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The Court of appeals of Virginia, at different times have decided differently on the same law; but the Courts

of Kentucky have always decided, that when the reason &OTHERS. of the English law ceased in consequence of the different

circumstances of the country, the law itself ceased.



Friday, March 11th. Present.... All the Judges.

STORY, J. delivered the opinion of the Court as follows :

This is a writ of right brought by the Demandant against the tenants, to recover seizin of a large tract of land set forth in the count. At the trial in the Circuit Court for Kentucky district, several questions arose upon which the Court were divided ; and these questions are now certified for the opinion of this Court.

As to the first question, we are satisfied that the Circuit Court had jurisdiction of the canse. Taking the 11th and 20th sections of the judicial act of 1789, ch. 20, in connexion, it is clear that the jurisdiction attaches where the property demanded exceeds $ 500 in value; and if, upon the trial, the Demandant recover less, he is not allowed his costs; but, at the discretion of the Court, may be adjudged to pay costs.

As to the second question, we are of opinion that, at common law, a writ of right will not lie, except against the tenant of the freehold :lemanded. If there are several tenants claiming several parcels of land by distinct titles, they cannot lawfully be joined in one writ; and if they are, they may plead in abatement of the writ. If the Demandant demands against any te-, nant more land than he holds, he may plead non-tenure as to the parcel not holden; and this plea, by the ancient common law, would have abated the whole writ. But the statute 25, Edw. 3, .ch. 6, which may be considered as a part of our common law, having been in force at the emigration of our ancestors, cured the defect, and declared that the writ should abate only as to the parcel whereof non-tenure was pleaded, and admitted or proved. In fact the act of Virginia of 1792, ch. 125, which is in force in Kentucky, enacts substantially the same provision as the statute of Edward.



But it is supposed, in argument, that the act of Kentucky, to amend proceedings in chancery and common law, which provides that if the Plaintiff at law shall prove part of his demand or claim set up in his declara- &OTHERS. tion, he shall not be non-suited, but shall have judgment for what he proveș, entitles the Demandant in this case to join parties who hold in severalty by distinct titles.

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To this doctrine the Court cannot accede. At common law, in many instances, if the party demanded in his writ more than he proved was his right, he lost his action by the falsity of his writ. It was to cure this ancient evil that the act of Kentucky was made. It enables the party to recover, although he should prove only part of the claim in his declaration. But it does not tend to enable him to join parties in an action, who could not be joined at the common law. It could no more entitle a Demandant in a real action to recover against several tenants claiming by distinct and separate titles, than it could entitle a Plaintiff to maintain a joint action of assumpsit, where the contracts were several and independent. Infinite inconvenience and mischief would result from such a construction; and we should not incline to adopt it, unless it were unavoidable.

As to the third question. It is clear, at the common law, that non-tenure, joint-tenure, sole-tenure and several-tenure, were good pleas in abatement to a writ of right. But they could only be pleaded in abatement; for the tenant, by joining the mise, or pleading in bar, admitted himself tenant of the freehold. Such pleading in bar .was an admission that he had a capacity to defend the suit; and he was estopped, by his own act, from denying it. The act of Virginia of 1786, ch. 27, reforming the proceedings on writs of right, was not intended to vary the riglats or legal predicament of the parties. It did not, therefore, intend to change the nature and effect of the pleadings; and, notwithstanding that act, the tenant shall still have the full benefit of the ordinary pleas in abatement. It is true that the act provides that the tenant, at the trial, may, on the gener. al issue, give in evidence any matter which might have, been specially pleaded. But this provision is manifestly'confined to matters in bar. It would be abşurd to suppose that the legislature meant to give to a mere


GREEN exception in abatement the full effect of a perfect bar

on the merits ; which would be the case if such an exLITER ception would authorize a verdict for the tenant on is& others,

s, sue joined on the mere right. The time and manner

of filing the pleadings must, of course, be left to the established practice and rules in the Circuit Court.

As to the fourth point, we are of opinion that, under the act of Virginia of 1786, the tenant may, at his election, plead any special matter in bar, in a writ of right, or give it in evidence on the mise joined. The act is not deemed compulsive but cumulative.

The fifth question is that which has been deemed most important; and to this the counsel on each side have directed their efforts with great ability.

It is clear, by the whole amount of authority, that actual şeizin, or seizin in deed, is, at the common law, necessary to maintain a writ of right. Nor is this peculiar to actions on the mere right. It equally applies to writs of entry; and the language of the count, in both cases, is, that the Demandant, or bis ancestor, was, within the time of limitation, seized in his demesne as of fee, &c. taking the esplees, &c. It is highly probable that the foundation of this rule was laid in the earliest rudiments of titles at the common law. It is well known that, in ancient times, no deed or charter was necessary to convey a fee simple. The title, the full and perfect dominion, was conveyed by a mere livery of seizin in the presence of the vicinage. It was the notoriety of this ceremony, performed in the presence of his peers, that gave the tenant his feudal investiture of the inheritance, Deeds and charters of feoffment were of a later age ; and were held not to convey the estate itself, but only to evidence the nature of the conveyance. The solemn act of livery of seizin was absolutely necessary to produce a perfect title, or as Fleta calls it, juris et seisince conjunctio. But, whatever may be its origin, the rule as to the actual seizin has long since become an inflexible doctrine of the common law.

It bas been argued, that the act of Virginia, of 1786, ch. 27, meant in this respect to change the doctrine of the common law, because that act has given the form of

the count in a writ of right, and omits any allegation of GREEN seizin and taking esplees. There is certainly some countenance in the act for the argument. But, on ma LITER ture consideration, we are of opinion that it annot pre- &OTHERS. vail. The form of joining the mise in a writ of right, is also given in the same act; and that form includes the same inquiry, viz: “which hath the greater right," as the forms at common law. It would seem to follow that the legislature did not mean to change the nature of the facts which were to be inquired into, but only to provide a more summary mode of proceeding. clause in the same act allowing any special matter to be given in evidence on the mise joined, may also be called in aid of this construction. That clause certainly shews that it was not intended to relieve the Demandant from the effect of any existing bar; and want of seizin was, at the common law, a fatal bar. The statute of limitations of Virginia, of 19th December, 1792, ch. 77, which, as to this point, is a revival of the old statute, limits a writ of right upon ancestral seizin, to 50 years, and upon the Demandant's own seizin, to 30 years next before the teste of the writ. It is therefore incumbent on the Demandant to prove a seizin within the time of limitation; otherwise he is without remedy; and if so, it must be involved in the issue joined on the mere right. We are therefore of opinion, that the act of 1786 did not mean to change the nature of the inquiry as to the titles of the parties, but merely to remedy soine of the inconveniences in the modes of proceeding.

If, then, an actual seizin orseizin in dead, be necessary to be proved, it becomes material to enquire what constitutes such a seizin. It has been supposed, in argument, that an actual entry under title, and perception of esplees were necessary to be proved in order to shew an actual seizin. But this is far from being true, even at the common law. There are cases in which there is a constructive seizin in deed, which is sufficient for all the purposes of action in legal intendment. In Hargrave's note, 3 Co. Litt. 24, a, it is said, that an entry is not always necessary to give a seizin in deed ; for if the land be in' lease for years, curtesy may be without entry or even receipt of rent. The same is the doctrine as to seizin in a case of possessio fratris. So if a grantee or heir of several parcels of land in the same county enter into one par



cel in the name of the wholc, where there is no conflicting possession, the law adjudges him in the actual seiz

ins of the whole. Litt. s. 417. 418.-In like inanner, &OTHERs, if a man have a title of entry into lands, but dare not

enter for fear of bodily harm, and he approach as near the land as he dare, and claim the land as his own, be hath presently, by such claim, a possession and seizin in the lands, as well as if he had entered in deed. Liti. S. 419. And living within the view of the land will, under circumstances, give the feoffee a seizin in deed as effectually as an actual entry. There are, therefore, cases in which the law gives the party a constructive seizin in deed. They are founded upon this plain reason, that either the claim is made sufliciently notorious by an actual entry into part, of which the vicinage can take notice, or the party has done all that, under the circumstances of the case, he was bound to do. Lex non cogit seu ad vana aut impossibilia. The same is the result of conveyances deriving their effect under the statute of uses; for there, without actual entry or livery of seizin, the bargainee has a complete seizin in deed.

Com. Dig. uses, [B. 1.] [1.]-Cro. Eliz. 46.-1 Cruise Dig. 12.Shep. Touch. 223, &c. Harg. Co. Litt. 271, note. And the Kentucky act respecting conveyances, which is, in substance, like the statute of uses, gives to private deeds the same legal effect.

It has, however, been supposed, in argument, that not only an actual seizin or complete investiture of the land, but also a perception of the profits, or, as it is technically called, a taking of the esplees, is absolutely necessary to support a writ of right. It cannot, however, be admitted that the taking of the esplees is a traverseable averment in the count. It is but evidence of the seiz. in; and the seizin in deed once established, either by a pedis positio, or by construction of law, the taking of the esplees is a necessary inference of law. If, therefore, a seizin be established, although the lands be leased for a term of years, and thereby the profits belong to the tenant, still the legal intendment is that the esplees follow the scizin. And so it would be although a mere trespasser, without claiming title, should actually take the profits during the time of the seizin alleged and proyed. And, indeed, of certain real property, as a barren rock, a complete seizin may exist without the existence of esplecs.

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