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THE

LAW OF EJECTMENT.

CHAPTER I.

RIGHT OF ENTRY.

At common

law right
must be legal.

To entitle a plaintiff to bring an action for the recovery What is a of possession of land he must have a right of entry either right of entry legal or equitable. A right of entry means a right to enter and take actual possession of lands, tenements, or hereditaments, as incident to some estate or interest therein. Before the Judicature Acts this right of entry must have been, in any court of common law, a legal right; a mere equitable title would have been insufficient to support an action of ejectment (a). Since the Judicature Acts all Since Judicathe courts are bound to give to a plaintiff, or to a defendant, the same relief upon an equitable title as the Court of Chancery would formerly have given (b). Now, therefore, a plaintiff claiming possession under an equitable title will succeed upon proof of an equitable right to the actual possession (c). The person in whom the legal

(a) Doe v. Wroot, 5 East, 132;
Doe v.
Williams, 2 M. & W. 749;
Doe v. Passingham, 6 B. & C. 305;
Doe v. Webber, 3 B. N. C. 922;
Goodtitle v. Jones, 7 T. R. 43;
Doe v. Staple, 2 T. R. 684.

W.Y.E.

(b) 36 & 37 Vict. c. 66, s. 24, sub-ss. 1, 2, 4. See App. B, pp. 350-351.

(c) General Finance Co. V. Liberator, 10 Ch. D. 15, 24.

B

ture Acts, equitable right suffi

cient.

Mortgagor can sue for possession.

Legal title in courts of equity.

Effect of Judicature Acts.

Right of entry must be right to immediate possession.

estate is vested must, however, be made a party to the proceedings (d).

A mortgagor also who is entitled to possession, or to the receipt of the rents and profits, may sue for such possession or rents if no notice of his intention to take possession has been given by the mortgagee (e).

Conversely, before the Judicature Acts, courts of equity would not usually grant relief to a plaintiff who had a legal title, though there were some exceptions to that rule (f); since those acts, courts of equity give the same effect to, and the same relief upon, legal titles as the courts of law (g).

The effect of the Judicature Acts is that a tenant who has entered under an agreement for a lease, which is not valid as a lease, if he is entitled to specific performance, is in the same position as if a lease had been executed, and every branch of the high court will enforce his rights, as if a lease had actually been granted (h). In the county court, however, the tenant cannot assert that right if the value of the premises exceeds the equitable jurisdiction of county courts (i). If, however, the tenant is not entitled to specific performance, he is, under such circumstances, no more than a tenant at will or yearly tenant upon such terms of the agreement as are not inconsistent with a yearly tenancy (h).

The right of entry must be a right to the immediate

(d) Allen v. Woods, 68 L. T.
143.

(e) 36 & 37 Vict. c. 66, s. 25,
sub-s. 5. See App. B, p. 352.
(f) Howard v. Shrewsbury, 17
qE. 378.

(g) 36 & 37 Vict. c. 66, s. 24,
sub-ss. 6, 7. See App. B, p.

(h) Walsh v. Lonsdale, 21 Ch. D. 9; Swain v. Ayres, 21 Q. B. D. 289; Coatsworth v. Johnson, 55 L. J. Q. B. 220; Lowther v. Heaver, 41 Ch. D. 248. See

P. 50.

(i) Foster v. Reeves, [1892] 2 Q. B. 255.

possession of the property. A reversionary or other future estate is not sufficient until it has become an estate in possession by the forfeiture, defeasance, or expiration of the prior estate. If, therefore, it is shown that there is a tenancy existing in any other person which is good against the plaintiff he cannot recover possession (k). So also if there is an outstanding term which has not been surrendered (1).

terms.

With regard to outstanding terms, before the statute Outstanding 8 & 9 Vict. c. 112, a jury was sometimes directed to presume the surrender of a satisfied term. The mere fact that a term was satisfied, or the mere lapse of time, was not sufficient ground for such presumption, and a jury would be directed to make such a presumption only when the estate had been dealt with in a way in which reasonable men would not have dealt with it unless the term had been surrendered (m); or when the presumption was to be made in favour of a beneficial owner who had a title good in substance and only wanting this collateral matter to make it good in form (m).

terms.

The Satisfied Terms Act (n) provides that every satis- Satisfied fied term, which was on the 31st of December, 1845, either by express declaration or by construction of law, attendant on the inheritance of any land, shall on that day cease as to such land; but that every term so attendant by express declaration shall continue to afford to everyone

(k) Doe v. Wharton, 8 T. R. 2; Doe v. Alford, 1 D. & L. 470; Doe v. Horn, 3 M. & W. 333.

(1) See cases in next note. (m) Doe v. Staple, 2 T. R. 684; Doe v. Wrighte, 2 B. & Ald. 710; Doe v. Hilder, 2 B. & Ald. 782; Doe v. Plowman, 2 B. & Ad. 573; Doe v. Cooke, 6 Bing. 174, 179; Doe v. Langdon, 12 Q. B. 711;

Garrard v. Tuck, 8 C. B. 231;
Cottrell v. Hughes, 15 C. B. 532;
Evans v. Bicknell, 6 Ves. 173,
185; Doe v. Williams, 2 M. &
W. 749; Doe v. Scott, 11 East,
478; Doe v. Reed, 5 B. & Ald.
232; Day v. Williams, 2 C. & J.

460.

(n) 8 & 9 Vict. c. 112.

When a term is satisfied.

the same protection against charges, actions, and claims as if it had continued to subsist, but had not been assigned or dealt with after that date, and shall, for the purpose of giving such protection, be considered in every court of law or equity to be a subsisting term (o). Since that Act, only satisfied terms which were at its date, by express declaration, attendant upon the inheritance, can be set up to defeat a claim to the possession of the land, and then only when a jury would not be directed to presume its surrender (p), or a court of equity would not have restrained a party from setting it up (q).

By the same Act it is provided that terms then subsisting, or thereafter created, becoming satisfied since the 31st of December, 1845, and attendant either by express declaration or by construction of law, shall, immediately upon becoming so attendant, absolutely cease (r). In order that a term should cease under this section it must have become attendant upon the inheritance (8), and must be satisfied (t).

A term does not become satisfied unless the beneficial interest in the whole charge secured by the term, and the beneficial interest in the whole term, are united and merged in one person (u). A term attendant upon the inheritance can be dealt with only by those entitled to the inheritance, and an assignment thereof by a tenant for life is inoperative (x).

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CHAPTER II.

THE SEVERAL REMEDIES FOR THE RECOVERY OF

POSSESSION OF LAND.

THE usual remedies for the recovery of the possession of any lands, tenements or corporeal hereditaments situate in England, Wales or Berwick-upon-Tweed are:

I. Entry. Post, chap. 3, p. 9.

II. An action in the High Court. Post, chap. 22, p. 253.

III. An action in the County Court, where the County Court has jurisdiction. Post, chap. 23, p. 263. IV. Summary proceedings before justices by a land

lord against his tenant to recover possession of small tenements, after the expiration or determination of the tenancy under 1 & 2 Vict. c. 74, s. 1; post, chap. 24, p. 281.

V. Summary proceedings before justices by a landlord against his tenant to recover possession of deserted premises, under 11 Geo. 2, c. 19, as amended by 57 Geo. 3, c. 52; post, chap. 24, p. 283.

VI. Summary proceedings before justices to recover pos

session of:

(a) schoolhouses from the masters thereof, under 3 & 4 Vict. c. 77, s. 19, and 4 & 5 Vict. c. 38, ss. 17, 18; post, chap. 24, p. 285;

(b) of allotments, under 8 & 9 Vict. c. 118, s. 111; post, chap. 24, p. 285;

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