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action to recover damages for the conversion of

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action to recover damages for the conversion of

personal property”.




106. Scope of the Action.

107. Ejectment—Distinguishecj From and Concurrent ~vith Other Actions.

108. Forms of Declaration and Common Consent Rule.

109. Declaration in Ejectment—Essential Allegations:

(1) In General.

110. Declaration in Ejectment—Esserjtjal Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession.

111. Declaration in Ejectment—Essential Allegations:

(3) The Wrongful Ouster or Dispossession.

112. Declaration in Ejeetinent—Essential Allegations:

(4) The Damages.

113. The Judgment in Ejectment.

114. Declaration in Trespass for Mesne Profits—Essential Allegations:

(1) In General.

115. Declaration in Trespass for Mesne Profits—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession,

116. Declaration in Trespass for Mesne Profits—Essential Allegations:

(2) The Ouster or Ejectment.

117. Declaration in Trespass for Mesne Profits—Essential Allegations:

(4) The Damages.

118. Status of Ejectment and Trespass for Mesne Profits Under Modern

Codes, Practice Acts and Rules of Court.


106. The Action of Ejeetment lies to recover possession of Real Property adversely held by the defendant. In order that the Action may be maintained:


The Plaintiff must have the right to possession at the time the Action commenced; prior possession is sufficient as against a mere intruder or trespasser.

(II) The plaintiff must have been dis­possessed or ousted.

(III) And the defendant must be in the adverse and illegal possession of the land, actual or constructive, at the time the Action is brought.

In the absence of a Statutory Provision to the contrary, merely Nominal Damages are giv­en for the dispossession in the Action of Eject­nient proper. The Mesne Profits, during the

defendant’s possession, must be recovered at Common Law in a separate Action of Trespass for Mesne Profits, or by some similar remedy, In many Jurisdictions, by Statute, Mesne Proilts and other Damages may be, and in some, must be recovered in the Action of Ejectment proper.
1. In general, on the origin, history anti development of the Action of Ejectment, see:
Treatises: Malloy, Quare Impedit, Containing an Abridgment of the Law Concerning the Patronages of Churches, the Titles of Ecclesiastical Persons, &c., and Precedents of Pleadings, &e. (London 1737); 3 Blnelcstone, Commentaries on the Laws of Eng. land, c. II, Ejectment, 199 (1st Am, ed., I’hulatlelphia 2772); Gilbert, The Law and l’raetiee of Ejeetments (London 1751); Runnington, The History, Principles and Practice, Ancient and Modern, of the Legal Remedy by Ejeetment, and the Resulting Action for Mesne Profits (Amer. ed. by Ballantine, New York 1800; London 1820); Wareing, The Practice of the Court ~f Common Pleas at Lancaster In Personal



THE Action of Ejectment is a Form of the Action of Trespass Qwtre Ckru-sum Fregit, extended to the situation where a trespasser
Actions and Ejectments (London 1837); Dorsey, Lectures Upon the Principles and Practice of the Action of Ejectment in Maryland (Annapolis 1841); Yeo and Billing, The Practice of the Plea Side 0f the Court of Exchequer, in Ireland, in Personal Actions and E3ectments (Dublin 184S); Longfield, A Trea­tise on the Action of Ejectment, in the Superior Courts, in Ireland, (2d ed. Dublin 1844); Adams, Treatise on the Principles and Practice of the Action of Ejectmeat (Ed. by Tillinghast, New York 1846); Dyett, The Law and Practice Relating to Summary Proceedings to Recover Possession of Lands in Cer­tain Cases (New York 1545); Cole, The Law and Practice in Ejectment (London 1557); Tyler, Eject­went and Adverse Enjoyment (Albany 1870); Tyler, S. Treatise on Remedy by Ejeetment (Albany 1876); Sedgwick and Wait, A Treatise on the Trial of Title to Land, Including Ejectment (2d ed., New York 1886); Newell, A Treatise on the Action of Eject­ment (Chicago 1802); Stephen, Principles of Plead­ing in Civil Actions, c. I, Ejectment, 53 (3d Am. ed. by Tyler, Washingto~i, D. C. 1593); 2 Pollock and Maitland, History of English Law, c. IV, The Term of Years, [and the Rights of the Terinor] 4, 105— 112 (Cambridge 1595); Warvelle, Ejoctment, A Treatise oa the Principles and Practices of the Ac­tion of Ejectmcnt and Statutory Substitutes (Olden-go 1905); Martin, Civil Procedure at Common Law, Art. 1, c. V, Ejectnient, §~ 165—171, p. 140 (St. Paul 1905); Martin, Civil Procedure at Common Law, Note IV, 359 (St. Paul 1905); Jenks, Short History of English Law, c. Xfl, Ejeetio Firznae, 173—178 (Boston 1913); Ames, Lectures on Legal History, Lecture XIX, Injuries to Realty, 223 (Cambridge 1913); Shipman, Handbook on Common Law Plead­ing, c. LW, Ejectment and the Real Actions, II 63— ‘75, pp. 170—191 (30 5. by Ballantine, St. Paul 1923); 2 Holdsworth, History of English Law, c. V. Eject­went, 581 (4th ed., Boston 1931); 3 Id. c. I, 214—217, 7 Id. c. I, 4; Patton, Land Titles (Kansas City

1938); Maitland, The Forms of Action, c. IT, Eject-went, 57 (Cambridge 1848); Plueknett, A Concise History of the Coninion Law, Bk. II, Pt. I, c. I, The Rise of Ejoctment, 354 (4th ed., London 1948); Mor­gan, The Study of Law, e. IT, Ejectment, 112 (2d cii. Chicago 1848); Walsh, A History of Anglo-Ameri­can Law, c. VIII, Development of Ejectnient from the Writ of Ejectio Firmae, § 76, 155—Ill (2d ed. In­dianapolis 1932).

Articles; Wire The Plea of Ius Tertil, in Ejectment, 41 L.Q.Rev. 139 (1925); Hutchins, Equitable Eject-went, 26 Col.L.Rev. 436 (1926); Pbilbrick. Seisin and Possession as the Basis of Legal Title, 24 Iowa L. 11ev. 268. 299, note (1939); flargreaves, Torminology and Title In Fljeetment, 56 L.Q.Rev. 376 (1940);

takes and keeps the land.2 At Common Law estates in land Were of two kinds—freehold and non-freehold estates. A freehold estate was a life estate or any estate above a life estate; a non-freehold estate was any estate Jess than a life estate. In legal theory, if the owner of a freehold estate was ousted from possession, he was, at the Common Law, af­forded a number of remedies in the Form of some one of the Ancient Real Actions,3 such, for example, as the Writ of Novel Disseisin, under which, if carefully selected and pa­tiently pursued, he might recover possession and establish his Right or Title The lessee of a term, or the holder of a non-freehold estate, however, if ousted, might recover only Damages for the wrongful ouster, but he could not regain possession of the land, nor could he, in that Form of Action, recover

Hohdsworth, Terminology and Title in Ejectrneot— A Reply, 56 L.Q.Rev. 479 (1940).

Comments: Ejectment—Law and Practice of, 20 Leg. Observer, 195, 259, 307, 471 (1840); Ejectroent for Encroachment on Land Above the Surface, 19 Flax-v. L.Rev. 369 (1906); Encroachment Below Ground or Well Above the Surface—Is Ejectment an Adequate Remedy? 27 Yale L.J. 265 (1918); Pleading—Prayer for Equitable Belief in Action of Ejectment, 36 Yale L.J. 279 (1926); May a Tenant Fiend an Acquired Title in a Suit by a Landlord2 15 CalitL.Rev. 510 (1927); Ejectment—Title in a Stranger, 28 Mich.L. Rev. 184 (1929); Effect of Failure to Plead Statute of Limitations as an Affirmative Defense tin an Ac­tion of Ejectmentj, 1949 Ill.L.Forum 170 (1949).

Annotations: Statutory Remedy of Forcible Entry anti Detainer as Exclusive Remedy of Occupant Dis­possessed Without Legal Process, 154 A.L.R. 181 (1945); Instructions in Ejectment on Rule that Plaintiff Must Recover on Strength of Own Title, 159 ALIt. 646 (1945); Remedy of Tenant Against Stranger Wrongfully Interfering with his Posses­sion, 12 A.L.R.24 1192, at 1197 (1950); Mandatory Injunction to Compel Removal of Encroachments by Adjoining Landowners, 28 A.L.B.2d 679 (1953).
2. CunnIngham v. Macon & B. R. R. Co., 100 U.S. 446,

3 S-Ct. 292, 609. 27 LEd. 992 (1853), in which Miller, 1, declared: “Ejeetment Is In its essentiat charac­ter an Action of Trespass, with the power in the Court to restore the possession to the plaintiff as part of the Judgment”

3. See Chapter 2, The Development of the Common Law Forms or Action, for an account of the Ancient Real Actions.


Sec. 106



Damages for Mesne Profits’—the subsequent rents and profits between the date of the original ouster and the date of the recovery of possession.
To provide an adequate remedy for the holder of a Non-freehold Estate, the Action known as Trespass for Ejectment was devel­oped. But at this point, it should be pointed out that this Newly Developed Remedy was available only to the holder of a Non-free­hold Estate, to wit, a tenant for years, who was regarded as having only a mere Chattel interest and not an interest in Real Estate; it was not available to vindicate the right of one who was asserting Title to a freehold in­terest in land. If the plaintiff desired to try Title to the land in question, he was still re­quired to invoke one of the Ancient Real Actions,5 which, as we have pointed out in an earlier chapter, were highly dilatory, ex­pensive and unduly technical.6

In the fifty to a hundred years after 1499, the year in which it was held that the tenant could recover the Term as well as Damages, this New Action of Trespass for Ejectment
& Keigwin, Cases in Common Law Pleading, c. II, The Common Law Actions, The Action of Ejectmcnt, 123 (2d ed., Rochester 1934).
~- These Actions, some sixty in number, arc discussed in Chapter 2, The Development of the Common Law Forms of Action.
& “The Common Law furnished an endless number of Real Writs to determine the rights of property in, or possession of, a freehold estate. The highest technical skill and learning were requisite to com­prehend and define the nature and purposes of these various writs, the distinctions between which were refined, abstruse and often scarcely perceptible. In Personal Actions, however, there were never many writs at Common Law. This very scarcity made personal actions attractive in early times, the plead­er being seldom at a loss to know which Writ to choose; while in Real Actions the most experienced practitioner, exercising the utmost care, frequently sued out a Real Writ of the wrong degree, class or nature, thereby rendering the proceeding of no avail, and frequently Imperilling the demandant’s right to the proper writ or remedy. Not only were the dis­tinctions between Real Writs very technical, and the selection of the proper writ a delicate task, but

became such an effective instrument for try­ing the Right of Possession which, in sub­stance, amounted to trying Title, that the landlords, who, in Legal Contemplation, al­ready had an Adequate Remedy, in the Form of the Real Actions,7 for the recovery of Pos­session, began to seek ways and means whereby the New Remedy—now known as Ejectment—and open only to the holders of non—freehold estates, might be made avail­able to the holders of freehold estates, with­out violating the Common-Law theory that the remedy was available solely for the use of non-freehold owners.

This end was to be accomplished by work­ing out a scheme whereby the Action of Tres­pass Quare Ejectione F’irmae—Trespass for Ejectment—could be adapted to the use of the owners of freehold estates without vio­lating the fundamental theory of the action

—that it was available only to the owners of non-freehold interests in land. And it was the ensuing effort which ushered on to the stage of procedural legal history the law’s most famous fiction—the Fictitious Proceed­ing in Ejectment—which did not reach full fruition except as an incident of passing through thrce stages of development: First, wherein there was no fiction whatever in­volved; second, where there was a resort to fiction, but wherein the steps upon which the fiction was grounded were actually true in

the proceedings under them were so inconveniently long, tedious and costly, and the resources for delay so numerous, that the Judgment when obtained was often a tardy and inadequate remedy.” Sedgwick and Wait, Principles and Practice Governing the Trial of Title to Land, c, I, ~ 2, p. 3 (New York, 1882).
7. The Common Law believed in an economy of rem­edies. Where the Law supplied a remedy to a given group of litigants, like the owners of freehold es­tates, they were generally limited to that remedy. When, therefore, the New Action of Trespass for Eiectment was created, there naturally followed a period of time during which the new remedy re­mained unavailable to the holders of freehold es­tates.



Cli. 10

(I) Where the Requisite Conditions to Support Trespass Quare Ejectione Firmae were Actual.—Where A, a freeholder, actu­ally leased I3lackacre to B, who took actual possession, and was thereafter disseised, B, the tenant, might bring an Action of Tres­pass for Ejectment. C, the disseisor, usually defended by asserting a Title paramount to that of A, the lessor. Thus, the merits of B’s Title under A, and C’s title, were brought into opposition and comparison, as an in­cident of B’s claim to a right of possession. The Judgment which followed necessarily determined who had the true Title. And by this process the landlord, through the suit of his tenant, B, against C, for inter­ference with B’s possession, in effect avoided the necessity of instituting a Real Action.9
(II) Where the Requisite Conditions to Support Trespass Quare Ejectione Firmae were Fictitious, but Grounded on True Facts,

—It was soon discovered that the same re­sult could be achieved by resort to a ficti­tious proceeding which, however, in the be­ginning, was based on a true state of facts, The scheme devised worked substantially as follows. The Landlord, 4 desiring to try Title to land not previously under lease, re­cruited two friends or collaborators, .4 and B, who then made an actual Entry upon the land, subsequently to be spoken of as the En­try, Such Entry was required in order to avoid being charged with the common-law crime known as maintenance,’0 or promoting

~ 4 Minor, Institutes of Common and Statute Law, Division 111, 390 (Richmond 1591—1895).
L See Keigwln, Cases In Common Law Pleading, e. II, The Common Law Actions, § 52, The Action 0f Ejeetment, note 6 (2d ed,, Rochester 1934).
19. “It Is a general rule, that no right of entry, or re-entry, can be reserved, or given to any other per­son, than the feeffer, donor or lessor, Ac, and their heirs; and suck rJght of entry cannot be assigned

lawsuits, as every lease of real estate by an owner not in possession was bound to result in some form of action. 4 A and B, now be­ing on the land in question, L, the real dis­seisor, then handed an actual lease of the premises to A, hereinafter to be known as the Lessee, and then instructed B, hereinaft­er to be known as the Casual Ejector, to eject A, the lessee, which he proceeded to do, all of which activity was unknown to the Actual Tenant of the premises, Z. Thereaft­er, A, the tenant selected by L, the landlord, instituted a suit against B, his disseisor, un­der the scheme. Thus, the official line-up became A, ex dem. (lessee of) l~, the land­lord, v. B, the Casual Ejector. As B put up no Defense, Judgment was entered for A, a Writ of Execution issued against Z, the actual tenant, and A was placed in posses­sion, after which he surrendered his lease to the landlord. The student should observe at this point that so far there has been no feigning of the facts. The plaintiff made a bona tide Entry into the land under dispute, thereafter on the land he executed an actual Lease to a real lessee, who immediately took possession, after which he was actually eject­ed, Thus, every element of the case was of actual occurrence.

And! thus, by this process, the landowner was able to try Title to the land in question, without violating the theory that the Action of Trespass for Ejectment was available only to the owner of a non-freehold estate, as A, the fictitious lessee, and the nominal plain­tiff (the landlord was the real plaintiff, al-.

fact; and third, where the the fiction were assumed to three situations will now be

facts supporting be true.8 These discussed:

or tra:nsferred to another ~Litt. f, 341]. This prin­ciple had its origin in the policy of the Ancient Law, to guard by all possible means against main­tenses, the subversion of justice, and the oppres­sion of the poor, by the rich and powerful. For if me’~ were allowed to grant before they obtain pos­session, as Lord Coke remarks, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed,” Stearns, A Summary of the Law and PractIce of Real Ac­tions, Introduction, § XII, 24 (Boston 1824).

Sec. 106



though not a party to the action) was, so far as the Record went, the holder of a non-free­hold or leasehold estate.
It is not surprising, therefore, to find that both Court and Counsel eagerly availed themselves of the loophole thus discovered by means of which questions concerning Ti­tles to land which ordinarily could be raised only in some one of the numerous and tech­nical Real Actions, might now be brought and determined in a purely Personal Action, with the same results of a Real Action achieved in a simple Action of Trespass, at least so far as possession was involved.1’ In referring to this very point, Sedgwick and Wait aptly declared: “The history of proce­dure nowhere presents a more curious fact than that the owners of the soil [freehold­ers] should have suddenly relinquished a system of remedies [the Ancient Real Ac­tions]; which had been matured by the ex­perience of centuries, and have consented to try Titles to the freehold in a Personal Ac­tion, originally devised to protect the precar­ious estates of the inferior tenantry.” 12
This rapid change in procedure, which be­gan in the reign of Henry VIII (1509—1547)

ultimately resulted in the obsolescence of the Real Actions, once it was realized that Eject­ment was an efficient instrument for trying the right of possession, and that, in the final analysis, no title could be tried without also trying possession. There was also the addi­tional advantage that Ejectment being a Per­sonal Action, might be instituted in either King’s Bench or Exchequer, whereas the old Real Actions for trying Title could only be brought in the Court of Common Pleas. And, as in Assumpsit and Trover, now also just coming into vogue, the pleading in Eject­ment was genera], with the result that there was small risk of a disastrous variance.

11. Sedgwick and Wait, Principles and Practices Gov­erning the Trial of Title to Lana, C. 1, 7, p. 5 (New York 1882).

(III) Where the Requisite Conditions to Support Trespass Quare Ejectione Fh’mae were all Assumed to be True, but were aU


(A) In GeneraL—After it was discovered that the New Action could be utilized by the freeholders through the use of the Entry, Lease and Ouster, along about the year 1640, or shortly after the close of Queen Elizabeth’s Reign (1558—1603), it finally be­came clear that it was a useless formality to make an actual Entry, Lease and Ouster, so the practice grew up that these steps might be eliminated by merely alleging a Fictitious Entry, Lease, and Ouster by the Casual Ejec­tor, This procedure was made workable by the fact that the Courts, eager to escape from the old Real Actions, overlooked the false­hood involved. As previously observed, the Casual Ejector did not defend, so that Judg­ment was given in favor of the Fictitious Lessee and plaintiff, who promptly sued out a Writ of Execution, under which the lessee was placed in possession, the actual tenant, Z, being dispossessed by the Sheriff.

(B) The Common Consent Rula—It is not difficult to imagine what Z, the Actual Tenant, who up to now had heard nothing of this suit, said when thus confronted with the Execution. And what he and other Z’s in a similar position said was expressed in such loud, raucous and determined tones that the Courts decided to do something about it What they did was to make a Rule of Court that no Execution should issue where the Ejector was a stranger, or not the Actual Tenant, until the adverse actual occupant— the Actual Tenant, Z—was notified of the pendency of the action, and offered an op­portunity, if he so desired, to appear and defend the action in place of the Casual Ejec­tor. This end was accomplished through the device of a note or letter from the Casual Ejector to the Actual Tenant, notifying him that he had been sued, and that if he desired to defend, he should appear and ask to be

12. Id. c. I, Page 6, § S (New York, 1882).



Ch. 10

substituted as the defendant in place of the Casual Ejector.

And it was at this moment, and as a sort of condition precedent to such substitution of the Actual Tenant, that the Actual Ten­ant was advised by the Court that he might be permitted to defend, if he agreed to enter into the Common Consent Rule, which in­volved an admission of the Entry, Lease and

Ouster, thus leaving the only remaining is­sue one of title, which was the objective of the fiction and which thus made available to the owner of a freehold estate a remedy which in legal theory was available only to the holder of a non-freehold estate. Now, the lineup of the parties reads as follows: A ex dem. (lessee) of L v. Z, the Actual Tenant. The whole process is set forth in the chart which appears below:



The Landlord

and ills Two


The Fictitious

and the

Casual Ejector . . B

Blackacre, the

Tract of Land,

Title to Which

is in Issue

b’y the Above Chart

FROM the Chart as set forth above the student may derive an understanding of how

take advantage of a remedy which, in legal Theory, was available only to the holder of a non-freehold estate, as previously ex­plained.

He may also clearly see the meaning of the phrase “the lessor of the plaintiff,” so often

Certa4n Aspects of Ejeetment as Explained

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