« PreviousContinue »
vitium quatuor denariorum per annum pro omni servitio : et pro hac concessione et testificatione et quieta clamantia praefatus Prior et Fratres Hospitalis dederunt ipsi Wilhelmo et Alano centum solidos sterlingorum.
C. 3. . . . Et nota quod dicitur talis concordia finalis eo quod finem imponit negotio, adeo ut neuter litigantium ab ea del caetero poterit recedere. Alterutro enim non tenente vel non faciente quod convenit, et altera partium inde se conquerente; praecipietur vicecomiti quod ponat eum per salvos plegios quod sit coram justiciis domini regis inde responsurus quare finem illum non tenuerit.
$ 9. Modes of recovering Seisin of Lands. Assizes of
Mort d'Ancestor and of Novel Disseisin.
A sketch of the history of the law of real property would not be complete without some notice of the remedies available for the ouster or dispossession of the freehold. The extracts given above (§ 2) are sufficient to show the nature of the supreme and final remedy by which a tenant in fee simple could assert his right, namely, by writ of right commenced either in the Curia Regis or the territorial court. The extreme complexity of the proceedings in the writ of right caused the adoption of other remedies, by which nothing was decided as to the question of the right of property, but merely that the one party had a right as against the other to the actual seisin or possession of the lands.
By seisin is meant, as has already been pointed out, possession as of freehold, that is the possession which a freeholder could assert and maintain by appeal to law. There was in fact no other kind of legal possession known at this early time. In ! later times the word seisin comes to be distinct from possession, the latter being applicable to the possession of a leaseholder or copyholder, the former being confined to the possession of a freeholder. It should however be observed that it was by no means necessary for a person to be seised as of right. There was a seisin
as of right, and a seisin as of wrong. If the rightful freeholder was ousted and in fact lost his possession, he was disseised or put out of seisin, and the wrongdoer or disseisor was seised in his place, holding by wrong the estate from which he had ousted the rightful possessor. He had in fact a “defeasible title 1,' and for many purposes acts done by him held good as if he had been rightfully seised. A person so seised by wrong was of course liable to be turned out by the rightful owner either by actual entry upon him, or by process of law. A complicated system of rules grew up as to the circumstances and conditions under which this right of actual entry existed, when it ceased, and when the only remedy was by calling in aid the action of the tribunals. The refinements arising on this part of the law it will not be necessary to discuss.
In the great majority of cases when litigation arose as to the right to land, it would be sufficient to decide which of the two litigants had the right of immediate actual possession ; or rather, whether the plaintiff could make out a right to the possession as against the person actually in possession. It was comparatively seldom necessary to have recourse to the higher remedy of a writ of right in order to decide which of the two had the greater right to the land. These possessory actions, as the former class were called, must be brought within a fixed period, and different limits were from time to time assigned ?.
The writ of assize of Mort d'Ancestor was perhaps : instituted
i Coke upon Littleton, 58 b.
? See as to different periods of limitation, Hale’s History of the Common Law, p. 122.
3 Cap. 4. •Item si quis obierit francus-tenens, haeredes ipsius remaneant in tali saisina qualem pater suus habuit die qua fuit vivus et mortuus, de feodo suo; et catalla sua habeant unde faciant devisam defuncti: et dominum suum postea requirant, et ei faciant de relevio et aliis quae ei facere debent de feodo suo. Et si haeres fuerit infra aetatem, dominus feodi recipiat homagium suum et habeat in custodia illum quamdiu debuerit. Alii domini, si plures fuerint, homagium ejus recipiant, et ipse faciat eis quod facere debuerit. Et uxor defuncti habeat dotem suam et partem de catallis ejus quae eam contingit. Et si dominus feodi negat haeredibus defuncti saisinam ejusdem defuncti quam exigunt, justitiae domini regis faciant inde fieri recognitionem per duodecim legales homines, qualem saisinam defunctus inde habuit die qua fuit vivus et mortuus ; et sicut recognitum fuerit, ita haeredibus ejus restituant. Et si quis contra hoc fecerit et inde attaintus fuerit, remaneat in misericordia regis.' (Stubbs' Select Charters, p. 144.)
by the ordinance called the Assize of Northampton, A.D. 1976, and was applicable only to the particular case where, upon the death of the demandant's father or mother, brother or sister, uncle or aunt, nephew or piece, some person other than the lawful heir had entered upon the land. If the demandant could prove that the ancestor died seised “in his demesne as of fee,' and that he (the demandant) was the right heir, the result of the decision of these points in his favour would be the establishment of the right of the demandant to the possession as against the tenant. Similar writs, varied in form to suit the circumstances, and called by different names, were used for the recovery of the possession by a person claiming as heir of a more distant relation. It will be seen from the form of the writ that this proceeding would not be applicable when lands had been devised by will, and therefore after the statutes conferring the power of devising lands by will this remedy was no longer available 1
The Assize of novel disseisin ? was applicable where the demandant himself had been turned out of possession. The material points necessary for him to establish appear from the following writs. If successful, the demandant would in this proceeding recover his possession, and also damages for the injury sustained.
This was the usual remedy for the recovery of the possession of lands. In certain cases which need not be here specified, it was necessary to resort to the writ of right. But as a rule all practical purposes were attained by means of one of the forms of action adapted to trying the right of possession.
1 See Blackstone, iii. p. 187.
9 This is also referred to in the Assize of Northampton, cap. 5: Item justitiae domini regis faciant fieri recognitionem de dissaisinis factis super assisarn, a tempore quo dominus rex venit in Angliam proximo post pacem factam inter ipsum et regem filium suum.' (Stubbs, Select Charters, p. 145.)
3 See Blackstone's account of the Assize of Novel Disseisin, iii. p. 187.
The remedy by the assizes of mort d'ancestor and novel disseisin was only applicable in particular cases. The remedy for the recovery of possession, applicable to all cases, whether falling under the two classes just mentioned or not, was the writ of entry. The law on this subject (now obsolete) is of far too intricate and complicated a character to be discussed here? The remedy by assize was preferred when applicable, as being more expeditious ?. In later times both the older proprietary and possessorý remedies, or real actions as they were called, were superseded by the action of ejectment, the history of which is noticed below 3. After having long fallen into disuse, these real actions were abolished by 3 and 4 Will. IV, c. 27, sec. 36.
Lib. xiii. c. 1. Generalia quae circa praemissa placita de recto frequentius in curia contingunt hactenus in parte sunt expedita. Nunc vero ea quae super seisinis solummodo usitata sunt restant prosequenda : quae quia ex beneficio constitutionis regni + quae Assisa nominatur in majori parte transigi solent per recognitionem, de diversis recognitionibus restat tractandum.
C. 2. Est autem quaedam recognitio quae vocatur de morte antecessoris. . ... Cum quis itaque moritur seisitus de aliquo libero tenemento, ita quod inde fuerit seisitus in dominico suo sicut de feodo suo 5, haeres eandem seisinam antecessoris sui recte petere potest, et si major fuerit habebit tale breve :
1 See Blackstone's sketch of the Writ of Entry, iii. p. 180, &c.
4 This probably refers to the ordinance mentioned in Glanvill, ii. 7 (see above, $ 2), which introduced the practice of referring the decision on a writ of right to the oaths of twelve men properly chosen, instead of deciding it by battle. This mode of trial per recognitionem seems by the same ordinance to have been extended to questions of possession. From the practice of trial per recognitionem arose trial by jury in civil cases.
6.In his demesne as of fee;' the proper technical expression for an estate of fee simple in possession.
C. 3. Rex Vicecomiti salutem. Si G. filius T. fecerit te se curum de clamore suo prosequendo, tunc summone per bonos summonitores duodecim liberos et legales homines de vicineto de illa villa, quod sint coram me vel justiciis meis ea die parati sacramento recognoscere", si T. pater praedicti G. fuit seisitus in dominico suo sicut de feodo suo de una virgata terrae in illa villa die qua obiit; si obiit post primam coronationem meam, et si ille G. propinquior haeres ejus est, et interim terram illam videant, et nomina eorum imbreviari facias, et summone per bonos summonitores R. qui terram illam tenet, quod tunc sit ibi auditurus illam recognitionem. Et habeas ibi summonitores etc.
C. 32. Postremo de illa recognitione quae appellatur de nova disseisina restat dicendum. Cum quis itaque infra assisam domini regis, id est infra tempus a domino rege de consilio procerum ad hoc constitutum?, quod quandoque majus quandoque minus censetur, alium injuste et sine judicio disseisiverit de libero tenemento suo, disseisito hujus constitutionis beneficio subvenitur, et tale breve habebit :
C. 33. Rex Vicecomiti salutem. Questus est mihi N. quod R. injuste et sine judicio disseisivit eum de libero tenemento suo in illa villa, post ultimam transfretationem meam in Normaniam. Et ideo tibi praecipio quod si praefatus N. fecerit te securum de clamore suo prosequendo, tunc facias tenementum illud reseisiri de catallis quae in eo captae fuerunt, et ipsum cum catallis esse facias in pace usque ad clausum Paschae, et interim facias duodecim liberos et legales homines de vicineto videre terram illam et nomina eorum imbreviari facias : et summone illos per bonos summonitores quod tunc sint coram me vel justiciis meis parati inde facere recognitionem. Et pone per vadium et salvos plegios praedictum R. vel ballivum suum, si ipse non fuerit inventus, quod tunc sit ibi auditurus illam recognitionem.
C. 34. Brevia autem de nova disseisina diversis modis variantur secundum diversitatem tenementorum in quibus fuerint
1 The jury consist of neighbours who are assumed to know themselves or to have heard from others the true facts of the case and to be prepared to state them truly upon their oaths. The notion that the jury are to hear evidence and give the verdict in accordance with the evidence is of later, growth. 3 See above, p. 96.