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§ 3, 98 (Edited by Vinogradoff, Oxford 1914).

REAL ACTIONS.—Real Actions were those brought for the Specific Recovery of “Seisin,” the possession of a freehold estate in Real Property. They included:
The Writs of Right

The Possessory Assizes

Writs of Entry

Forcible Entry and Detainer


MIXED ACTIONS.—Mixed Actions are such as are brought both for the Recovery of Real Property, and for Damages for injury in respect to it. Waste was an example of this Type of Action and it lay to recover land wasted by a tenant with Treble Damages,
PERSONAL ACTION,S.—Personal Ac­tions are those brought for the Recovery of a Debt or Possession of Specific Personal Property, or of Damages for the Breach of a Contract, or of Damages for some Injury to the Person, or to one’s Relative Rights, or to Personal or Real Property.
The remedy which a given Writ afforded a Litigant was called an Action. And as these Actions grew in number and scope, as a re­sult of the action and interaction which took place between the Chancery and the Three Superior Common-Law Courts, they were

often differentiated by very slight shadings of meanings, and it was only natural that an effort should be made to classify the various Actions. And in connection with this effort, it should always be borne in mind that the term “classification” may and almost inevi­tably is bound to have different implications in Different Periods of a Nation’s Develop­ment. Thus, if, in English Legal History, we go back as far as Glanvill and Bracton, we find that they regarded some Actions Per­sonal which Blackstone,43 writing about 1765, treated as Real or Mixed. But for general purposes, we may nevertheless now use as


43. Diackstone’s Commentaries on the Laws of Eng­land, Book III, C. VI, Of Wrongs, and their Remedies, Respecting the Bights of Persons, 672, 673 (4th ed by Chase, New York 1938).

(I)


(II)

(~)

(IV)


a Id. at § ‘(a), 79.

Sec. 10

ANCIENT REAL ACTIONS

47

our starting point the Classification which Blackstone published to the world with the appearance of the first edition of his Com­mentaries on the Laws of England. He de­clared: “With us in England the several Suits or Remedial Instruments of Justice, are from the subject of them distinguished into three kinds, Real, Mixed and Personal.44



Real Actions (or as they are called in the Mirror, Feudal Actions), which concern Real Property only, are such whereby the plaintiff, here called the Demandant, claims title to have any lands or tenements, rents, com­mons, or other hereditaments, in fee-simple, fee-tail, or for term of life. By these Actions formerly all disputes concerning Real Es­tates were decided; but they are now pretty generally laid aside in practice, on account of the great nicety required in their manage­ment, and the inconvenient length of their process; a much more expeditious method of trying titles being since introduced, by other Actions Personal and Mixed.

Mixed Actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for in­stance an Action of Waste.


Personal Actions are such whereby a man claims a Debt, or Personal Duty, or Damages in lieu thereof; and, likewise, whereby a man claims a satisfaction in Damages for some injury done to his person or property. The former are said to be founded on Contracts, the latter upon Torts or Wrongs; and they are the same which the Civil Law calls ‘ac­tiones in personam, quae adversus eum in­tenduntur, qui ox contractu vel delicto obli­gatus ost aliquid dare vol concedere’. Of the former nature are all actions upon Debt or Promises; of the latter all actions for Trespasses, Nuisances, Assaults, Defamatory Words, and the like.
44. The original arrangement of the three types of Actions reads Personal, Mixed and Real, which or~ der has been changed for purposes of presenta­

“Under these three heads may every spe­cies of remedy by Suit or Action in the Courts of Common Law be comprised.” ~


TILE ANCIENT REAL ACTIONS FIRST IN ORDER OF DEVELOPMENT

10. There were Two Divisions of the Real Actions—those founded on Seizin or Possession, and those founded on the Property or Right.


JACKSON defines a Real Action as “one that is brought to recover the freehold in lands, tenements or hereditaments, claimed either in fee simple, fee tail, or for life, by one who is deforced, against him who is a ten­ant thereof.”4~ They were known as Real Ac­tions because the Judgments rendered there­in were in rem and awarded seizin or posses­sion.47 In these Actions the Party bringing the Action was known as the Demandant, while the Party against whom it was brought was the Tenant. And the First Pleading on the part of the Demandant was called a Count. Over a Period of Several Centuries running as far as the reign of Elizabeth [1558~l6O3],~~ the existence of these Reme­dies, available only in favor of owners of freehold estates, made possible the settle­ment of all disputes concerning real estate on a reasonably satisfactory basis. These Writs to determine the rights of property and the rights of possession in a freehold, varied according to the title or seizin of the Demandant, and the circumstances of ouster or deforcenient; they were feudal in origin and were in number about sixty, the distinc­tion between them being highly technical and refined, and the trial long and costly, all of which facts were factors in their ultimate
45. Blackstone’s Commentaries on the Laws of Eng­land, Book III, a vi, Of Wrongs, and their Reme­dies, Respecting the Rights of Persons, 672, 073 (4th eu. by Chase, New York 1938).

46. Real Actions, c. I, 1 (Boston 1828).

47. 3 Street, Foundations of Legal Liability, C. IV, Classification of Actions In CoinmQn-Law system, 39 (Nortbport 1906).

48. Alden’s Case, 6 Co.itep. 10~ 77 Eng.Bep. 21T (1601).

tton.


48

FORMS OF ACTION

Cli. 2


abolishment.49 These Writs were arranged

POSSESSORY REAL ACTIONS:—Cont’d

according to the character of interest involv-

(U) Writs of Entry—Continued

ed, in an heirarchial scale, with the more important actions at the top and the less important at the bottom, as appears from the listing of certain of these Writs in the chart below:

(C) The Writ of Entry sur In-trusion
(1)) The Writ of Entry sur Abatement




(Ill) Writs Ancestral Possessory

CLASSIFICATION OF ANCIENT REAL

(IV) Writ of Quare Ejecit Infra Termi­

ACTIONS

nun

PROPRIETARY REAL ACTIONS:

(I) Writs of Right Proper


(A) The Writ of Right Patent

(B) The Writ of Right Quia Do-minus Remisit Curiam



(V) Writ of De Ejectione Firmae (VI) Writ of Quare Impedit (Vii) Writ of Waste

(Viii) Writ of Deceit


(IX) Writ of Partition

(U) Writs in the Nature of Writs of

The Basis of Classification

Right

ACCORDING to the nature of the thing

(A) The Writ of Right de Ra-

recovered, the Ancient Real Actions fell into

tionabili Parte

Two Groups: in One Group only lands, tene­

(B) The Writ of Right of Ad-

ments, or hereditaments were recovered, and

vows on

these Actions were treated as Real. In the

(C) The writ of the Right of Dower

Other Group, Damages, as well as lands, tenements, or hereditaments were recover-

(D) The Writ of Dower Unde Ni-hil Habet

(E) The Writ of Formedon



able, and these Actions were called Mixed. However, as all of them were classed and

treated with the Real Actions, as their lead­ing characteristic was the recovery of a



POSSESSORY REAL ACTIONS:

freehold, and as recovery of Damages was

(I) Writs of Assize
(A) The Assize of Novel Dissel­sin
(B) The Assize of Darrein Pre-sentment

incidental, both the Real and Mixed are gen­erally treated as Real Actions.

Classifying the Real Actions on the basis of the nature of the Demandant’s Title, Real Actions were either Proprietary, in which The demandant sued on his right of property,



(C) The Assize of Jung Utrum

having lost his right of possession; or Poc­

(D) The Assize of Mort d’Ances-

sessory, in which he sued to recover his

ton

right of possession, which might belong to

(II) Writs of Entry

him in addition to his right of property or independent thereof.

(A) The Writ of Entry sun Dig-seisin
(B) The Writ of Entry sun Alien-ation

The Distinction Between Proprietary and Possessory Actions
AT early Common Law a Complete Title to Real Estate included the ultimate right

40. Real Property Limitations Act, 3 & 4 Win. IV, a

of property, the right of possession, and the

27, ~ so (1833).

actual present possession. As the right of

Sec. 10

ANCIENT REAL ACTIONS

49,

property and the right of possession might be in different persons while the actual pos­session was in a third person, actual posses­sion was regarded as a right distinct from the right of property and the right of pos­session.50


If one having the Complete Title to land was dispossessed, he lost one of the constitu­ent elements of his Title, that is, actual pos­session. This left remaining in him the right of possession and the right o~ property. As to all other persons except the person ousted, the disseisor became the owner of the Com­plete Title; as to the person ousted, he was the owner of the Complete Title, subject to be defeated by enforcement of the disseisee’s superior right of property or right of posses­sion. If such rights were not enforced with­in certain periods of time fixed by the Com­mon Law or by Statute, the disseisor’s Title became indefeasible as to all failing to show a superior right of property or right of pos­
50. “The treatment of Actual Possession as a Right, or as implying a right distinct from the right of pos­session, has been misleading. Actual possession is a Fact or Status. As a Fact it Is prima Jane Evi­dence of the Right of possession, because It is the natural manifestation of that right As a Fact or Status it is protected by Law for reasons of public policy against displacement, except by Judicial Process at the instance of someone having a Supe­rior Right to possess. Peaceable Possession there­fore is not a Right, but it is a Fact or Status which implies the Right in the possessor to continue his possession until it is displaced by Judicial Process. This Right of Possession is provisional, and sub­ject to determination at the suit of any one having an older and therefore Superior Right of Posses-zion. In imputing to the peaceable possessor a Right in the Fact of his Possession, nothing more could have been Intended than to recognize In him a Peculiar Right of Possession, which springs from and is implied from the Present Pact of Possession. This Eight of Possession night co-exist with a Right of Possession In some one else springing from a Previous Fact or Status of peaceable possession. Thus we have two persons Invested with rights of possession. One founds his right on a present peace~ able possession, the other founds it on a previous peaceable possession, or a Right of property which resolves itself ultimately Into an older possession or seisin.” Martin, Civil Procedure at Common Law, c. IV, Ancient Real ActIons, 100, n. 1 (St. Paul, 1905).

session. The same rule applied in case of an abatement where upon the death of a per­son seized of an inheritance a stranger ac­quired possession of the freehold before ac­tual entry of the heir or devisee; also in case of an intrusion where a stranger, after ter­mination of a particular estate of freehold, acquired possession before entry of the re­mainclerman or reversioner. The effect of a disscisin, abatement or intrusion was to convert the estate of the disseisee, heir, dew isee, remainderman, or reversioner, as the case might be, into rights of possession and rights of property. Such rights were de­scendible, but neither devisable nor assign­able. Conversely, the interest of the disseis­or, abator, or intruder, was alienable, divisi­ble and descendible, being an estate in pos­session.


These rights of property and rights of pos­session were remediable under the Ancient Law by the Extra-Judicial Process of Self-Help, or by the Judicial Process represented in the Scheme of Real Actions. Upon dis­seisin, abatement or intrusion, the person ousted—the disseisee, heir, devisee, remain­derman, or reversioner—was permitted to make a peaceable entry, making his Title again complete. If peaceable entry was not possible, his only course was to resort to le­gal redress, as force could not be used with­out falling under penal restrictions. Entry by force was not only a punishable offense, but the former occupant could by a Writ of Forcible Entry immediately be restored to possession, irrespective of any right of pos­session or right of property of the original disseisee. Failure on the part of the dis­seisee to make a peaceable entry in the life­time of the disseissor, abator or intruder, re­sulted in ending the right of peaceable entry without process. Extra-Judicial Entry was ended by the fact of a descent cast. There­after the disseissor’s heir could rot be oust­ed except by an Action asserting the dis­seisee’s superior right of possession or of

so

FORMS OF ACTION



Ch. 2

property. But the descent of incorporeal hereditaments lying in grant did not take away the right of entry.5’ The disseisee, however, by making claim at any time be­fore the death of the disseisor, might evade the effect of the descent east, and save his right of entry for a year and a day after such claim made. Thus, the continuance of the disseisor in possession after claim made was regarded as a new disseisin. By the Statute of 32 Henry VIII, c. 33, 5 Statutes at Large 48, ~154O], the Right of Entry was extended so that a descent from a disseisor could not have the effect of taking away the Right of Entry, except where the disseisor had peace­able possession five years next after the dis­seisin, The Statute was construed as not being applicable to a descent from the heir of a disseisor, or from his feoffee, so that such descents barred the Right of Extra-Ju­dicial Entry, notwithstanding a want of five years’ possession. It may be added that in cases in which the wrongdoer had acquired possession lawfully and then unlawfully de­tained it, the party entitled had neither a Possessory Action, nor Remedy by Self-Help; he could only invoke a Proprietary Action to establish his rights.


For reasons of public policy, the Common Law protected a person in peaceable posses­sion of land, irrespective of the method of acquisition.52 Actual seisin or possession, however acquired and however wrongful, created a presumptive right of possession, or a species of property based on the fact of
51. Co.Litt. 28Th (London, 179t).
55. “It accomplished this In three ways: 1st, by re­fusing to enforce in the Courts any one’s Claim to Possession wbicb was not Superior to the flight of the actual possessor; 24, by summarily restoring to the ousted possessor his possession, when it was

forcibly taken from him, Irrespective of any Right of Possession, in the party who had interrupted the possession; 3d, by punishing any one who attempt­ed to enforce his Rights of Possession, without Process of the Courta’ Martin, Civil Procedure at Common Law, c. IV, Ancient Real ActIons, 109 (St. Paul, 1905).

his possession~ In case of being dispossess­ed, the disseisee could vindicate his right of possession by resort to some Possessory Pro­ceeding, basing his action on his actual seis­in and the wrongful act of the disseisor in ousting him. At hand were the Possessory Remedies in the Form of the various Writs of Assize or a Writ of Entry, depending up­on the character of his case. Also available was Self-Help if resorted to before descent cast, and if not barred by the Common Law or Statute. If such Remedy failed or was lost, he still might regain possession by some form of Possessory Action, provided he act­ed within the period of time in force at the time the action was brought. In general, limitation of Possessory Actions was fixed at twenty years. If the Possessory Action was not brought within the time limit, or if, when brought, it resulted in defeat, the disscisee night still resort to a Proprietary Action, if brought within the period of time limiting such actions, which was sixty years. In such actions the plaintiff alleged seisin or possession of a fee, and added that he claimed “as of right,” thus raising the Issue of ultimate dominion, or right of ownership, which either included or implied the superi­or right of possession as incident to it or constituted the right itself. Generally, this dominion or ownership is referred to as something very different in its nature from the right of possession. It becomes appar­ent, however, when ownership in land is re­solved into its essential elements, that the fundamental one is the right of possession. It would seem, therefore, that the right of property enforced in the Proprietary Actions is nothing more than an older and superior right of possession.54
In its strictest sense property is the right to possess and use a determinate thing, in­~3. Ibid.

54’ 2 ?ollock and Maitland, History of English Law, c. IV, Ownership and Possession, 77, 78 (CambrIdge 1895).

Sec. 10

ANCIENT REAL ACTIONS



5’

definitely in point of user, unlimitedly in point .of duration, and unrestricted in point of alienation or disposition.5” In England there was probably no property in land which measured up to this ideal of absolute prop­erty. But from Bracton on, the rights of proprietorship have been ascribed to the ten­ant in demesne, notwithstanding the rights of seigniory remaining in the lord and ulti­mately in the sovereign. The right of the tenant in fee has in point of fact been treated as property in the highest sense, even though it falls short of the ideal of absolute proper­ty. And the philosophy or logic of property rights has been done no violence by ascrib­ing them without limitation to the rights of a tenant in English law, much less to a pur­chaser in fee under the Laws of the Several States of the United States.


As the foundation of the right of owner­ship is the right of possession to which the other rights are primarily incidental, it fol­lows that one cannot use or dispose of a thing which is in the adverse possession of another. When the right to possession is once vindicated, these other rights are re­stored along with the possession. Williams, the distinguished authority on English Prop­erty Law, has stated that there is “no action in the Law of England by which property either in goods or land is alone decided,” ~ as distinguished from the right to possession either immediate or future. The explanation of this is found in the fact that the right of property in land or goods is only another name for the right of possession, and the other rights incidental to it. Thus, in all of the Real Actions, whether Proprietary or Possessory, the Material Issue was the right of possession. As Pollock and Maitland so
5~. 2 Blackstone’s commentaries on the Laws of Eng­land, c. I, 207—215 {4th ed. by Chase, New York

1914).


truly observed, “every Title to Land has its root in Seisin; the Title which has its root in the Oldest Seisin is the Best Title.” ~ The superior right of possession, being the older one, was called the right of property, but only in comparing it with the right of pos­session, which came from subsequent adverse enjoyment, and which was to be protected by Law for reasons of public policy. If the technical distinction between Proprietary and Possessory actions had never developed, and if our English ancestors had only known Possessory Actions, it is extremely probable that the Scheme of Ancient Real Actions would have been better understood and en­forced. We shall see later how this failure was instrumental in bringing about the aboll­tion of the Real Actions.
A form of the Writ of Right and a form of the Assize of Novel Disseisin appear below:
FORM OF THE WRIT OF EIGHT
GEORGE THE FOURTH, by the grace of God, of the United Kingdom of Great Britain and fretand King, Defender of the Faith and so forth,

To the sheriff of County,

GREETING:

COMMAND C.D., that justly and without delay he render unto AS. four messauges, four gardens, and four acres of land, with the appurtenances, in the parish of ______ in the County of , which he claims to be his right and inheritance, and whereof he complains that the aforesaid C.D. un­justly deforces him. And unless he shall so do, and if the said AS. shall give you se­curity of prosecuting his claim, then sum­mon, by good summoners, the said C.D., that he be before our justices at Westminster, in eight days of Saint Hilary, to show where-


57. 2 Polloek and Maitlanci, History of English Law,

e. IV, Ownership and PossessIon, 46 (Cambridge 1895).

St Williams, Personal Property, 26 (7th ed London

1570).


52

FORMS OF ACTION

Ch. 2

fore he bath not done it; and have you there the summoners and this writ.


WITNESS, ourself at Westminster,

STEPHEN, Principles of Pleading, c. I, 44 (3d Am. ed., Washington, D.C. 1900).


FORM OF THE ASSIZE OF NOVEL DISSEISIN
EDWARD THE FIRST, King of England, To the Sheriff of County,
GREETING:

A. hath complained unto us that B. unjustly and without judgment hath diisseised him of his freehold in C. within thirty years last past, and therefore we command you that if the aforesaid A. shall make you secure to prosecute his claim, then cause that tene­ment to be reseized, and the chattels which were taken in it, and the same tenement with the chattels to be in peace until the first assize, when our justices shall come into those parts, and in the meantime cause twelve free and lawful men of that visne to view that tenement, and their names to be put into the writ, and summon them by good summoners, that they be before the justices aforesaid, at the assize aforesaid, ready to make recognizance thereupon, and put by gages and safe pledges the afore­said B., or, if he shall not be found, his bailiff, that he may be then there to hear that recognizance, &c. And have there the summoners, the names of the pledges, and this writ, &c.
BOOTH, Real Actions, c. XIX, 211 (1st Am. ed., New York 1808).
Forcible Entry and Detainer

AT Common Law the Remedy for a Forci­ble Entry or a Forcible Detainer was not recognized as a Civil Action. When author­ized by Statute,58 it originated as an incident


53. See Statute of 5 RIch. II, c. 7, 2 Statutes at Large

240 (1381).

to a criminal prosecution of a Party who had used superior force in making entry upon land.5° The Remedy as thus developed took the form of a summary restitution of the land in question by the Justices of the °° or by Action of the Court of King’s Bench. This proceeding, under which the disseisee might be restored to his Jand, was early used as a substitute for the more cumbersome and highly technical Real Actions, thus aiding in their gradual deterioration.6
According to Blackstone 62 a Forcible En-try consisted of violently taking possession of lands or tenements with force and arms and without authority of Law. And a Forci­ble Detainer consisted of keeping possession of lands and tenements in the same lawless manner. Both offenses were not only against the person turned out or kept out of posses­sion, but were wrongs against the King.
As enacted and construed these English Statutes on Forcible Entry and Detainer furnished a Popular Remedy for a period of five hundred years. In 1879, the Statute of 8 Hen. VT, c. 9, 3 Statutes at Large 121 (1429) was repealed except as to its crim­inal provisions.63 And the Ancient English statutes regulating Forcible Entries and De­tainers, in large measure, have been recog­nized or reenacted in most American States, with such modifications as might be neces­sary to meet local conditions, and as such have exerted an important influence on our Modern Procedure.
59. Bex v. Faweet, rely. 99, 80 EngItep. 67 (1007).
90. See Statutes of 15 RIch. II, c. 2, 2 Statutes at

Large 339 (1391); 8 Hen. VI, c. 9, 3 Statutes at

large 121 (1429); 31 Ella. c. 11, 6 Statutes at Large

418 (1589); and 21 Jae. I, c. 15, 7 Statutes at Large

272 (1623).
CL Hale, History of the Common Law, e. VIII, 296— 301 (5th ed. London 1794).
05. 4 Blackatone, Commentaries on the Laws of Eng­land, e. 11, 148 (7th ed. Oxford 1775).

03. 42 & 43 Vict. C. 59 (1879),

Sec. 11

MODERN REAL ACTIONS



53

The Decline of the Real and Mixed Actions

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