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I. OUSTER, or amotion of possession, from estates held by either statute or eligit [he has chosen], is only liable to happen by a species of disseizin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold; viz. by assize of novel disseizin.1 But this depends upon the several statutes, which create these respective interests,2 and which expressly provide and allow this remedy in case of dispossession. Upon which account it is that Sir Edward Coke observes,3 that these tenants are said to hold their estates ut liberum tenementum [as a freehold], until their debts be paid: because by the statutes they shall have an assize, as tenant of the freehold shall have; and in that respect they have the similitude of a free-hold.4
II. As for ouster, or amotion of possession, from an estate for years; this happens only by a like kind of disseizin, ejection, or turning out, of the tenant from the occupation of the land during the continuance of his term. For this injury the law has provided him with two remedies, according to te circumstances and situation of the wrongdoer: the writ of ejectione firmae [ejection of farm]; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, who is himself the wrongdoer and has committed the injury complained of: and the writ of quare ejecit infra terminum [why he has ejected within the term]; which lies not against the wrongdoer or ejetor himself, but his feoffee or other person claiming under him. These are mixed actions, somewhat between real and personal; for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong.
1. A WRIT then of ejectione firmae, or action of trespass in ejectment, lies, where lands or tenements are let for a term of years; and afterwards the lessor, reversioner, remainder-man, or any stranger, does eject or oust the lessee of his term.5 In this case he shall have this 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.6 And by this writ it, with damages.
SINCE the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. It may not therefore be improper to delineate, with some degree of minuteness, its history, the manner of its process, and the principles whereon it is grounded.
WE have before seen,7 that 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 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 superior8 to that of the lessor, or by a grantee of the reversion, (who might at any time by a common recovery have destroyed the term9) 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 by any means recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor might indeed by a real action 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 from his farm.10 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 also adopted the same method of doing complete justice; 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 (which go only for damages merely, and are silent as to any restitution) viz. a judgment to recover the term, and a writ of possession thereupon.11 This method seems to have been settled as early as the reign of Edward IV:12 though it has been said13 to have first begun under Henry VII, because it probably was then first applied to its present principal use, that of trying the title to the land.
THE better to apprehend the contrivance, whereby this end is effected, we must recollect that the remedy by ejectment is in its original an action brought by one who has a lease for years, to repair the injury done him by dispossession. In order therefore to convert it into a method of trying titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years, that may be capable of receiving this injury of dispossession. For it would be an offense, called in our law maintenance, (of which in the next book) to convey a title to another, when the grantor is not in possession of the land: and indeed it was doubted at first, whether this occasional possession, taken merely for the purpose of conveying the title, excused the lessor from the legal guilt of maintenance.14 When therefore a person, who has right of entry into lands, determines to acquire that possession, which is wrongfully withheld by the present tenant, he makes (as by law he may) a formal entry on the premises; and being so in possession of the soil, he there, upon the land, seals and delivers a lease for years 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 (either by accident or by agreement beforehand) comes upon the land, and turns him out or ejects him.
For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought against such a casual ejector as is before mentioned, 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. Wherefore it is a standing 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 order to maintain the action, the plaintiff must, in case of any defense, make out four points before the court; viz. title, lease, entry, and ouster. First, he must show a good title in his lessor, which brings the matter of right entirely before the court; then, that the lessor, being seized by virtue of such title, did make him the lease for the present term; thirdly, that he, the lessee or plaintiff, did enter or take possession in consequence of such lease; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judgment to recover his term and damages; and shall, in consequence, have a writ of possession, which the sheriff is to execute, by delivering him the undisturbed and peaceable possession of his term.
THIS is the regular method of bringing an action of ejectment, in which the title of the lessor comes collaterally and incidentally before the court, in order to show the injury done to the lessee by this ouster. This method must be still continued in due form and strictness, save only as to the notice to the tenant, whenever the possession is vacant, or there is no actual occupant of the premises; and also in some other cases. But, as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premiss in dispute, was invented somewhat more than a century ago, by the lord chief justice Rolle, who then sat in the court of upper bench; so called during the exile of king Charles the second. This new method entirely depends upon a string of legal fictions: no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title. To this end, in the proceedings15 a lease for a term of years is stated to have been action; as by John Rogers to Richard Smith; which plaintiff ought to be some real person, and not merely and ideal fictitious one who has no existence, as frequently though unwarrantably practiced:16 it is also stated that Smith, the lessee, entered; and that the defendant William Stiles, who is called the casual ejector, ousted him; for which ouster he brings this action. As soon as this action is brought, and the complaint fully stated in the declaration,17 Stiles, the casual ejector, or defendant, sends a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by Richard Smith, and transmitting him a copy of the declaration; withal assuring him that he, Stiles the defendant, has no title at to the premises, and shall make no defense; and therefore advising the tenant to appear in court and defend his own title: otherwise the casual ejector will suffer judgment to be had against him; and thereby he, the actual tenant Saunders, will inevitably be turned out of possession.18 On receipt of this friendly caution, if the tenant in possession does not within a limited time apply to the court to be admitted a defendant in the stead of Stiles, he is supposed to have no right at all; and, upon judgment being had against Stiles the casual ejector, Saunders the real tenant will be turned out of possession by the sheriff.
BUT if the tenant in possession applies to be made defendant, it is allowed him upon this condition; that he enter into a rule of court19 to confess, at the trial of the cause, three of the four requisites for the maintenance of the plaintiff’s action; viz. the lease of Rogers the lessor, the entry of Smith the plaintiff, and his ouster by Saunders himself, now made the defendant instead of Stiles: which requisites, as they are wholly fictitious, should the defendant put the plaintiff to prove, he must of course be nonsuited for want of evidence; but by such stipulated confession of lease, entry, and ouster, the trial will now stand upon the merits of the title only. This done, the declaration is altered by inserting the name George Saunders instead of William Stiles, and the cause goes down to trial under the name of Smith (the plaintiff) on the demise of Rogers, (the lessor) against Saunders, the new defendant. And therein the lessor of the plaintiff is bound to make out a clear title, otherwise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted. But, if the lessor makes out his title in a satisfactory manner, then judgment and a writ of possession shall go fro Richard Smith the nominal plaintiff, who by this trial has proved the right of John Rogers his supposed lessor. Yet, to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land, all tenants are obliged by statute 11 Geo.II. c.19. on pain of forfeiting three years rent, to give notice to their landlord, when served with any declaration id ejectment: and any landlord may by leave of the court be made a co-defendant to the action; which indeed he had a right to demand, long before the provision of this statute:20 in like manner as (previous to the statute of Westm. 2. c.3.) if in a real action the tenant of the freehold made default, the remainder-man or reversioner had a right to come in and defend the possession; lest, if judgment were had against the tenant; the estate of those behind should be turned to a naked right.21 But if the new defendant fails to appear at the trial, and to confess lease, entry, and ouster, the plaintiff Smith must indeed be there nonsuited, for want of proving those requisites; but judgment will in the end be entered against the casual ejector Stiles: for the condition on which Saunders was admitted a defendant is broken, and therefore the plaintiff is put again in the same situation as if he never had appeared at all; the consequence of which (we have seen) would have been, that judgment would have been entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered possession to Smith. The same process therefore as would have been had, provided no conditional rule had been made, must now be pursued as soon as the condition is broken. But execution shall be stayed, if any landlord after the default of his tenant applies to be made a defendant, and enters into the usual rule, to confess lease, entry, and ouster.22
THE damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) very small and inadequate; amounting commonly to one shilling or some other trivial sum. In order therefore to complete the remedy, when the possession has been long detained from him that has right, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the judgment, or his lessor, against the tenant in possession; whether he be made party to the judgment, or suffers judgment to go by default.23
SUCH is the modern way, of obliquely bringing in question the title to lands tenements, in order to try it in this collateral manner; a method which is now universally adopted on almost every case. It is founded on the same principle as the ancient writs of assize, being calculated to try those real actions, as being infinitely more convenient for attaining the end of justice; because, the form of the proceeding being entirely fictitious, it is wholly in the power of the court to direct the application of that fiction, so as to prevent fraud an chicane, and eviscerate he very truth of the title. The writ of ejectment and its nominal parties (as was resolved by all the judges24) are “judicially to be considered as the fictitious form of an action, rally brought by the lessor of the plaintiff against the tenant in possession: invented, under the control and power of the court, for the advancement or justice in many respects; and to force the parties to go to trail on the merits, without being entangled in the nicety of pleadings on either side.”
BUT a writ of ejectment is not an adequate means to try the title of all estates; for on such things whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament;25 except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII. c.7. which doctrine has since been extended by analogy to tithes in the hands of the clergy:26 nor will it lie in such cases, where the entry of him that has right is taken away by descent, discontinuance, twenty years dispossession, or otherwise.
THIS action of ejectment is however rendered a very easy and expeditious remedy to landlords whose tenant are in arrere, by statute 4 Geo.II.c.28. which enacts, that every landlord, who has by his lease a right of re-entry in case of non-payment of rent, when half a year’s rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of the premises, which shall be valid, without any formal re-entry or previous demand of rent. And a recovery id such ejectment shall be final and conclusive, both in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards.
2. THE writ of quare ejecit infra terminum lies, by the ancient law, where the wrongdoer or ejector is not himself in possession of the lands, but another who claims under him. As where a man leases lands to another for years, and, after, the lessor or reversioner enters and makes a feoffment in fee or for life of the same lands to a stranger: now the lessee cannot bring a writ of ejectione firmae or ejectment against the feoffee; because he did not eject him, but the reversioner: neither can he have any such action to recover his term against the reversioner, who did oust him; because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute Westm. 2. c. 24. as in case where no adequate remedy was already provided.27 And the action is brought against the feoffee for deforcing, or keeping out, the original lessee during the continuance of his term: and herein, as in the ejectment, the plaintiff shall recover of much of the term as remains, and also damages for that portion of it, whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession (by what means soever he acquired it) this action is fallen into disuse.
NOTES
1. F.N.B.178.
2. Stat. Westm.2. 13.Edw. I.c.18. Stat. de mercatoribus [of merchants], 27 Edw. III. c.9.
3. 1 Inst.43.
4. See book II. ch.10.
5. F.N.B.220.
6. See appendix, No.II. § 1.
7. See pag.150.
8. F.N.B. 145.
9. See book II. ch.9.
10. p.6. Ric.II. Ejectione firmae n’est que un action de trespass en son nature, et le plaintiff ne recovera son terme que est a venir, nient plus que en trespass home recovera damages pur trespass nient fait, mes a feser; mes il convient a suer par action de covenant al comen law a recoverer son terme: quod tota curia concessit. Et per Belknap, la comen ley est, lou home est ouste de son terme par estranger, il avera ejectione firmae versus cestuy que luy ouste; et fil soit ouste par son lessor, briefe de covenant; et si par lessee ou grantee de reversion, briefe de covenant versus son lessor, et countera especial count, etc. [A writ of ejectione firmae is in its nature merely an action of trespass, and the plaintiff shall only recover that part of the term which is unexpired, the same as in trespass, a man shall recover no damages for a trespass not committed but to be committed. But to recover his term he must sue by an action of covenant at common law; to which the whole court assented. And per Belknap, where a man is ousted from his term by a stranger, the common law is, that he shall have a writ of ejectione f irmae against him who ousted him; and if he be ousted by his lessor, a writ of covenant; and if by the lessee, or grantee of the reversion, a writ of covenant against his lessor, and he shall count a special count, etc.] (Fitz. abr. t. eject. firm.2.)
11. See append. No.II. § 4. prope fin.
12. 7 Edw. IV.6. Per Fairfax; si home port ejectione firmae, le plaintiff recovera son terme qui est arere, sibien come in quare ejecit infra terminum; et, si nul soit arere, donques tout in damages. [If a plaintiff bring a writ of ejectione firmae he shall recover the remainder of his term as well as in a quare ejecit infra terminum, and, if it be all run out, he shall recover the whole in damages.] (Bro Abr. t. quare ejecit infra termnum. 6.).
13. F.N.B.220.
14. 1 Ch. Rep. append.39.
15. See appendix, No.II. § 1,2.
16. 6 Mod.309.
17. Append. No.II. § 2.
18. Ibid.
19. Ibid. § 3.
20. 7 Mod.70. Salk.257.
21. Bracton l.5.c.10. § 14.
22. Stat. 11.Geo.II.c.19.
23. 4 Burr.668.
24. Mich.32 Geo.II. 4 Burr.668.
25. Brownl.129. Cro. Car.492. Stra.54.
26. Cro. Car.301. 2 Lord Raym.789.
27. F.N.B. 198.
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