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the holder of a freehold estate was able to

See. 106



ACTION OF EJEOTMENT

231


met with in the cases on property. Thus, a glance at the Chart will reveal that after the Fiction in Ejectment had been invoked, the lineup of the parties stood as follows: A, cx dent. L V. Z. Obviously, under this setup, the lessor of the nominal plaintiff, A, is L, the landlord, who, in reality, is the true plaintiff.
In the third place, from the Chart the stu­dent may understand the basis of the Com­mon Law rule that a Judgment in one Action of Ejectment was never a Bar to recovery in another Action. In the case of Caperton v. Schmidt,” the rule has been explained by Sawyer, 3., who declared: “But we have seen, that the nile in all cases requires that the matter tried must be directly, and not merely collaterally in issue, in order that the judgment shall be a Bar. And in an Action of Ejeetment at Common Law the title is not directly in issue; hence the Judgment under the rule was not a bar, nor could the determination of the title be used as a mat­ter of estoppel.”
The Classification of Ejectment

THE Action of Ejectment has been vari­ously classified. While it was developed as and became a substitute for the Ancient Real Actions, it has never assumed the character of a Real Action. It has sometimes been classified as a Mixed Action, but it does not possess the characteristics of the Common-

Law Mixed Action, except the single circum­stance that it made it possible for the plain­tiff to regain possession of his land. This characteristic, as Professor Keigwin aptly observes was “an adventitious and almost accidental incident of the action, tacked on long after the invention of Ejectment and re­sulting from extrinsic causes and an orig­inally unforeseen development.” 14 It is no
13. 26 Calif. 479, 499—501 (1864).
~ Keigwin, Cases In Common Law Pleading, Bk. I, The Forms of Action, II, The Common Law Actions, Ejectment, 123 note 1 (2nd ed. Rochester, 1934).

surprise, therefore, that most modem au­thorities declare that Ejectment is still a Per­sonal Action.’5


Ejeetment Asserts Right of Possession ol’ LaS

SINCE the abolition of the Ancient Real Actions, Ejectment has become the chief means of trying Title to lands or tenements and recovering possession thereof. It is the name now applied to the action by which the plaintiff asserts his right to possession of land, resulting either from absolute owner­ship or some lesser proprietary right, where­by he is entitled to enter into immediate pos­session of some interest in land. The action



is, therefore, limited by definition to the re­covery of corporeal real property; 16 but not things which are not tangible real proper­ty.’1 Ejectment may be brought to recover

lands or things attached to the land so as to partake of the nature of realty, such as tim­ber, growing crops and the like. Personal property and in general incorporeal heredit­aments may not be recovered, as the action is limited to property the possession of which may be delivered by the sheriff.18


For What Property Will Ejectment Lie to Recover?

IN consequence, Ejectment will only lie for the recovery of possession of real proper­ty, as for lands, or buildings annexed to land,


15. Ibid.
is. On the nature and limits of Ejectment, see 3

Blackstone, Commentaries on the Laws of England,

C. XI, Of Dispossession, or Ouster, 199 (7th ed. Ox­ford, 1775); Den en dem. Johnson v. Morris, 7 N. J.L.

6 (1822); French y. Robb, 67 N.J.L. 260, 51 A. 509,

57 L.R.A. 956 (1902).
17. Pennsylvania: Black’s Lessee v. Hepbnrne, 2 Yentes (Pa.) 331 (1798); Vermont: Judd i’. Leonard, I D.Chip. 204 (1814).
18. Connecticut: Nichols v. Lewis, 15 Cons. 137

(1842); florida: Walters v. Sheffield, 75 Fla. 505,

78 so. 539 (1918); New York: Jackson v. Buel, 9

Johns. (N.Y.) 298 (1812); Butler v. Frontier Tele­phone Co., ISO N.Y. 486, 79 N.E. 716, 11 LEA. (N.

5.) 920 (1006).



OFFENSIVE PLEADINGS Ch. 10

upon which an entry in point of fact might be made, and of which the sheriff could deliver actual possession.’° It will not lie, as we have observed, to recover property which, in legal contemplation, is not tangible, as rent, or other incorporeal hereditaments, or a wa­ter course, where the land over which the water runs is not the property of the claim-


19. English: Doe en dem. Butcher v. Musgrave, 1

Man. & 0. 635, 639, 133 Eng.Bep. 483, 488 (1840);

Connecticut: Nichols v, Lewis, 15 0mm. 137 (1842);

New Jersey: Whiter, White, 16 N.J.L. 202, 31 Am.

Dec. 232 (1837); New York: Jackson ex 4cm. Sax-

ton v. May, 16 Johns. (N.Y.) 184 (1819); Butler v.

Frontier Telephone Co., 156 N.Y. 486, 79 N.E. 716,

11 L.B.A. (N.S.) 920 (1900); Pennsylvania: Black’s

Lessee v. Ilepburne, 2 Yeates (Pa.) 331 (1798).
Whenever a right of entry exists, and the interdst is tangible, so that Possession can be delivered, Eject­inent will lie. Thus, where a grantor in a Deed re­served to himself, his heirs and assigns forever, the Right and Privilege of erecting a milldam at a Cer­tain place, and to occupy and possess the said prem­ises without any hindrance or molestation from the grantee or his heirs, it was held that the right re­served was such an interest in the land as would support an Action of Ejcctment. Jackson v. Bud,

0 Johns. (N.Y.) 298 (1812).

The owner of the soil may maintain Ejeetment against one who appropriates a part of a highway to his



own use. Wright r. Carter, 27 NiL, 77 (1858).

The riparian owner may maintain Ejeetment for land below the high water mark. Nichols v. Lewis, 15 Conn. 137 (1842).


The action lies for a room or chamber without land. Otis v. Smith, 9 Pick. (Mass.) 297 (1830).
Where a boiler, engine and stack are erected upon the land of a person at the joint expense of himself and another, under an agreement to use the same as a common source of power, without limitation as to time, the interest thus created is in the nature of real estate, for which Ejectnicnt will lie in the case of tin ouster. Hill v. Hill, 43 Pa. 521 (1862).
And one entitled to the right of mining on land, may maintain Ejectment. New Jersey: Condict v. Eric It. Co., SO N.J.Eq. 519, 85 MI, 612 (1912); Pennsyl­vania: Turner v. Reynolds, 23 Pa. 199 (1854); Fed­eral: Priddy v. Thompson, 204 Fed. 955, 123 C.C.A. 277 (1913).
lijeetment lies whenever the right of entry exists and the interest is of such a character that it can be held and enjoyed and possession thereof delivered in execution of judgment for its recovery. Walters c. Sheffield, 75 Fla. 505, 78 So. 580 (1918).

ant.2’ It will, however, lie for land covered by water, as such land may be owned, but

not for tile water.2



Title Requisite to Support Ilijeetment

IN order to maintain Ejectment, the plain­tiff must allege and prove a Legal Title in himself which gives him the right to imme­diate possession. Thus, any person having the right of entry upon land, whether his title be in fee simple, or merely for life, or for a term of years, may maintain the ac­tion.22 The plaintiff must have not only such


20. 1 Chitty, Treatise on Pleading and Parties to Ac­tions with Precedents and Forms, e. II, Of the

Forms of Action, 210 (16th Am. ed. by Perkins,

Springfield 1876); 3 Blaekstone, Commentaries on

the Laws of England, e. XX, Of Dispossession, or

Ouster of Chattels Real, 206 (7th ed., Oxford 1775);

Michigan: City of Grand Rapids v. Whittlesey, 33

Mich. 109 (1875); Bay County v. Bradley, 39 Mich.

163, 33 Am.Rep. 307 (1878); Taylor v. Gladwin, 40

Mich. 232 (1879); Pennsylvania: Black’s Lessee v.

Hcpburne, 2 Yeates (Pa.) 331 (1708).


Payment of a ground rent reserved upon a conveyance in fee cannot be enforeed by Ejectruent. Kenege v. Elliot, 9 Watts. (Pa.) 258 (1540~.

Though lands, for some purposes, have been Impressed with the character of personalty, In accordance with the provisions of a will, Ejeetment nevertheless lies to recover them. Shaw v. Chambers, 45 Mich. 355, 12 NW. 486 (1882).


21. New York: People v. Mauran, 5 Denio (N.Y.) 389 (1848); Federal: Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.EE1. 428 (1891); citing many ancient authorities.
22. 1 Chitty, Treatise on Pleading and Practice in Ac­tions with Precedents and Forms, e. 11, Of the Forms of Action, 211 (16th Am. ed. by Perkins, Springfield 1876).

A tenant in common may maintain Ejectment against a third person for his share of the land. Connecti­cut: Robinson v. Roberts, 31 Conn. 145 (1862); Ken­tucky: Chambers v. Handley’s Heirs, 3 J.J.Marsb (Ky4 08 (1829); North Carolina: Den cx dem. Car­son’s Heirs v. Smart, 34 NC. 369 (1851).

Or tenants In common may sue jointly. California:

Touchard v. Keyes, 21 Cal. 202 (1862); Kentucky:

Innis v. Crawford, 4 Bibb (Ky.) 241 (1851); Federal:

fliels v. Rogers, 4 Craneh (U.S.) 165, 2 L.Ed. 583 (1807). And one tenant In common may maintain an action against the other if he can show an ous­tot..

232

233


Sec. 106

ACTION OF EJECTMENT

an estate as entitles him to possession,23 but the right must also be of some duration, and exclusive.24


The plaintiff, in all Cases, must recover on the strength of his own Title.25 He cannot found his claim upon the insufficiency of the defendant’s title, for the possession gives the defendant a right against every one who can­not show a better Title, and the party who would change the possession must, therefore, show a prior possession, or trace his Title back to some one who can be shown to have had possession, or else to some acknowledged source of Title, such as a grant from the gov­ernment.2°
23. Illinois: Batterton V. Yonlcum, 17 Ill. 288 (1855);

Pennsylvania: Beffuer v. Beta, 82 Pa. 376 (1850).

Suits for land in Ejeetment are possessory in their nature, whether baned on prier possession or title. Butler r. Borroum, 218 SW. 1115 (Tex.Civ.App. 1019).
On the right of a lessee to maintain Ejeetnient before

entry Into possession, see Note, Lessees-—Right to

Possessory Action Before Entry, 2 Minn,L.Rev. 367,

370 (1918); 2 Pollock and Maitland, History of Eng­lish Law, Bk. II, c. IV, Ownership and Possession,

§ 4, 100 (Cambridge 1895).
24. English: Rex v. Inhabitants of Mellor, 2 East 190,

102 Eng.Rep. 341 (1802); Goodtitle ox dem. Miller



V. WIlson, 11 East 834, 345, 103 Eng.Rep. 1033, 1037

(1809).


The right reserved t0 a grantor of land to erect a milidam and occupy the land for that purpose, will support Ejeetment. Jackson v. Bud, 9 Johns. (N.Y.) 298 (1812).
The Action 0f Ejeetment involves both the right of possession and the right of property. Chance v. Carter, 81 Or. 229, 158 Pac. 947 (1916).
25. English: Goodtitle v. Baldwin, 11 East 488, 103 Eng.Rep. 1092 (1809); Illinois: Wnlton v. Folians. bee, 131 Ill. 147, 23 N.E. 332 (1890); Maryland: Doe cx den. Campbell v. Fletcher, 37 Md. 430 (1873);

Virginia: Brunswick Land Corp. v. Perkiuson, 146 Va. 695, 132 sE. 553(11126).


26. English: Goodtit]e v. Baldwin, 11 East 488, 103

Eng.Rep. 1093 (1809); Illinois: Doe cx dem.- Moore

v. Hill, Breese (111.) 304 (1820); Joy v. Berdell, 25

Ill. 537 (1861); Stuart v. Dutton, 39 III, 91 (1866);

Walton v. Follansbee, 131 111. 147, 23 N.E. 832

(1890); IndIana: Stebman v. Crull, 26 Intl 436

(1861); Maine: Webster v. Hill, 38 Me. 78 (1854);

Douglass v. Libbey, 59 Me. 200 (1871); Maryland:

Hall V. Gittings’ Lessee, 2 Har. & 3. (Md.) 112 (1807);

The defendant may hold the land without any Title thereto, as his mere possession gives him a right to resist Ejectment until some one asserts and shows a better right to the property. Thus, by the weight of au­thority, prior possession, without any fur­ther Title, is sufficient as against a mere in­truder; so that if a stranger, who has no Color of Title, should evict a person who has been in quiet possession, but who has no strict Legal Title, the latter may maintain Eject­merit against him.17

Doe cx ilem. Campbell v. Fletcher, 37 Md. 430 (1873); New Jersey: Boylan v. Meeker, 28 NiL. 274 (1860); New York: Schauber v. Jackson, 2 Wend. (N.Y.) 13 (1828); Adair v. Lott, 3 Hill (N.Y.) 182 (1842); Rose-boom v. Mosher, 2 Denio (N.Y.) 61 (1846); Pennsyl­vania: Creigh v. Shatto, 9 Watts & S. (Pa.) 82 (18451; Welker’s Lessee v. Coulter, Add. (Pa.) 390 (1709); Johnston v. Jackson, 70 I’a. 16-1 (1871): Ten­nessee: Huddleston V. Garrott, 3 Jiumph. (Penn.) 629 (1842).
If the defendant shows a paramount outstanding title in some third person, the action must fail. ilh­nois: Itupert v. N ark, 15 111. 540 (1854); Masterson

v. Check, 23 III. 72 (1859); Holbrook v. Brenner, 31 Ill. 501 (1863); Enhance v. Flood, 52 III. 40 (1869); Casey v. Kiminel, 181 1.11. 154, 54 N.E. 005 (1899); Burns v. Curran, 275 Ill. 448, 114 N.E. 160 (1910); New York: Jackson v. Givin, 8 Johns. (N.Y.) 137, 5 Am.Dec. 328 (1811); PennsylvanIa: Hunter v. Coch­ran, 3 Pa. 105 (1846); Tennessee: Peek v. Carmi­chael, 9 Yerg. (Penn.) 325 (1836) ; 3iassengill V. Boyles, 11 Humph. (Penn.) 112 (1850): Virginia; Atkins v. Lewis, 14 Graft. (Va.) 30 (1851).


2~. English: Doe ox them. harding v. Cooke, 7 Bing.
846, 131 Eng.Rep. 134 (1831); Doe V. Dyehall, M. & M. 346, 173 Eng.Rep. 1184 (1829); Alabama: Russell v. Jrwirfs Adm’r, 38 Ala. 44 (1861); Zllinois Wim­bony v. Hurst, 33 III. 106, 83 Am.Dec. 295 (1862); New Jersey: Lepurt v. Todd, 32 NiL. 124 (1866); New York: Jackson ex dcm. Murray v. Hazen, 2 Johns. (Nt) 22 (1806); Jackson en dem. Duncan v. Harder, 4 Johns. (N.Y.) 202, 4 Am.Dee. 262 (1800); Smith v. Lorillard, 10 Johns. (N.Y.) 338 (1813); Whitney v. Wright, 15 Wend. (N.Y.) 1fl (1836);

Pennsylvania: Woods V. Lane, 2 Serg. & II. (Pa.) 53 (1815); Hocy v. Furman, 1 Pa. 295, 44 Am.Dee. 129 (1845); Shumway v. PhillIps, 22 Pa. 151 (1853);

Vermont: Reed v. Shepley, 6 Vt. 602 (1834); Wis­consin: Bates v. Campbell, 25 Win. 613 (1870). But see, Taylor v. flussell, 65 W.Va. 632, 64 S.E. 923 (1900); Marshall v. Stalnaker, 70 W.Va. 394, 74 SE. 48 (1912).

The plaintiff need not, however, prove a Perfect Title in himself; he need only show a Title which, as against the defendant, is a better Title. When, therefore, it is possi­ble for the plaintiff to show that he was in possession and that the defendant ejected him by a mere trespass, the prior possession of the plaintiff is superior to that of the de­fendant; and upon a showing to that effect, he may recover upon his better but Imper­fect Title.28

As Ejeetment was strictly a legal action, at Common Law, it required a Legal Title to

maintain or to defeat it. The plaintiff must, therefore, have a legal right to possession. The Legal Title, so far as it relates to the right of possession, must prevail in Eject­ment. Hence, one who has such a Title will win as against one who has a mere beneficial or equitable interest, enforceable in the Courts of Equity. Such an interest, unac­companied by the Legal Title, will not suffice to support or defeat the action.29


28. Alabama: Dodge v. Irvington Co., 158 Ala. 01, 48

So. 383 (1908); Illinois: Burns v. Curran, 275 111.

448, 114 N.E. 166 (1916); New Jersey: Deport v.

Todd, 32 N.J.L. 124 (1866); Pennsylvania: Woods v.



Lane, 2 S. & U. (Pa.) 53 (1815); Virginia: Tapp­~eott v. Gibbs, 11 Gratt. (Va.) 172 (1854); Federal:

Bradshaw V. Ashley, ISO U.S. 59, 21 SOt. 21)7, 45 L.

Ed. 423 (1900); Steffan -cc Zeust, 10 App.D.C. 260

(1897).
SB. English: Doe ex dem. Da Costa v. Wharton, 8 T.



R. 2.101 Eng.Eep. 1233 (1798); Illinois: Rountree v.

Little, 54111. 323 (1870); Chiles v. Davis, 58111.411 (1871); ivIeFahl v. Kirkpatrick, 236 III. 281, 86 N.E. 139 (1908); Maryland: Leonard v. Diamond, 31 Md.



536 (1809); Michigan: Bueli v. Irwin, 24 Mich. 145 (1871); Ryder v. Flanders, 30 Mich. 336 (1874); ‘Gelges v. Greiner, 68 Mich. 153, 36 N.W. 48 (1888):

Mississippi: Cunningham v. Dean, 83 Miss. 46 (1857); MIssouri: Thompson v. Lyon, 33 Mo. 219 (1382); New Jersey: Muhford v. TunIs, 35 N.J.L. 256 (1871); Ohio: Eggleston’s Lessee v. Bradford, 10 Ohio 312 (1859); Pennsylvania: Thompson v. Adams, 55 Pa, 479 (1867); Virginia: Hopkins ‘cc ‘Ward, 6 Mtmf. (Va.) 38 (1817); West Virginia: Tay­br’ v. Russell, 65 W.Va. 632, 64 S.E. 923 (1909); Wis­consta: Glllett v. Treganza, 13 Win. 472 (1801);

Vermont: Cheney v. Chancy, 26 Vt. 606 (1854);

Ch. 10


The plaintiff must, of course, have the right of possession at the time the action is
Federal: Smith v. McCann, 24 flow. (U.S.) 398, 16 LEd. 714 (1861).

If the defendant has the legal title, though he ac­quirech $t by fraud, and though the plaintiff may be equitably entitled to the land, the action cannot be maintained. The plaintiff must seek his remedy in a court of Equity. Rountree v. Little, 54 III. 323 (1870); Dyer v. Day, 61 III. 336 (1871); Union Brewing Co. v. Meier, 103 III. 427, 45 N.E. 264 (1896).


A party cannot recover in Ejeetmont on the basis of an estoppel in pals (as an estoppel of the defendant to set up a title against a title acquired by the plaintiff in reliance upon the defendant’s repre­sentations). Hayes v. Livingston, 84 Mich. 384, 22 Am.Rep. 533 (1876).

Nor can the defendant set up an equitable estoppel against the plaintiff’s legal title. Illinois: Nichols v, Caldwehl, 275 111. 520, 114 N.E. 278 (1916); Mich­igan: Ryder v. Flanders, 30 Mich. 836 (1874).

Nor can the defendant interpose the merely equitable defense that the plaintiff’s title was fraudulently obtained. flannel v. Kinney, 44 Mich. 457, 7 NW. 63 (1880).
Nor that the grantor was incompetent: Walton v. Mal­colm, 264 Dl, 389, 106 N.E. 211, Ann.Cas.1915fl, 1021

(1915). cr. Smith v. Ryan, 191 N.Y. 452, 84 N.E.

402, 123 Arn.St.Rep. 609, 19 L.R,A. (N.S.) 461, 14

Ann.Cas. 505 (1008).


The legal title can be set up by a trustee in an action by the cestul qua trast (beneficiary of a trust). Eng’ 11th: Doe en den,. Shewen v. Wroot, 5 East 138, 102 Eng.Rcp. 1021 (1804); New York: Jackson en 0cm. Simmons v. Chase, 2 Johns. (N.Y.) 84 (1828); Jack­son v. Sisson, 2 Johns.Cas. (N.Y.) 321 (1829); Penn­sylvania: l3rolaskey V. Meclain, Oil Pa. 146 (1860). But a trustee may maintain Ejectment against his cestui qua trust. Illinois: Kirkpatrick v. Clark, 132 Ill. 342, 24 N.E. 71, 22 Am.St.Eep. 531, 8 LiLA..

511 (1890); Vermont: Beach v. Beach, 14 Vt. 28, 39 Am.Dee. 204 (1842).



4But, where trustees ought to convey to the beneficial owner, It will, after a lapse of many years, and un­der certain circumstances, be left to the jury to pre­sume that they have convoyed accordingly; so where the beneficinl occupation of an estate by the possessor under an equitable title induces a fair presumption that there has been a conveyance of the legal estate to such possessor. But, when the facts of the case preclude such presumption, the party having only the equitable interest cannot pie-vail in a Court of Law.” 1 Chilly, Treatise on Pleading and Parties in Actions with Precedents and Fonas, c. II, Of the Forms of ActIon, 212 (16th Am. ad. by reriang, sprIngfield 1876); English:

England en 4cm. Syburn v. Sls,lc’ A ‘r t)

234 OFFENSIVE PLEADINGS

235


commenced.3° And a remainderman or re­versioner cannot bring the action while the right of possession is in another.3
Against Whom Will the Action Lie?

EJECTMENT will only lie for what, in fact, or in legal consideration, amounted to a dispossession or ouster of the plaintiff’s lessor, that is, the landlord of the plaintiff, the Fictitious Lessee, or of the plaintiff; 32


Eng.Bep. 1243 (1792); Illinois: Wales v. Bogur, 31 Ill. 464 (1868); New York: Sinclair v. Jackson en dem. Field, 8 Cow. (NY.) 543 (1820).
But in no case can presumptions drawn from the fact of the defendant’s continued possession, short of the period necessary to give him title, overthrow the plaintiff’s right of recovery based on his undisputed legai title. Christopher v. Detroit, L. & N. U. Ce., 56 Mieh. 175, 22 N.W.311 (1885).
If a cc-stui qua trust is legally entitled to the posses­sion as against the trustee, he may maintain Eject­mont. Kennedy v. Fury, 1 DalI. (Pa.) 72, 1 LEd. 42 (1783); Presbyterian Congregation v. Johnston, 1 Watts & S. (Pa.) 9 (1841); Calthvell v. Lowden, 3 Brewst. (Pa.) 63 (1868).
30. English: Doe ex den. Whatley v. Telling, 2 East

257, 102 Eng.Rep. 367 (1802); Right en dem. Lewis v. Beard, 13 East 210, 104 Eng.Rep. 350 (1811);

Alabama: Carpenter v. Joiner, 151 Ala. 454, 44 So. 424 (1807); Illinois: ‘Wood v. Morton, 11 Ill, 547 (1850); Pitkin v. Yaw, 13 Ill. 251 (1851); Kentucky:

Whitley v. Bramble, 9 B.Mon. (iCy.) 143 (1848); Maryland: Wilson’s Lessee v. Inloes, 11 Gill. & J. (Md,) 351 (1840); Michigan: Van Vleet v. Black-wood, 89 Mich. 728 (1878); Mississippi: Laurissini V. Doe en dent Corquette, 25 Miss. 177, 57 Am.Dec. 200 (1852); New York: Jackson cx dem. Hardenbergh v. D. L. Sehoonmaker, 4 Johns. (N.Y.) 300 (1800);

Federal: Smith v. McCann, 24 flow. (S.C.) 898, 16 LEd. 714 (1860),
31. On the e~eet of Modern Codes, Practice Acts and Rules of Court on an equitable title as a factor in the Action of Ejeetment, see Section 118 of this Chapter.
32. 3 Blaekstone, Commentaries on the Laws of Eng­land, e. XI, Of Dispossession, or Ouster of Chattels Real, 199 (7th Ed., Oxford 1779); 1 Chilly, Treatise on Pleading and Parties in Actions with Prece~ dents and Forms, e. 11, Of the Forms of Action, 213 (16th Am. ed. by Perkins, Springfield 1876); Louisi­ana: Deuchatell v. RobInson, 24 La.Ann. 176 (1820); New York: Garnsey v. PIke, 9 Cow. (N.Y.) 69 (1828).

Wrongful detention, after a lawful entry, may amourmt



to an ouster, as where a tenant holds over after his

term has expired, and refuses to quit possession.

and further than this the defendant must be in the adverse and illegal possession of the land at the time the action is brought.33
Michigan: Kinney v. Harrett, 40 Mich. 87, S N.W.

708 (1881); Rhode Island: McCann v. Rathbone, 8

III. 207 (1866).
The mere receipt of all profits by one tenant in com­mon of land does not amount to an ouster, entitling Ins eotenant to maintain Ejectment. I Chitty. Trea­tise on Pleading and Parties in Actions with Prece­dents and Forms, e. II, Of the Forms of Action, 214 (10th Am, Ed. by Perkins, Springfield 1870).
If the possession of one tenant in common is not ad­verse to the other’s right, the latter cannot main­tain the action. Gower ~, Quinlan, 40 Mich. 572 (1879).
But if a tenant in coimnon excludes his cotenant, and refuses to let him occupy the land, it is otherwise. Coke, Upon Littleton 11Db (Philadelphia 1853); 1 Chitty, Treatise on Pleading and Parties in Actions with Precedents and Forms, c. II, 214 (16th Am. Ed. by Perkins, Springfield 1876); California: Law­rence v. Balluu, 37 Cal, 518 (1808); Illinois: Lundy v. Luudy, 131 Ill. 138, 23 N.E. 337 (1893); New York:

Valentine v. Northrop, 12 Wend. (N.Y.) 494 (1834); Shaver v. McGraw, 12 Wend. (N.Y.) 558 (1834);

Pennsylvania: Cumberland Valley U. Co. v. Mc­Lanahan, 59 Pa. 23 (1863); Federal: Ilarnita v. Casey, 7 Cranch (U.S.) 456, 3 LEd. 403 (1813).
3~. English: Right en dem Lewis v. Board, 13 East

210, 104 Eng.Rep. 359 (1811); Goodright cx den,.

Raleb v. Rich, 7 ‘P.R. 327, 101 Eng.Rep. 1001 (1797);

Illinois: Reed v. Tyler, 56 Ill. 288 (1570); Whitford

v. Drexel, 118 Ill. 600, 9 N.E. 208 (1886); Michigan:

Lockwood v. Drake, 1 Mich. 14 (18-17) ; W’hite v.

Hapeman, 43 Mich. 267, 5 N.W. 313, 38 Ani.St.Rep.

178 (1883); Mississippi: Wallis v. Doe cx den,.

Smith’s Heirs, 2 Smedes & hr. (Miss.) 220 (1844)

Smith v. Doe en den,. Walker, 10 Snmedes & M.

(Miss.) 584 (1848); New York-’, Jacks-on cx dem.

Clowcs v. Rakes, 2 Caines (N.Y.) 335 (1805): Penn­sylvania: Kribbs v, Downing, 25 Pa. 399 (1855);

Corley v. Pentz, 76 Pa, 57 (1574); Mclntire v. Wing,

113 Pa. 67, 4 AtI. 197 (1886); Vermont; Cooley v.

Penfield, 1 Vt. 244 (1828).
It was held, for instance, that a landlord in possessiot could not maintain the action to bar the right of his absconding lessee. Jackson en Oem. Clowes v. flakes, 2 Caines (N.Y.) 335 (1805).
An actual possession by the defendant is not neces­sary. It is sufficient if he has a deed for the prem­ises, which has been recorded, and claims to have purchased them. Michigan: Anderson v. Court-right, 47 Mich, 161, 10 N.W. 183 (1881); Heinmiller v. Hatheway, 60 Mich. 391, 27 NW. 558 (1888); New

York: Banyer v. Empie, 5 Hill. (N.Y.) 48 (18i3);

Vermont: McDaniels v. Reed, 17 Vt, 674 (1845).

Sec. 106 ACTION OF EJECTMENT

236


OFFENSIVE PLEADINGS

Ch. 10

If there has been no Ouster, or the defendant is not thus in possession when the action commenced, the action must fail. Trespass, not Ejectment, would be the proper remedy in such case.
EJECTMENT.—.-DISTINGUJSIIED FROM AND CONCURRENT WITH OTHER ACTIONS

107. Strictly speaking, Ejectment is to be distinguished from the Writs of Right to Try Title among the old Real Actions, and from Trespass to Try Title; and it was concurrent with trespass in its early stages of develop­ment and with the Writ of Entry.
THE Action of EjeCtment, in theory, was designed to try the right of possession, and is to be distinguished from the Writs of Right, which, in legal theory, were designed to try Property Rights or Title. These An­cient Real Actions, however, were finally abolished, and Ejectrnent was substituted in lieu thereof, as it was found as a practicable matter that you could not Try Title without trying the Right to Possession. The Action is also to be distinguished from Trespass to Try Title, which prevailed in a few Southern States, and which, in those states, was a sub­stitute for Ejectment, but, unlike Ejectment, could be maintained on an Equitable Title. Ejectment was, of course, concurrent with Trespass, in its early stages of development, as it grew out of Trespass. And, in the sense that it lay wherever the plaintiff had a Right of Entry, it was also concurrent with the Writ of Entry.
FORMS OP DECLARATION AND COMMON CONSENT RULE

105. This section includes Forms of a Dec­laration in Eject-tent, and of the Common Con­sent Rule in Ejectment.
DECI.Ar~nIoN IN EJECTMENT ~
IN THE QUEEN’S BENCH, [OR. “COM­

MON PLEAS”] Term, in the ____

year of the reign of Queen Victoria.

to wit, Richard Roe was attached

to answer John Doe of a plea of trespass and ejectment &c. and thereupon the said John Doe by his attorney, complains against the said Richard Roe, that whereas one AS., heretofore, to wit, on the ______ thy of _____ in the year of our Lord _____ in the parish of _______ in the county of



had demised unto the said John Doe

messuages, cottages,

barns, stables, coachhouses,

outhouses, yards,



gardens, orchards, acres of

arable land, acres of meadow land, acres of pasture land, acres

of woodland, acres of land covered with water, and ______ acres of other land, with the appurtenances, situate and being in the said parish of . in the ccamty afore­said, to have and to hold the same to the said John Doe and his assigns thenceforth for the term of fourteen years [a sufficient number of years to extend beyond the time within which judgment can be obtained,] thence next ensuing and fully to be completed and ended; by virtue of which said demise, the said John Doe entered into the said tene­ments with the appurtenances, and became and was possessed thereof for the said term so to him thereof granted; and the said John Doe being so thereof possessed, the said Rich­ard Roe afterwards, to wit, on the day and year aforesaid, [or, on the day of

in the year aforesaid,] with force and arms, &c. entered into the said tenements with the appurtenances in which the said John Doe was so interested, in manner, and for the term aforesaid, which is not yet expired, and ejected the said John Doe from his said farm, and other wrongs to the said John Doe then and there did, to the great damage of the said John Doe and against the peace of our lady the queen; Wherefore
Actions, c. I, Of the Proceedings in an Action, from its Commencement to its TerminatiOn, 27 (Williston ed, Cambridge, 1805).

ai. For another Form of Declaration, see Stephen, A

Wreatise on the Principles of Pleading in Civil



Sec. 109

ACTION OF EJECTMENT

237

the said John Doe saith he is injured and hath sustained damage to the value of £100, and therefore he brings his suit, &c.

2 Chitty, Pleading, p. 875 (Springfield,

1859).
FoRM OF COMMON CONSENT RULE

IN EJEcTMEN’T


Hilary Term, the twenty-ninth year of King George the Second.

iT is ordered by the court, by the assent of both parties, and their attornies, that George Saunders, gentleman, may be made defendant in the place of the now defendant William Stiles, and shall immediately appear to the plaintiff’s action, and shall receive a declaration in a plea of trespass and eject­ment of the tenements in question, and shall immediately plead thereto, not guilty: and, upon the trial of the issue, shall confess lease, entry, and ouster, and insist upon his title only. And if, upon trial of the issue, the said George Saunders do not confess lease, en­try, and ouster, and by reason thereof the plaintiff cannot prosecute his writ, then the taxation of costs upon such non-pros, shall cease, and the said George Saunders shall pay such costs to the plaintiff, as by the court of our lord the kind here shall be taxed and adjudged for such his default in non-performance of this rule; and judgment shall be entered against the said William Stiles, now the casual ejector, by default. And it is further ordered, that, if upon trial of the said issue a verdict shall be given for the defendant, or if the plaintiff shall not prosecute his writ, upon any other cause than for the not confessing lease, entry and ouster, as aforesaid, then the lessor of the plaintiff shall pay costs, if the plaintiff himself doth not pay them.

By the court.
RUNNINGTON, The History, Principles and Practice (Ancient and Modern) of the Legal Remedy by Ejectment, Appendix No. V, 475 (New York 1806).

DECLARATION IN EJECTMENT—ESSEN.

TIAL ALLEGATIONS: (1) IN GENERAL

109, The Essential Allegations in the Decla­ration in Ejectment are:

(I) The Title of the plaintiff to certain Land

(II) The wrongful Ouster or Disposses­

sion

(III) The Damages

The Fiction by which Ejectment was extend­ed from a remedy for Non-Freehold Tenants to Freeholders has in general been abolished. To­day, the suit is usually brought by the real plaintiff against a defendant who is the Actual Occupant.

All Declarations in Ejectment must describe the premises demanded with certainty and precision.
THE fictions by which the Action of Eject­ment was extended from a remedy for a les­see to all claimants, involved alleging in the declaration: (1) A Lease from the real plaintiff to the nominal plaintiff, John Doe;

(2) The Entry by the nominal plaintiff wi­der the Lease; and (3) The Ouster of the nominal plaintiff by the nominal defendant (the Casual Ejector, Richard Roe) during the term of the lease. This childish mum­mery is now generally discarded.


Description of Premises

AS the recovery of a specific tract or

tracts of land is the main object of this ac­tion, the Declaration must describe the prem­ises demanded with certainty and precision, so as to clearly identify them, not only in order that it may be seen that the property demanded is the same as that with reference



to which evidence is introduced, but also in

order that possession may be delivered to the plaintiff or demandant if he succeeds in es­tablishing his right.35


35. Connecticut: Wooster v, Butler, 13 Conn. 309

(1830); Munson v, Munson, 30 Conn. 425 (1862);

Georgia: Stringer v. Mitchell, 141 Ga. 403, 81 SE.



104 (1914); MichiganI Seeley v, Howard, 23 Mich.

11 (1871); Mississippi: Latar v, Canton, 67 Miss.

275, 7 So. 321 (1890); New Jersey: Stewart v. Cam­den & A. It Co., 33 N.J.L. 115 (1868); PennsylvanIa:

238


OFFENSIVE PLEADINGS

Ch. 10


DECLARATION IN EJECTMENT—ESSEN­TIAL ALLEGATIONS: (2) THE PLAIN­TIFF’S RIGHT, TITLE, INTEREST OR POSSESSION

110. The Declaration in Ejectment must de­scribe the premises in question, and state the Title. It should also allege a Right of Entry in the plaintiff at the time the action is brought.
The Plaintiff’s Right

AS we have shown above, the plaintiff, to maintain Ejectment, must have a Legal Right to possession at the time the action is commenced, though prior peaceable posses­sion, without further Title, may be sufficient as against a mere intruder or trespasser, The Declaration must, of course, show such a Title and Right, or it will fail to state a good cause of action. It is sufficient under some statutory forms to allege that plaintiff was owner and possessed of the premises sued for, describing them as in a deed of con­veyance.36
DECLARATION IN EJECTMENT—ESSEN­TIAL ALLEGATIONS: (3) THE WRONG-

Flit OUSTER OR DISPOSSESSION

111. The Declaration should state an Ouster or Dispossession of the plaintiff, in fact or in law, and an actual, adverse possession by the defendant.
THE Action of Ejectment, as we have seen, is only proper where there has been
finn v. NorrIs, 4 Binu, (Pa.) 77 (1811); vermont:

thai-k v. Clark, 7 Vt. 190 (1835); Davis v. Judge, 44 Vt. 500 (1872); State v, Heaphy, 88 Vt. 428, 92 A.

813 (1915)~ Federal: Barclay v, Howell, C Pet. (U, 8.) 498, 8 LEd. 477 (1832).

See, also, Sedgwiek & Wait, A Treatise on the Prin­ciples and Practice Governing the Trial of Title to Land, including Ejectment, Trespass to Try Title &c. § 455 (New York, 1882; 2d ed. New York, 1886).

36. Alabama: flush v. Clover, 47 Ala. 167 (1872); Jackson v. Tribble, 156 Ala. 480, 47 So, 310 (1908); AIa.Code 1907, § 3830; Georgia: Dugas v. Ham­mond, 130 Ga. 87, 60 SE. 268 (1908); Illinois: Parr v. Van Horn, 38 111. 226 (1865); Holt v. Bees, 44 III. 30 (1867), holding that the Allegation of Possession will be supported by proof of a Legal Right to Pos­session; Almond v. Bonnell, 76 III. 538 (1875); flIck-Orson V. flendryx, 88 111, 66 (1878); South Carolina:

Livingston v. Buff, 65 S.C. 284, 43 S.E. 678 (1892).



what amounts, in point of fact or in point of law, to an ouster or dispossession of the per­son having the Right of Entry upon the prem­ises in question. As we have also seen, the

Ouster need not be by an actual turning out of the plaintiff. It may be, for instance, merely a holding over by a tenant after the expiration of his term. It is also generally essential that the defendant shall be in ac­tual possession when suit is brought, and that such possession shall be adverse. These requirements may not exist in all the states, for the scope of this action has been enlarged in some of them by statute, The Declara­tion must, in all cases, show such an Ouster or Dispossession, and such adverse posses­sion or claim, as is necessary in the particu­lar jurisdiction to a maintenance of the ac­tion.37


DECLARATION IN EJECTMENT—ESSEN­TIAL ALLEGATIONS: (4) THE DAMAGES
112. The Declaration should also state the Damages caused by the dispossession of the plaintiff, though their recovery is not the main object of the Action. They are usually, at Common Law, Nominal only. If the Action, as in some states, includes the recovery of Mesne Profits, the Damages must also include such profits, and should be laid high enough to cover both the Full Amount of Such Profits and the Damages for the injury-
WHILE at Common Law the Damages re­coverable hi this action were, and in some states still are, only those caused by the dis­possession or ouster, and the amount would, therefore, be generally only a nominal sum, in most the plaintiff is also allowed to recov­er the Mesne Profits, or those which the de­fendant has received during his adverse pos­session; 38 and in such case the Damages al­
37. Rhode Island: Whipple v. McGlnn, 18 B.!. 55, 25 A. 652 (1892), holding that detention by the defend­ant must he alleged; South Carolina: Guerard ‘cc Jenkins, 80 S.C. 223, 61 St. 258 (1908).
35. Alabama; Scott v. Colson, 156 Ala. 450, 47 So. 60 (1908); Lyons v. Stickney, 170 Ala. 134, 54 So. 496 (1911); FlorIda: Norman v. Beekman, 58 Fla. 325,

Sec. 114


ACTION OF EJECTMENT

239


leged must include a sum sufficient to cover these.3° At Common Law, and when the above privilege is not allowed, as the right of possession only is the subject of contro­versy, the Damages in Ejectment are merely nominal, and a nominal amount only need be stated.4°
THE JUDGMENT IN EJECTMENT

113. At Common Law a Judgment in an Ac­tion of Ejectment was never a Bar to another


action, as the real plaintiff, the Landlord, a!­though mentioned in the title of the action, was not, in reality, a party to the action, and hence was not bound thereby. With the abohi­lion of the Fiction in Ejectment, the action is now directed against the Actual Occupant, as opposed to the Fictitious Lessee, hence a Judg­ment is now binding and may be pleaded under the doctrine of res judicata.
AS explained earlier, because the landlord, who was mentioned in the Title of a case in

Ejeetment, was not in reality a party to the action, the Judgment in Ejectment at Com­mon Law was not conclusive, and hence could not be invoked under the doctrine of res judi­cata. The judgment, for the same reason, was not even conclusive as between the same parties or as to the same land, as the defeated landlord, not being a party to the action, was free to seek two new collaborators, and thus start litigation all over again. This situation created so much dissatisfaction that in the early part of the Eighteenth Century, after the plaintiff had been defeated in several
50 So. 870 (1909); Mississippi Garner v. Jones, 34

Miss. 505 (1557); New Fork: Danaiger v, Boyd, 54

N.Y.Super.Ct. 365 (1877); pennsylvania: Alexander

V. Shalala, 228 Pa. 297, 77 A. 554, 139 Am,St.Rep.

1004, 31 LEA. (N.5.) 844, 20 Ann.Cas. 1330 (1910);

Rhode Island: Berresboff v. Tripp, 15 11.1, 02, 23 A.

104 (1885); West Virginia: Croston V. McVicker, 76

W.Va. 461, 85 SE. 710 (1915),


~. New Jersey: Sneider cc I. Schwenk, Inc, 115 A.

(142.) 527 (1921); Pennsylvania: Bayard V. Inglis, 5

Watts & S. (Pa.) 465 (1843); Federal: Battin v.

Bigelow, Pet.C.C. 452, Fed.Cas.No.l,1O5 (1807).


1O~ Illinois: Duncan y, Journey, 137 Ill.App. 568 (1907); Rhode Island: Rinfret & Arruda V. Mor­rlsey, 29 Ri. 223, 69 A. 763 (1908).

suits, the Court of Chancery intervened to enjoin the plaintiff from prosecuting further actions. This same early practice was some­times the cause of what was known as Equi­table Bills of Peace.4’ Under modem stat­utes abolishing the Fiction in Ejeetment, the action is now directed in the names of the actual parties, hence the Judgment carries the same conclusiveness and finality as any other Judgment and, of course, may be plead­ed under the doctrine of rca judicata.42


DECLARATION IN TRESPASS FOR MESNE

PROFITS—ESSENTIAL ALLEGATIONS:

(1) IN GENERAL

114. In the Declaration in Trespass for Mesne Profits, the Essential Allegations are:



(I) The Tithe of the Plaintiff

(II) The Ouster or Ejectment

(III) The Damages
EVERY wrongful Ejectment includes a Trespass, as Ejectment was created by ex­tending the Action of Trespass to protect the interests of the non-freeholders or tenants. It follows, therefore, that one who recovers land from which he has been ousted is not

only entitled to recover Damages for the

original act of dispossession, but he is also entitled to recover Damages for the time the disseisor continued in occupation of the premises and for the wrongful withholding thereof. This act of withholding was, how­ever, not a Trespass, though tortious. As Saimond remarks: “To remain wrongfully in possession of land is not, as we have seen, a trespass, although the act of first entering upon the land was a trespass.” ‘~ In conse­quence, the profits realized from the land by the wrongdoer during the period of wrongful retention of the property, were not recover-


41. Story, Commentaries on Equity Jurisprudence as Administered In England and America, c. XXII, Bills of Peace, 853 (Boston, 1836).
42. Miles V. Caldwell, 2 Wall. (U.s.) 35, 17 LEd. 755 (1864).

43. Crary ‘cc Goodman, 12 N.Y. 266 (1801); Salmond’s

Law of Torts, e. 16, 177 (10th ed. London, 1945).

240


OFFENSIVE PLEADINGS

Ch. 1&

able in the Action of Ejectment; only Dam­ages for the wrongful Ouster, the amount being merely nominal, and not sufficient to compensate the plaintiff for the long period



of occupation by the wrongdoer, extending

from the date of the original disseisin until the time of recovery of possession. In order to place himself in a legal position to recover the profits acquired by the wrongdoer, the plaintiff was required to regain possession by a lawful Re-Entry, or by a Judgment in the Action of Ejectment. Having recovered possession, the owner was, by a Legal Fic­tion, presumed” to have been in possession throughout the intervening period. Upon this presumed possession, the plaintiff may then bring an Action f or Mesne Profits against the person who was the defendant



in the Action of Ejectment. In this action, the wrongful occupation may be alleged as a continuing Trespass which entitles the own­er, now restored to possession, to all the prof­its made during the period of his ouster. These profits included crops, rents, or other assets taken from the land during the period of disseisin, as well as other Damages due for injury to the property.~

DECLARATION IN TRESPASS FOR MESNE



PROFITS—ESSENTIAL ALLEGATIONS:

(2) THE PLAINTIFFS RIGHT, TITLE, INTEREST OR POSSESSION


115. The Declaration in Trespass for Mesne Profits must describe the premises from which the profits arose, and the title of the plaintiff thereto, as well as the value of the profits them­selves, and their receipt by the defendant.
IT is obvious from the nature of this aE-’ tion that the plaintiff must expressly state and describe the different parcels of land
44. 3 Blgckstone, Commentaries on the Law of Eng­land, c. 12 Of Trespass Wrongs, 210 (1st Ain.ed. Philadelphia, 1782).
45. IllinoIs: Smith v. Wenderlich, 70 111. 426 (1873);

New York: Dewey v. Osborn, 4 Cow. (N.Y-) 321i

(1825); PennsylvanIa: King V. Laker, 25 Pa. 186

(1855).


from which the profits arose,46 as the de­fendant might otherwise compel him to make what is called a New Assignment, or restate­ment of the grounds of his action, by plead­ing “iiberwrt tenementum” or the common bar. As it is a separate action from the pri­or Action of Ejectment, the plaintiff’s title to the premises should also appear, as ‘cvell as the value of the Mesne Profits accrued, and their receipt by the defendant during the period of the Ejectment. All these facts are stated in a general and summary manner, as in other Forms of Trespass, save that the

description of the premises must be such as to identify them, and the value of the Mesne Profits which the defendant is alleged to have received must be correctly alleged.4

The pleader will here avoid confusion by not­ing that while this action may be between those only who were parties to the prior Ac­tion of Ejectn’.ent, and while in such cases the Judgment in that Action will be Conclu­sive Proof of the plaintiff’s Possessory Title, and of the Entry and Possession of the de­fendant,~ the suit may also be for the re­covery of Mesne Profits for an occupancy antecedent to the time for which the plain­tiff’s Title has been actually established, or the Action may be brought against a prece­dent occupier, in which cases the Record would not be admissible, and the plaintiff would be compelled to prove his Title as in any action.49 The action, therefore, so far as the pleadings are concerned, must be sepa­rate and independent, as if no prior adjudi­cation had been made.
46. Higgins v. Highfteld, 13 East 407, 104 Eng.Eep.

427 (1811).


fl. Ibid.
48. New York: Lion v, Burtis, 5 Cow. (N.Y.) 408

(1826); virginia: Whittington v, Christian, 2 Rand.

(Va.) 363 (1824); Federal: Chirac V. Reinicker, 11

Wheat (U$.) 280, 6 L.Ed. 474 (1826).


~. English: Aslin y. Parkln, 2 Burr. 665, 97 Bug. Rep. 245 (1755); Maryland: West cc hughes, 1 flar.. & S. (Md.) 574, 2 Ani.Dec. 539 (1805); New York:. Jackson v. Randall, 11 Johns, (N.Y.) 405 (1814).

Sec. 118

ACTION OF EJECTMENT

241

DECLARATION IN TRESPASS FOR MESNE

PROFITS—ESSENTIAL ALLEGATIONS:

(3) THE OUSTER OR EJECTMENT


116. The Declaration must also state the Entry and Ouster or Ejectment by the defend­ant, and the time during which the latter con­tinued.
FOR the same reasons as those above giv­en regarding the particularity of statement necessary in showing the plaintiff’s right, the Declaration must also contain a Formal Al­legation that at a certain time the defendant wrongfully entered upon the premises in question, and ejected the plaintiff therefrom, and the length of time such dispossession continued; 50 and this statement of the in­jury should also include an Allegation of Waste or other injury to the property com­mitted by the defendant during that period, as the plaintiff will be allowed to include such Damage in his recovery.
DECLARATION IN TRESPASS FOR MESNE PROFITS—ESSENTIAL ALLEGATIONS:

(4) THE DAMAGES

117- The Declaration must also state the Damages resulting from the wrongful dispos­session, which, in this Action, are generally the value of the Mesne Profits received by the defendant.
WE have before seen that the Damages in

the Common-Law Action of Ejectment are Nominal, only. In this Action for Mesne Profits, the recovery of the profits them­selves, or rather their value, is the object of the action, and not the enforcement of the possessory right. The Damages to be stated, therefore, are the value of such profits dur­ing the period of dispossession; ~‘ but the plaintiff may add to this, if specially alleged as part of his claim, the Damage resulting from any injury done to the premises in con­


50. HIggins v. Highfleld, 13 East 407, 104 Eng.Rep.

427 (1811).


51. New Jersey: Den ox dein. Bray V. MoSbane, 13 N.

IL. 35 (1331); New York: Jackson v. Loomis, 4

Cow. (N.Y.) 168, 15 Am.Dee 347 (1825); Federal:

Green V. Riddle, 8 Wheat. (U.S.) 1, 5 LEd. 541 (1324).

sequence of any misconduct of the defend­ant.52 And this case is also an instance with­in the general rules that the recovery can­not exceed the Damages laid.
STATUS OF EJECTMENT AND TRESPASS FOR MESNE PROFITS UNDER MOD­ERN CODES, PRACTICE ACTS AND RULES OF COURT

118. Under certain Modem Codes and Prac­tice Acts the Plaintiff may recover mesne profits in his action to recover possession of real property, thereby in effect permitting a combination of what at the Common Law were the separate actions of Ejectment and Trespass for mesne profits.
Ejeetment

(I) In England.—In the form and scope, as outlined above, the Action of Ejectment continued down to modern times, supersed­ing practically all the Ancient Real Actions known to the Common Law. By the Statute of 3 & 4 Wm. IV, c. 27, § 36 (1833), the Real Actions were abolished, Ejectment, under Section 36 being one of Four Actions except­ed. The Statute provided that no descent cast, discontinuance, or warranty shall here­after defeat any Right of Entry or Action for the recovery of any lands, and this enact­ment, in effect, converted all Titles into Pos­sessory Titles, and thus made the remedy by Ejectment of universal application, and, in this Form, it remained unchanged until 1852.
(A) The Common Law Procedure Acts of

1852, 1854 and 1860.—Under the Common

Law Procedure Act of 1852 ~ and the

Amendatory Acts of 1854” and 186O,~~ the
52. New Jersey: Stewart V. Camden & A. It. Co., 33

N.J.L. 115 (1868); Pennsylvania: Huston v. Wicker-

sham, 2 Wafts & S. (Pa.) 308 (1841); Federal: New

Orleans v. Gaines, 15 Wall. (U.S.) 624, 21 LEd. 215

(1872).
63. 15 & 16 viet. e. 76, 92 Statutes at Large 285 (1852).
54- 17 & IS Viet. e. 125, 94 Statutes at Large 794 (1854).
SS 23 & 24 vioL c. 126, 100 Statutes at Large 793 (1860).

242


OFFENSIVE PLEADINGS

Cli. 10

Common Law Action of Ejectment, as devel­oped by the Courts, having escaped the abol­ishing effects of 3 & 4 Was. IV, c 27 (1833), underwent material change, which had the effect of abolishing the fictitious proceeding in Ejectment and of reforming and simplify­ing its procedure. Pleadings of all kinds were abolished and thereafter the action was commenced by a Judicial Writ directed to the person in possession and to all persons enti­tled to defend the possession of the property claimed and described in the Writ, command­ing them to appear and defend the possession of the property sued for, or such part there­of as they may deem fit, and notifying them that in default of appearance they would be turned out of possession. If the defendants failed to appear, or appeared for the purpose of defending only a part of the property, the plaintiff was entitled to a Judgment of Re­covery of all or part of the land sued for, as the case might be. As appearance itself con­stituted a Defense to the Writ, the Court then made up an issue between the one who

claimed possession in the Writ and the par­ties appearing to defend their possession. Such issue, thus formulated, was then fried according to the general principles which the Common Law had developed for the govern­ing of the former Action of Ejectrnent. It was assumed that these three Reforming Acts authorized the use of Equitable Defens­es, but the Courts in construing them held that such Defenses were not available, as the Pleadings had been abolished.
(B) The Supreme Court of Judicature Act of 1873,~°—In this Form the Action contin­ued down to the Supreme Court of Judica­ture Act of 1873. Under this Act the Supe­rior Courts of Law and the Courts of Chan­cery were consolidated into the High Court of Justice, with five divisions, and thereafter the Action of Ejectnient, and all other ac­tions, were commenced by a Judicial Writ of Summons, upon which the plaintiff endorsed

a Statement of his Calm, together with the relief asked for, to which the defendant made a Statement of his Defense. The pleadings were governed by Rules of Court under Gen­eral Orders issued in 1833. By Rule 21 un­der Order XXI, a defendant in possession was excused from pleading his Title unless his Defense depended upon a.n equitable estate or right, or unless he asked for relief on eq­uitable grounds. Under the influence and effect of the foregoing statutory changes, extending from 1833 until now, in England, Ejectment has lost its name and many of its distinctive features, but even today, the prin­ciples underlying the Action of Ejectment still govern where an Action is brought for the recovery of land.


(II) In the United States.—The Action of Ejectment, as developed at Common Law, and prior to the modem statutory changes in England, was generally adopted in the Sev­eral States of the United States. Some idea as to the extent of its acceptance can be seen in Tyler’s excellent work on Ejectment,57 the

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