V. When an actual entry must be made before ejectment.... 853 XI. XII. IX. Affidavit of service.... X. Judgment by default Appearance of the defendant and proceedings thereupon XIII. Proceedings under 1 G. IV. c. 87, where the tenant holds 899 902 .... 905 .... .... 911 nature of THE action of ejectment is a fictitious mode of legal proceeding, The hisby which almost all titles to lands and tenements may be tried, tory and and possession obtained by the party entitled to it. It is termed ejectment. a mixed action, being real in respect of the lands, but personal in respect of the damages and costs. It is also deemed a possessory action, because it is founded on the right to the possession of the premises in dispute a. In the earlier period of our history, the only mode of recovering the possession of lands wrongfully withheld was by a real action or writ of assize, which were applicable only to freehold titles, estates for years being then considered only a precarious possession, and as not transferring to the lessee any title to the land; the only remedy which a lessee had, in case he was wrongfully ousted by the lessor, was by a writ of covenant on the breach of contract, whereby he was enabled to recover his term as well as damages, if ousted by the lessor; but if dispossessed by any person claiming under the lessor, he could recover damages only from the lessor for a breach of the covenant, but not the possession of the land from which he was ousted a. As a writ of covenant lay only between the immediate parties to the grant, if the lessee was ejected by a stranger, his remedy was by a writ of ejectione firma, which was a mere personal action of trespass, whereby he was enabled to recover damages only, the true measure of which was the mesne profits, but not the term, though in such a case the landlord himself might recover the possession by a real action b. In progress of time, however, when the agricultural interest became a subject of legislative regard, a full remedy was provided for the lessee, by the introduction of the writ of quare ejecit infra terminum, whereby the lessee was enabled to recover both his term and damages from any person whatsoever that ousted him. It is upon this writ that the modern action of ejectment is founded. The precise period when this remedy was adopted is not satisfactorily ascertained, but all the authorities agree that it was between the year 1455, in the reign of Hen. VI., and 1499, in the reign of Hen. VII. "The action of ejectment," said Lord Mansfield, C. J., "is the creature of Westminster Hall, introduced within time of memory, and moulded gradually into a course of practice by the rules of the courts. As originally a term for years only could be recovered in an action of ejectment, in order to convert it into a method of trying freehold titles, it was necessary that a term should be created. To obtain that requisite, the party claiming a right to the possession entered upon the premises in dispute, and a 3 Bl. Com. 200. Adams on 360. See 3 Burr. 1296. Ejectment, 3. Id. Runnington, 13. Adams, 7. Runnington, 13. Fairclaim d. Fowler v. Gower, 1 Bl. d Runnington, 14. Adams, 9. 3 Bl.Com. 207. * In Fairclaim d. Fowler v. Shamtitle, 3 Burr. 1292. there sealed a lease for years, which he delivered to another person, who accompanied him. An actual entry was necessary, for, according to the old law, it would be maintenance if a person not in possession conveyed a title to another. The lessee having acquired a right to the possession by means of the lease, remained upon the land, and then the person who came next upon the freehold animo possidendi, or by accident, or by agreement beforehand, was accounted an ejector of the lessee, and a trespasser on his possession. An action of ejectment was then commenced against the person in possession or the party so entering, who was denominated the casual ejector. But as the person in possession might thus be deprived of his lands without having any opportunity of defending his title, when the action was instituted against any other person than himself, it was made a standing rule of court, that the plaintiff should not proceed against the casual ejector, without serving the party in possession with notice of the proceedings or a copy of the declaration. The party in possession, having received such notice, might, upon application to the court, defend the suit in the name of the casual ejector, if he thought proper, and if he neglected to do so, the suit proceeded against the casual ejector. When the cause came on to be tried, the plaintiff was obliged to prove the lessor's title, since his own depended upon it. He was also obliged to prove the lease, his own entry on the premises, and his ouster by the defendant. The claimant's title was thus indirectly determined. In form an ejectment has been not inaptly described, "an ingenious fiction for the trial of title to the possession of lands; it appears as a trick between two to dispossess a third by a sham suit and judgment, an artifice which would be highly criminal, unless the court converted it into a fair trial with the proper party." a The proceedings in ejectment continued to be conducted in the manner above described until the time of Lord Chief Justice Rolle, who presided in the court of upper bench, so called during the protectorate, by whom a new method was invented Per Lord Mansfield, C. J., in Burr. 1294. Fairclaim d. Fouler r. Shamtitle, 3 VOL. II. of trying titles by ejectment, without resorting to the troublesome, and sometimes inconvenient formalities which attended the actual making of the lease, cntry, and ouster a. By the new method the suit is conducted in fictitious names, and all the preliminaries required by the ancient practice are feigned, for no lease is sealed, no entry or ouster is actually made; the process consists entirely of a string of legal fictions. The following is a brief outline of the present system. A., the party claiming title, delivers to B., the party in possession, a declaration, in which C. is plaintiff and D. defendant, both fictitious persons, and in which it is stated that a lease for a term of years of the premises in question had been made by the party claiming the title to C., who entered by virtue of the demise, and was afterwards, and during the term, ousted by D., the defendant, who is termed the casual ejector. To this declaration a notice is annexed in the name of D., directed to B., the party in possession, informing him of the action being brought by C., and advising him to apply to the court for permission to defend his title; otherwise that he (D.), having no title, will suffer judgment to go by default against him, whereby B. will be turned out of his possession. If, upon the receipt of the declaration, B. does not apply to the court within a limited time for permission to be made defendant, he is supposed to have no title to the premises; and upon an affidavit that regular notice has been served upon him, the court will order judgment to be entered up against D., the casual ejector, and possession of the lands will be given to A., the claimant, by the sheriff. If, however, B. applies, pursuant to the notice, for permission to defend the action, the court will allow him, upon condition that he enter into a rule of court, which is called the consent rule, by which he undertakes to confess at the trial the lease, entry, and ouster, which we have seen are merely feigned in the proceedings, to have been regularly made, and to rely solely on the merits of his title; and, lest at the trial he should break his engagement, another condition is also added, that in such case he shall pay the costs of the suit, and shall allow judgment to be entered against D., the casual ejector. This rule having been entered into, the declaration is altered by making B. the defendant instead of D., and the case proceeds to trial in the same manner as other actions. If A., the party claiming, makes out his title, judgment is given for C., the nominal plaintiff, and a writ is directed in his name to the sheriff to deliver possession; but if B. does not appear at the trial and confess lease, entry, and ouster, pursuant to his undertaking, C. must be nonsuited for want of proving these requisites; but judgment will in the end be entered for him against D., the casual ejector, for the condition upon which B. was permitted to defend being broken, C., the plaintiff, is put in the same situation as if there had been no appearance. But though judgment is entered up against D., the casual ejector, execution will be stayed if, after default made by the tenant, the landlord applies to be made defendant, and enters into the usual rule a. SECTION II. FOR WHAT THINGS AN EJECTMENT WILL LIE. Ax ejectment will lie for all kinds of corporeal hereditaments, or for anything whereon an entry can be made, and of which the sheriff can deliver possession. But it is not in general sustainable for the recovery of property, which in legal consideration is not tangible, as for an advowson, rent, common in gross, or other incorporeal hereditament; it is however for tithes, though an incorporeal hereditament b. It is said, generally, that the description of the premises in dispute must be sufficiently certain, but no determinate rule is laid down as to the degree of certainty required. Formerly it was considered an 11 G. II. c. 19. 3 Burr. 1296. b By 32 Hen. VIII. c. 7. 3 Bl. Com. 206. 2 Saund. 304. n. 12 B. N. P. 99. Runnington, 131, et For what things and by what de scription ejectment will lie. Does not lie for property not tangible. |