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THE LAW OF EJECTMENT AND ADVERSE

ENJOYMENT.

PART I.

OF THE ACTION OF EJECTMENT.

CHAPTER I.

THE ORIGIN,

REAL ACTIONS USUALLY CALLED ACTIONS OF EJECTMENT
HISTORY, NATURE AND OBJECT OF THE ACTION OF EJECTMENT.

By the modern practice of the courts, both in this country and in England, questions of title to real property are, for the most part, decided by the action of ejectment. Strictly speaking, the action of ejectment is brought for the recovery of the possession of real estate; but the action is now more generally used, both in England and in the United States, for the trial of title to lands; and it may be useful to inquire briefly into the origin, history, nature and objects of the action, which has usurped the place of all the ancient remedies for the recovery of real property.

The term "ejectment" is derived from the Latin word ejectio—"a casting out," or from the term ejectione firmae -"ejection, ejectment of farm;" or from the term quare ejecit infra terminum — "wherefore (or why) did he eject within the term?" and an ejectment has been defined to be "a personal action, founded on a possessory right, by which a lessee for years, when ousted, shall recover his term and damages." It is a possessory remedy, and only competent when the lessor of the plaintiff may enter; and originally, the remedy by ejectment was an action brought by a lessee of lands for years, to repair the injury done him by dispos

session. But the action has been so moulded to the condition of the times, as to retain but few traces of resemblance to the parent remedy, or scarcely any thing of its original form and uses. The benefits of the action were extended long since, not only to cases for the recovery of land from which a tenent has been unlawfully ejected, but to cases for the trial of possessory titles to real estate, and the determination of the right to the freehold itself.

The writ upon which the action of ejectment was founded was invented between the years 1327 and 1377, during the reign of Edward III, King of England, when it was a mere action of trespass to enable a lessee to recover damages of the party who had ousted him of his possession. Very soon, however, a new species of remedy, not warranted by the original writ, was introduced into the proceedings, for the purpose of enabling the plaintiff to recover the term, and have a writ of possession thereupon, and the action was applied to its present principal use, that of trying the title to the land. It is difficult to ascertain the precise period when this alteration in the action took place, although it is supposed to have occurred about the year 1455. From this time a new efficacy was given to the action, the old actions relating to real estate fell into disuse, and the action of ejectment became gradually the regular mode of proceeding for the trial of possessory titles. There seems to be no report of the case in which the experiment was first made to settle a disputed title of freehold by the judgment of the court in the action of ejectment; but we find that the experiment succeeded, and the use of the action, as well as its nature, became changed.

For several centuries after this important alteration in the action of ejectment was made, in order to maintain the action it was incumbent on the plaintiff, in case of any defense, to make out four points; title, lease, entry, and ouster. First, he must show a good title in his lessor, which brought the matter of right entirely before the court; then, that the lessor, being seised or possessed by virtue of such title, made him the lease for the term; thirdly, that he, the lessee or plaintiff, entered or took possession in consequence of such lease; and then, lastly, that the defendant ousted or ejected him, whereupon he was entitled to judgment to recover his term and damages, and a writ of possession, which the sheriff executed by delivering to the plaintiff the undisturbed and peaceable possession of his term. This was the regular method of

bringing the action of ejectment, in which the title of the lessor came collaterally and incidentally before the court, in order to show the injury done to the lessee by this ouster. But, as much trouble and formality attended the actual making of the lease, entry and ouster, a new and more easy method of trying titles by writ of ejectment, when there was an actual tenant or occupant of the premises in dispute, was invented by the Lord Chief Justice Rolle, who sat in the court of upper bench in the time of the protectorate, about the year 1656, which depended entirely upon a string of legal fictions, and by which all these forms of a lease, entry and ouster, were dispensed with, and regarded merely ideal for the sole purpose of trying the title. The parties to the action, plaintiff and defendant, were fictitious, and all of the preliminaries which the ancient practice required were feigned. Those who have the curiosity to look into the learning upon the subject of the fictions resorted to for the purpose of overcoming the innumerable difficulties which attended real actions a few centuries ago, can gratify their wishes by consulting 3 Blackstone's Commentaries on the Laws of England, pages 200 to 207, inclusive, where a very concise, clear and satisfactory history of the ancient remedy by ejectment may be found. The system adopted by Lord Chief Justice Rolle possessed many and obvious advantages over any previous one. By it the claimant was exempted from the observance of useless forms, and the tenant was required to admit nothing which could prejudice the merits of the case. Of course it was not found to be entirely free from defects, and the courts were sometimes confused between the ancient and more modern systems. But as the principles of the action became clearly understood, and the practice reduced to a regular and settled system, the remedy by ejectment was found to be well adapted to the purposes of substantial justice, and a simple and most useful legal proceeding. As the action was thus perfected and matured, it was introduced and adopted in this country, and the remedy still continues to exist in some form in all of the states of the Union. In most of the states all the old fictions have been abolished, and many of the deficiencies of the action have been corrected by legislation. The courts everywhere regard the leading features of the action with great favor and liberality, and it is altogether probable that, whatever changes may be adopted in practice, the distinctive principles governing the action will always be recog

nized and observed in the jurisprudence of all the American States. The object of the action is to obtain the possession of land, so that the remedy by ejectment is confined to cases in which the claimant has a possessory title, or a right of entry upon the lands. Whenever, by reason of the intervention of any of the ancient rules regarding real property, the possessory right was turned into a right of action, the right of entry ceasing therewith, the entry of the claimant became illegal, and consequently not sufficient to enable him to convey a title to his lessee, the nominal plaintiff in the action, and hence the action could not be sustained. This was the old rule respecting ejectment, and as the principles of the action have remained unchanged since the time of Lord Chief Justice Rolle, although the character of its proceeding has been altered, the right to make an entry on the land has continued to be requisite, notwithstanding the entry itself has ceased to be necessary. Of course, ejectment will not lie by a party already in possession of the lands, and it is equally well settled that, without a right of entry, the plaintiff cannot recover in an action of ejectment. The party must, in all cases, have a subsisting title or interest in the premises, and a present right of entry thereupon, in order that he may be in a situation to make the remedy by ejectment available and appropriate. In a word, the object of the action is to put a party entitled thereto into possession of lands from which he is wrongfully restrained; and no person can recover in ejectment unless he has, at the time of commencing the action, a valid, subsisting interest in the premises claimed, and a right to recover the same, or the possession thereof or of some share, interest or portion thereof to be established at the trial.

Ejectment is regarded by some authors as a personal action, as it certainly originally was; by others it is considered as a species of mixed action; but by the better authority it is classed with real actions, and this arrangement is more in accordance with the nature and objects of the action.