CHAP. IV. RIES TO REAL The civil injuries to real property corporeal are such as II. & III. INJU- affect the possession or right of possession, or a right in remainder or reversion. The former are, 1st. Ousters, which include not only actual evictions or turnings out of possession, but also every wrongful withholding of possession; 2dly. Injuries to the possession by trespasses or incumbrances upon the land, and which may be as well by acts done as by omissions, as by neglecting to remove tithe, &c.; or by nuisances near to the same, as the obstruction of ancient lights, not removing nuisances, and not repairing fences. The latter include all the above injuries, when they are of such a nature as to affect the future right of enjoyment, whether in remainder or reversion, and also include waste and breaches of covenant affecting the future enjoyment of the property. FIRST. OUST ERS, and remedies for the same. (r) Ouster defined. (r) The civil injuries affecting real property incorporeal are principally by disturbances, as injuries to rights of common of pasture, or common of fishery, or ways, or watercourses, or rights to tithes, or advowson, or franchise, &c., or by subtraction, as withholding rents or services, &c. For most of these injuries there are three descriptions of remedies, viz. the preventive, the compensatory, or those for some degree of punishment, where the injury has been wilful and malicious. First. OUSTERS are either by actually turning out, or by keeping excluded, the party entitled to possession of any real property corporeal. An ouster can properly be only from real property corporeal, and it cannot be committed of anything moveable, (s) nor is a mere temporary trespass considered an ouster. (t) However, turning or keeping off cattle, or any other (r) Ouster is the technical term still used in the declaration and action of ejectment, to describe an eviction or turning out of a farm or chattel interest, as a term for years in real property. Disclaimer, by a tenant's refusing to pay, or otherwise absolutely denying his landlord's title, is also equivalent to an ouster, 2 Schol. & Lefroy, 624, 625, ante, 287. Disseisin is the technical description of an eviction by a stranger from the freehold, and an ouster of the rightful tenant of the freehold from the possession, and an usurpation of the freehold tenure, 12 East, 141 Doe v. Hull, 2 Dowl. & R. 38, 604; Jerritt v. Weare, 3 Price's R. 575; but a lease by a stranger, and entry by the lessee, is not a disseisin in fact, without an entry by force, or an avowed intention to disse ise, Jerritt v. Weare, 3 Price's R. 575; Doe v. Hull, 2 Dowl. & R. 38; and Discontinuance describes the eviction of a tenant in tail, Doe dem. Jones v. Jones, 1 Bar. & Cres. 238; 2 Dowl. & R. 372, S. C.; Burton v. Hussey, 1 Hen. Bla. 269; Doe v. Horde, Cowp. 702. Descent Cast, is where the death of the party, who made the disseisin and descent of the estate of his heir, takes away the right of entry of the true owner and compels him to resort to a real action. It is scarcely possible now to suggest a case in which the doctrine of descent cast can be so applied as to prevent a claimant from maintaining an action of ejectment, 2 Dowl. & R. 41; Adams's Ej. 2 ed. 41, note (e); 2 Bla. Com. 176, note 10; and see further 3 Tho. Co. Lit. 1. (s) Doe v. Cowley, 1 Car. & P. 123; ante, 148 note (r). Ejectment for the tithe of a parish is an exception by 32 Hen. 8, c. 7, ante, 218. (t) Ante, 374, n. (s); 7 Term Rep. 327; 1 Bos. & P. 573. CHAP. IV. RIES TO REAL continuing act of exclusion from the enjoyment, constitutes an ouster, even by one tenant in common of his co-tenant; (u) and II. & III. INJUalthough, in general, as each tenant in common has a right to enjoy the whole and every part of the joint property, the possession of one is deemed the possession of the other, so as not to constitute an ouster, or enable one to recover in ejectment against the other, and he must therefore, in an action of ejectment, prove some act equivalent to an actual eviction; (r) yet if one has for many years (as 35 years) exclusively received the whole rents, or had exclusive possession without accounting to his companion, a jury may présume an actual ouster. (y) resistance. re-entry. There appear to be no less than twelve remedies for 1. Remedy by wrongful ousters or withholding possession of real property. Although the usual remedy for an ouster is an action of ejectment, yet it is clearly established that the party injured may not only prevent the completion of the act by resisting the attempt to evict, and this even by forcible means, (z) (provided a dangerous weapon be not used, (a)) but after he has been 2. Remedy by turned out he may legally at any time retake and keep possession of land, or even of a messuage, provided he can do so by stratagem or even by force, (not amounting to a forcible entry, nor occasioning a breach of the peace, (b)) and therefore many actions of ejectment are unnecessarily resorted to when without personal conflict possession might have been regained. (c) But the safer course may in many cases be to proceed by action of ejectment, a judgment in which would tend to establish the title and probably prevent future interruption. In the mean- 3. Remedy time, supposing that reasonable ground for apprehending waste speedy by injunction in or other material injury will be committed before any execu- Court of Equity. tion in ejectment can be obtained, then a Court of Equity will in some cases immediately interfere, and prevent such injury by injunction. (d) In cases of forcible entries and ousters and (u) Co. Lit. 199, b, 200. a, where see several instances of ouster. (1) Id. ibid; 7 Mod. 39; ante, 271. But if the consent rule be general instead of special (avoiding any admission of an ouster as it should be) then the production of the consent rule will avoid the necessity of proof of actual eviction, Doe v. Cuff, 1 Camp. 173, ante 271. (y) Doe v. Prosser, 1 Cowp. 217; 13 East, 212; but proof that one tenaut levied a fine and received the whole rent for nearly five years is not (against the justice of the case) sufficient to find an ouster at the time the fine was levied, Peaceable v. Read, 1 East's Rep. 568. (z) 1 East's P. C. 271, 277, 287; 7 Bing. 305; Skin. 387. (a) Id. ibid.; 1 Hale's P. C. 445; Cook's Case, Cro. Car. 537; and see post, ch. vii. (b) Because obtaining possession by such violent means would be indictable, 7 T. R. 432; 8 T. R. 357. (c) Turner v. Meymott, 1 Bing. 158; 7 Moore, 574, S. C.; Wildbore v. Rainforth, 8 B. & Cres. 4; 3 Bing. 11, post, ch. vii. (d) See the proceedings in the case Ex parte Clegg, MS., post, ch. viii. In that case, where a party wrongfully withholding possession had committed waste RIES TO REAL CHAP. IV. forcible detainers, justices of the peace also have the power of II. & III. IN JU- immediately restoring possession, (e) but they are reluctant to act, and rarely can be persuaded to do so, though they might in a clear case be compelled to proceed by mandamus from the Court of King's Bench. (f) PROPERTY. 4. Remedy by justices giving possession in case of forcible entry. 5. Remedy summarily by justices giving possession where half year's rent in arrear, and no distress, and premises deserted or uncultivated. 6. Remedy, double valuc for holding over notice. As between landlord and tenant, when the latter owes halfa-year's rent, and holds under any demise or agreement, whether written or verbal, (although there be not any power of re-entry reserved,) has deserted the premises and left the same uncultivated or unoccupied, so as no sufficient distress can be had to countervail the arrear of rent, two justices of the peace are, at the request of the landlord, to go to the premises and affix a notice on the premises of the day they will return, allowing at least fourteen days, and if upon such return the tenant do not pay the arrear, or there shall not be sufficient distress, then the justices are to put the landlord in possession, and the tenancy is thenceforth to cease.(g) In favour of landlords, if a tenant for life or years, or person holding under him, shall wilfully hold over after the expiration after landlord's of a notice in writing, given by the landlord, and after demand of possession, the 4 Geo. 2, c. 28, as a compensation for such ouster or withholding possession, subjects the tenant to pay double the yearly value for so long a time as the same are detained. (h) A weekly tenant is not within the act; (i) and as the term "wilfully" has been adopted, it has been considered that a person holding over after the death of a tenant for life, upon a bona fide supposition that a lease granted by him continued valid, when in the result it was void, was not liable to the penalty of double value.(k) The landlord's notice must have been in writing, (7) and it must have been a valid notice, or at least accepted as valid by the tenant. (m) A demand of posses & Cres. 649, 5 Dowl. & R. 558, S. C.; Burn's J. tit. Distress, XVII.; and Chit. Col. Stat. tit. Landlord and Tenant, 673, 677, 678. (h) 4 Geo. 2, c. 28, s. 1; Chit. Col. Stat. and notes, 666. (i) Lloyd v. Roshee, 2 Camp. 453; but see Co. Lit. 54, b.; ante, 256. (k) Wright v. Smith, 5 Esp. Rep. 203; and see Soulsby v. Irving, 9 East, 313. (1) Trimmins v. Rawlinson, 3 Burr. 1607. (m) Johnson v. Huddleston, 4 Bar. & Cres. 922; 7 Dqwl. & R. 411. CHAP. IV. RIES TO REAL sion is essential, but it has been held that it may be made even before the right of possession accrued, and even that the service II. & III. INJUof the written notice to quit will of itself constitute a sufficient demand, (n) and if made even six weeks after the expiration of the tenancy it suffices, unless there has been a binding assent of the landlord to the continuing in possession. (o) The statute gives an action of debt, and as double value is recoverable, the amount of which is uncertain till fixed by a jury, the landlord cannot distrain.(p) notice. A subsequent act provides that if a tenant give a notice to 7. Remedy, quit and do not quit accordingly, he shall thenceforth pay double double rent for holding over rent, to be levied, sued for, and recovered at the same times after tenant's and in the same manner as the single rent, and such double rent shall continue to be paid during all the time that such tenant shall continue in possession. (g) But the holding over does not strictly continue the former or constitute a new tenancy, and therefore it has been held that if a tenant, after having given notice to quit, hold over for a year, paying double rent, he may quit at the end of such year without fresh notice, and is liable to pay double rent only whilst he withholds the possession. (r) The statute only applies when the tenant has the power of determining his tenancy by a notice, and has given a valid notice, or at least when the landlord has assented to accept an insufficient notice. (s) But the penalty being double rent it may be distrained for the same as single rent. (t) indictment for &c. The statutes against forcible entries and detainers, just alluded 8. Remedy, to, besides giving the power to justices immediately to restore restitution, on possession and inflicting criminal punishments upon the offenders, forcible entry, also give a civil remedy to the party evicted; when a freeholder, by action of trespass for treble damages and treble costs; (u) and the proceedings upon an indictment upon the statute for a forcible entry operates as a civil remedy, for a part of the judgment Adolp. 904. (s) Johnson v. Huddleston, 4 B. & Cres. (u) 8 Hen. 6, c. 9; Co. Ent. 46, n. (a); II. & III. INJU- CHAP. IV. is an award of and writ of restitution, unless the offender has been in possession more than three years, (x) for which reason a party interested in the possession of the estate is not a competent witness in support of the prosecution. (y) The statute 21 Jac. 1, c. 15, extends the writ of restitution to tenants for years and copyholders, and tenants by elegit ousted by the lessor or the lord or others. (2) 9. Remedy, summary possession where paupers retain possession. When a pauper or others have been permitted to occupy, or justices giving has intruded himself into a house, tenement, or dwelling, or land appropriated for the poor belonging to a parish, shall refuse or neglect to quit the same to the churchwardens and overseers of the poor within one month after notice and demand in writing, two justices of the peace may summon the party, and after the expiration of seven days they may by warrant cause possession to be delivered to the parish officers; (a) but this proceeding is cumulative, and where a party wrongfully withholds possession, the latter may be taken without force, or the proceeding may be by action of ejectment. (b) 10. Remedies in equity.. When the legal estate is vested in a trustee and he declines to interfere and allow his name to be used in the supposed demise in a declaration of ejectment, then (although he could not in case an action should be brought on his demise defeat the action by release, (c)) it is advisable to state explicitly in writing the necessity for the proceeding in an action of ejectment, and to tender an adequate indemnity, (d) and in case the trustee should wrongfully persist in his refusal and impede the proceedings, the cestui que trust might proceed in his name or file a bill in a Court of Equity, and probably the trustee might under circumstances be subjected to costs in a clear breach of trust; (e) or it may become necessary to file a bill and move for an injunction against a tenant holding over, (f) or to restrain a defendant in ejectment from setting up an outstanding term; (g) (r) 8 Hen. 6, c. 9 ; 31 Eliz. c. 11 ; 21 (y) Rex v. Williams, 9 Bar. & Cres. (*) See Burn's J. Forcible Entry, I. (a) 59 Geo. 3, c. 12, s. 17, 24, 25; see Chit. Col. Stat. 679, 680, and notes; (b) Wildbore v. Rainforth, 8 B. & Cres. 4; Turner v. Meymott, 1 Bing. 158; 7 Moore, 574, S. C.; ante, 375. (c) 4 Maule & Sel. 300. (d) See the mode of tender, post, ch. vi. (e) 3 Maule & Sel. 516; 6 Bing. 174. (f)Chit. Eq. Dig. 1057; 15 Ves. 180; 5 Price, 468. (g) Chit. Eq. Dig. 1055. |