 Bl. Com. The fourth case in which a writ of right lies, is where the 191-3 Com. demandant is barred from his possessory action, by length of time, or acts of limitations. D. 544. 3 Bl. Com. 196.-F. N. B. 3. 3 Com. D. § 11. In the pure writ of right, the demandant must state seizin in himself, or some one under whom he claims, and then derive, his title, from such person, and this seizin 544, 545.-1 must be within sixty years; and this writ must be brought against him who has a freehold in the land.-By our late H. Bl. statute forty years. The actual seizin must be by taking CH. 178. the esplees or profits. them. Griffith.-2 Harvey. a 4.-Bul. N. Art. 21. § 12. One in possession of land need not shew any title or consideration for such possession, against a wrongdoer or 1 Wils. 326, mere stranger; otherwise, against the owner of the soil. Kenrick v. Taylor.-1 Blakely v. Slater, Cro. Car. 575; Land's case. In a writ Burr 440, of right by four nieces and co-heirs of J. S., they must state Warring v. and shew how heirs, as well as that the land descended to Bos. & P. Nor need the deft. in ejectment shew title against a 453-3 plt. whose title is expired. 4 D. & E. 682; Bul. N. P. 110: Johns. R. 1,8. or where the deft. proves a title out of the lessor; id.; for 6 Wheat,580. in such case the deft's. possession is sufficient for his defence; but then the title out of the plt. must be a subsisting one; and if an ancient lease for a thousand years, be the third person's title, his possession under it within twenty years must be proved. Bul. N. P. 110. Clearly in eject- 4 Burr. 2484, ment, the plt. must recover on his own title alone, not on the Haldam v. weakness of the deft's.; "for possession gives him a right see Doe v. against every man who cannot show a good title.” 5 D. & Pegge.-See E. 107, 110, Martin, lessee of Tregonwell v. Strackean. Ch. 228, a. 3, These cases are clear; but the difficult question is, if the plt. P. 110.-1 D. can recover if the deft. can show a superior title in a third & E 358-2 person, with whom he does not claim any privity; or rather D. & E. 684. if the deft. can be permitted to show such title. The point is not settled fully. The second mortgagee sues the mortgagor, he is not allowed to show the title of the first mortgagee to bar the second, the deft. being barred by his own act to aver he had nothing in the land at the time of the second mortgage. See Ch. 178. a. 23, s. 22; lessee had owned his lessor's title, so not allowed to show title in a third person. 7 Johns. R. 157, 160; 10 Do. 292. The same estoppel by acknowledgment. Doe v. Clark, 14 East, 488. On the principle, one 10 Johns. R. holding the land under the lessee cannot deny the lessor's 223. title. See Jackson v. Bush, Ch. 136. a. 19, s. 12. A in possession of land, covenants with B, to pay him for it, B is estopped to allege an outstanding title to bar A's ejectment. 14 Johns R. 224; see Knox v. Jenks, Ch. 104, a. 3, s. 28. One in possession of land A died seized of, cannot set up his heirs' title, to defeat his administrator's sale of it. It is Gould v. clear the plt. in ejectment must show he has a good posses- Newman. sory title; as mortgagee, for instance; and if he assign and then sue the mortgagor, he may plead the assignment, and shew the mortgagee (plt.) has sold to a third person. See the case at large, Ch. 112, a. 5, s. 18; this case is direct to the point, but proves the title in the third person must be plead ed, and is not in evidence; but to plead title, to bar the plt., Wolcot v. in a third person, he must have a legal, not a mere equitable Knight & al. |