SECT. V.

Of Injuries to Landed Property.

THESE are by ABATEMENT, which is an entry on land, and holding it against the heir of the person who died last actually seised thereof, or against his devisee.

INTRUSION, which is an entry on it, and holding it against the remainder man or reversioner.

DISSEIZEN, which is forcibly turning the true owner out of it, who is seised of the freehold.*

IN abatement and intrusion the possession was racant, when the injury was committed. In disseizen it was not. The abatement ousted the freehold by law; the intrusion ousted it by deed, which may be of incorporeal hereditaments, as by disturbing the owner in coming to them, such as ways, rents, &c.; or by inclosure, so as he cannot distrain any thing thereon, either for rent or damage feasant; or by forestaller, as to lie in wait and prevent him, either by force or fear; or by rescous, as to retake the thing distrained; or by replevin, as to suspend a distress when rent is really due; or by denial, as the nonpayment of it on demand. These disseizens are at the election of the owners, the more easily to try the right, as it may also be of corporeal hereditaments, though they are not actually disseized, so as they may have a writ or an assize of novel disseizen, instead of the slower remedy of a writ of entry; but not against the disseizor, on whom mere personal entry was sufficient, and only against his heir, if he died seised of the land he had usurped; because he had only a naked possession, but his heir an apparent right to it. In abatement, intrusion, and disseizen, the entry is unlawful from the beginning, and the immediate remedy is personal, by entry on the land, or near it, yearly during his life. If he neglect it longer, it is not a continual claim, and his remedy is by action, of which more hereafter.

* A disseizen is actual when the disseizor has no right of entry; or it is by the election of the disseizee, for the sake of the short remedy by writ of assize. A disseizen by feoffment gave the feoffee an immediate freehold, and his wife a right to dower. If feoffee were a female, it gave her husband a right to curtesy, and a descent on the heir tolled the entry of the disseizee.

DISCONTINUANCE is, when a tenant in tail makes and conveys a larger estate than he is entitled to, which, at common law, he can only do for his own life; as, if he enfeoff another person in fee simple, which is good while he lives; but after his death, and so long as the estate is retained from his issue in tail, it is a discontinuance or suspension of it. The alienation of a husband seised of land in right of his wife, discontinued her estate at common law, until the statute of the 32 H. 8. c. 28., whereby she or her heirs, on his death, shall enter thereon. So, when a disseizor has lost his right of personal entry on land, which he can only recover by action, the title to it is discontinued.

DEFORCEMENT is, where the original entry of the tenant was lawful, but his detaining possession of the land afterwards was the contrary; such as his holding what another person has a right to, but keeps him out of it. This includes the four preceding injuries; with this difference, that it is a detainer from the person who has a right to the property, but never had possession; as, if land fall to the lord for want of heirs to the person last actually seised of it, and possession is denied him. It is not an abatement, for the lord is neither heir nor devisee; nor intrusion, for he is neither remainder man nor reversioner; nor disseizen, for he never was in possession; nor discontinuance, for he did not enlarge the estate; it is therefore deforcement. So, to withhold dower from a widow, or to hold over a term from a remainder man, or a reversioner, is deforcement; as it is when a woman gives a man land on condition he marry her, which he afterwards refuses to do, but detains the land; or, when an infant aliens land to a person who enters, but detains possession from him when of age; or, when an insane person aliens land to another, who enters, and detains it from him after he has recovered; or, when land descends on two sisters as co-heiresses, and one enters on it, but keeps the other out; or, the non-performance of a covenant real, by one person to convey land to another; but keeping possession in defiance of it. A conuzor in a fine, who has broken it with a conuzee, is a deforciant. So is he who keeps a person out of a freehold office, or whatever else is not within the four kinds of injuries, previously explained, to landed property, of abatement, intrusion, disseizen, and disconti

nuance.

D

SECT. VI.

Of Remedies for Injuries to Landed Property.

FOR abatement, intrusion, and disseizen, the remedy is by mere personal entry on the land, which must not be forcible; and if prevented, claim must be made of it as near to it as possible, which will be in force for one year; and when yearly repeated, it is called continual claim, which gives such an actual seizen thereof, that it will descend on the claimant's heirs, or he may sell or devise it: but when this personal entry is tolled, or taken away, by a descent onthe heir of the wrong doer, possession can only be recovered by action; because an heir comes in by operation of law, but no right of his own, and the rightful claimant neglected to enter on the death of his ancestor. In abatement the original entry of the wrong doer was unlawful, as premised, and could be defeated by personal entry and continual claim; but a discontinuance and deforcement, where the original entry was lawful, could only be defeated by action. A tenant at sufferance or will, may be ousted by the mere entrance of the owner; who, by supposing him to have gained a tortious freehold, might have a writ of entry ad terminum qui preterit, for holding beyond his term, as a lessor against a lessee for life or years, and for or against the heirs of either.

Independently of the remedies by the act of the parties, such as self-defence, recaption, abatement of nuisances, distraining of cattle damage feasant, doing mischief, or for heriots, which the law permits from necessity, the remedies by the act of law are by RETAINER, as by an executor or administrator, in paying himself a debt due to him from the testator or intestate; and also REMITTER, as when a person has the true property of land without the possession, and has the freehold cast upon him by some defective title, the law remits him to his good one, whereby the right of entry he gained by the former is joined to the latter. Under his imperfect title he might be evicted by writ of entry, because he could not shew his right of property in a possessory action; and therefore he was remitted to his prior title, as if he had recovered under it by law, which he could not do by bringing an action against himself. For example: if A. is disseized by B., who dies, and a descent is cast upon his heir, A. cannot evict him but by an action: and if B. leases the land to

C. for life, remainder to A. for life, and then C. dies, the remainder accrues to A. for life; but being imperfect, as derived from the heir of a disseizor, he is remitted to the estate of which he was disseized, when his new right of possession is joined to his old right of property. Without remitter, he had jus, a right, but not seizinam, possession; but with it, juris et seizina conjunctionem, a right of possession and of property also, which form a complete title to land: thus, A. had the right of property in the land, and B. unlawfully gained possession of it, which was bare and naked. A. had a remedy against B., and having a right to both property and possession, defeated B. by entry; but if B. had died seised, his heir had gained an apparent, instead of a bare and naked right to it. By the statute 32 H. S. c. 33. if any one disseized another, no descent on the heir shall toll, take away, the entry of the person disseized, unless he had quiet possession five years after the disseizen: and by the 21 Jac. 1. c. 16. no entry on land shall be made, unless in twenty years after the right accrued; and by the 4 & 5 Ann. c. 16., no entry shall satisfy the statute of Jac. 1., or avoid a fine, unless an action be brought in one year after such entry is made. So that after a descent cast, and five years peaceable possession, mere entry is insufficient, and an action must be brought by writ of entry or assise, which is possessory, and disproves the tenant's right. It directs the sheriff of the county where the land lies, to command the tenant that he render it to the demandant, which he claims as his right, into which, as he saith, the tenant had no right, but by per, or after, post the disseizen of the demandant, within the time limited by law; or that, on his refusal, he appear in court on a day certain, and shew why or wherefore, &c. An entry on, or detainer of land, must be peaceable, and without force. By the statute 8 H. 6. c. 9. one or more justices shall try it by a jury, and on force found shall restore the possession, with treble damages, and fine the delinquent for breaking the peace; but not after he had quiet possession for three years, which is enforced by the 31 Eliz. c. 11. Formerly there were degrees of entry. If the writ were brought against the wrong doer, it charged him, as hath been said, with having nothing but by means of the trespass he had committed, non habuit ingressum nisi PER intrusionem quam ipse facit. If against his heir, or alienee, it was so stated. One descent or alienation made the first degree in the per, meaning that the tenant had no right but by the wrong doer from whom it descended on him, or by whom it was alienated, non habuit ingressum

nisi PER A. qui se in illud intrusit et illud tenementi demisit. A second descent or alienation made another degree in the per et cui, that the tenant had no entry but by a prior alienee, who demised to him, non habuit ingressum nisi per A. cui B. illud et demisit et qui se illud intrusit. If there were more than two degrees of descent or alienation, no writ of entry lay, but a demandant was put to his mere right of property, until the statute 52 H. 3. c. 30., whereby, if the number of descents or alienations exceeded the usual degrees, a writ was provided without naming any, called in law French en le post, in the post, that the tenant had no entry unless after the ouster of the original disseizor, non habuit ingressum nisi POST intrusionem quam A. in illud fecit; and on this writ of entry in the post are grounded our common recoveries, as heretofore explained. Before the conquest, writs of entry were brought in the county court, where the pleadings were short, and soon determined; but after, when suits were brought in the king's courts, and process only issued from term to term, which was dilatory, the remedy by assize was substituted under H. 2. to determine rights of possession, before justices in eyre, or on a circuit, in the proper counties; which is called, in the statute of Westm. 2. 13 Ed. 1. c. 25. festinam comedium, a quick remedy, by novel disseizen, or writ of mort d'auncestor, a new or recent disseizen, or the death of an ancestor. Writs of entry were to prove that the tenant's original possession was unlawful; but writs of assize were to prove the demandant's title to it; which once done by either, the possession could never be disturbed by the same parties. The assize is for abatement and novel disseizen. If the abatement were on the death of a demandant's father or mother, brother or sister, uncle or aunt, nephew or neice, the assize was of mort d'auncestor, which directed the sheriff to summon a jury, called the assize, assideo, persons sitting together, to view the land, and recognize whether the ancestor died seised thereof, and the demandant be his heir; which, if found, the judges coming soon after into the county, gave him possession.* If the abatement happened on the death of a grandfather or grandmother, the writ of ayle or de avo laid: if of a great-grandfather or great-grandmother, the writ was of besayle pro avo; and if of a grandfather's grandfather, or of any collateral relation, other than those mentioned, a writ of cosinage consanguinity laid, as amounting to the tresayle. All ancestral writs allege a title in the demandant; writs of assize pray that an

* At common law, tenants in tail issued writs of mort d'auncestor against the alienees of their ancestors; but after the statute de donis, the writ of formedon was given them.