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EJECTMENT ON LIMITED DEVISES.

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§ 13. Commons, etc.-A common appendant or appurtenant may be recovered in an action of ejectment brought for the lands to which it is appendant or appurtenant, but such right of common must be mentioned in the description of the premises, because, he who has possession of the land, has also possession of the common; and the sheriff, by giving possession of the one, executes the writ of possession as to the other. But it is prudent in such a case, to state in the description of the premises that the common so claimed is a common appendant or appurtenant, although it has been held after verdict, that an ejectment for lands and also for "common of pasture," generally, is sufficient.'

§ 14. Ejectment on Limited Devises, etc.-Estates in Perpetuity Void. It is a well established principle in law in the decision of questions arising under wills, that the intention of the testator shall be carried out so far as that intention is consistent with the rules of law. It is a principle of law that perpetuities shall not be permitted to exist. Real estate can not be so conveyed or devised as to be inalienable beyond a certain period or person, because such estates tend to the inconvenience and prejudice of commerce and of society. Where an attempt is made in a will or deed therefor, to create an estate in perpetuity, the law limits the estate and fixes some person in the line upon whom the estate vests in fee simple. And when the estate so vests, the next party in the line of descent will take nothing and he can not maintain an action of ejectment for the possession of the premises.'

APPLICATION OF THE RULE.

Estate by devise in tail male: William Nicoll in his will devised lands to his son for life, with remainder to the first son of his son for life, with remainder to the first and every other son and sons of the eldest son of his son successively, to hold the same in tail male. Subsequently to his death his son married and had a son, which son also married and had a son, so that there was a son, grandson and great grandson of the testator. Richard F. Nicoll, the grandson, brought an action of ejectment against three daughters of the testator who were in possession of the premises, for the recovery of the premises, claiming the same in fee under the will. On the trial the jury found a special verdict on the facts as stated, upon which the Supreme Court rendered a judgment for the plaintiff saying: "It was the intention of the testator that the lessor (plaintiff) should take an estate for life

'Adams on Ejectment, 19.

Jackson v. Brown, 13 Wend. (N. Y.)437; see Long v. Blackall, 7 T. R.

102; Steadfast v. Nicoll, 3 Johns. Cas. (N. Y.) 18; Chapman v. Brown, 3 Burr. 1626.

only; that intention is contrary to the rules of law as tending to a perpetuity; that intention the court can not effectuate. But to execute the general intent as far as possible, the lessor must take an estate of inheritance, a fee simple." Jackson v. Brown, 13 Wend. (N. Y.) 437.

§ 15. Recovery of Dower in Ejectment. The jurisdiction of Probate Courts in the matter of dower is purely statutory and in no way essential to the settlement of estates.' It is a proceeding where the estate is solvent in which only the widow and heirs are interested.' Proceedings to assign dower may be had at any time before, during or after administration upon the estate is closed. At common law the assignment of dower was enforced by a writ of unde nihil habet or by writ of right of dower against the tenant of the freehold, and if judgment was obtained by the widow she could then recover her possession in an action of ejectment. The writ is of the same nature and efficacy as the writ of right to recover the fee.' It issued upon filing a præcipe wherein the widow stated that she had been married to and declared herself to have been the wife of the person whom she claimed was her late husband; the writ would be abated if this was omitted. Until dower had been assigned or if judgment had been obtained upon the writ and possession taken by the demandant, the owner of the fee or remainder-man might enter and take possession to protect his title. The writ of dower is now abolished in most of the States, but ejectment may be resorted to to accomplish the same purpose, and in such case the description of the land in the declaration must be so certain that possession may be delivered by the sheriff without any reference to any description outside of the writ. Any defect of this kind in the description can not be cured by reference to any deeds or records. The right of dower is not an undivided third of the entirety, but of one-third in severalty.' Nor is it one-third in quantity

1 Smith's Probate Law, 214. Campbell App., etc., 2 Doug. (Mich.) 146.

3 Park on Dower, 283; Roper's Baron & Fernme, 429; 2 Scribner on Dower, 83.

42 Black. Comm., 182.

Fulliam v. Harris, Cro. Jac. 217; Roper's Baron & F. 429; William v. Gwyn, 2 Samuel, 43; 3 Chitty's Pleadings, 1311.

6 King v. Merritt, 67 Mich. 194; 34 N. W. Rep. 689 (1887); Evans v. Evans, 29 Pa. St. 277.

May v. Rumney, 1 Mich. 1-9; Rayner v. Lee, 20 Mich. 384; King v. Merritt, 67 Mich. 194; 34 N. W. Rep. 689 (1887); Stewart v. Chadwick, 8 Clocke (Iowa), 463.

ASSIGNEE OF WIDOW'S DOWER.

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of the lands of which the husband died seized, but the widow is entitled to the use of such a part of the lands as will yield one-third of the entire income of the whole.' The right until assignment, is inchoate and can not be set up in an action of ejectment against an heir entitled to the fee. To the extent it exists it is a continuance of the estate of the husband, and is held of him by appointment of law, and under the statute of limitations is liable to be lost or defeated by lapse of time, the same as any other interest in land. Until it is legally assigned or set off, the person entitled to the fee may bring ejectment against one wrongfully in possession and recover.'

§ 16. Assignee of Widow's Dower Can Not Maintain Ejectment. The right of dower, until it is legally assigned, is a right vesting in action only, a mere right of action and nothing more, and the general rule is that it can not be aliened so as to enable the grantee to being an action therefor in his own name. A widow may release her dower to the terretenant, so as to bar herself, but she can not invest any other person with a legal title thereto until it has been assigned." The right of dower attends the estate and it is only severed by assignment. After such severance it becomes subject to sale and transfer the same as any other life estate, but not before. The widow may release it to the owner of the fee so as to unite it with the fee, but she can not alien or transfer it to a stranger to the title. It has been held in some States that if a widow sell her right of dower before assignment, the purchaser may maintain a writ of dower and compel an assignment in a suit in her name, although it is really for his benefit. And it has also been held that courts of equity will enforce such a conveyance made before assignment in a proceeding by the purchaser against the heirs and the widow, the

1 Leonard v. Leonard, 4 Mass. 533; Connor v. Shepherd, 15 Mass. 167; King v. Merritt, 67 Mich. 194.

* 4 Kent's Comm., 61, 62; Howe v. McGivern, 25 Wis. 525; Johnson v. Wilmarth, 13 Met. (Mass.) 416.

King v. Merritt, 67 Mich. 194; 34 N. W. Rep. 699; Cox v. Jagger, 2 Cow. (N. Y.) 651; Shields v. Batts, 5 J. J. Marsh. (Ky.) 12; McCammon v. Detroit, etc., R. Co., 66 Mich. 442; 33 N. W. Rep. 728 (1887).

Galbraith v. Fleming, 60 Mich. 403; 27 N. W. Rep. 583 (1886); Rayner v. Lee, 20 Mich. 384.

5 Galbraith v. Fleming, 60 Mich. 403; 27 N. W. Rep. 583 (1886); 2 Scribner on Dower, 42.

Robie v. Flanders, 33 N. H. 524; Lamar v. Scott, 4 Rich (N. C.) 516; Thomas v. Simpson, 3 Pa. St. 60; Rowe v. Johnson, 19 Me. 146; Galbraith v. Fleming, 60 Mich. 403.

assignce or grantee being considered as succeeding to the widow's right in the premises; and the courts have in such cases decreed an admeasurement of the dower as against the heirs and compelled a new conveyance from the widow after such assignment or admeasurement.' But we are unable to find any authority authorizing an action of ejectment to be brought by one purchasing the right of dower before its assignment, either in the name of the purchaser or widow." At common law a widow could not bring ejectment before an assignment of her dower had been made, and under the statutes of the several States authorizing an action of ejectment in such cases, no provision seems to be made for any other person to bring the action in her place or stead.'

§ 17. Fisheries, etc.-According to the old English doctrine the action of ejectment would not lie for the recovery of a fishery because it was simply a profit taken and enjoyed by the mere act of the proprietor himself, but this doctrine has been repudiated. "There is no doubt but that a fishery is a tenement; trespass will lie for an injury to it, and it may be recovered in ejectment."

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18. Fixtures.-A fixture is an article which was a chattel, but which by being physically annexed to the realty by some one having an interest in the soil, becomes part and parcel of it." The law is well settled that an action of ejectment will lie for the recovery of the possession of a fixture, but it is not easy in all cases to determine what are fixtures. For the determination of this question these rules have been adopted: (1) Annexation to the realty; (2) adaptability to the use or purpose to which the realty is appropriated, and (3) the intention of the party making the annexation."

1 Potter v. Everett, 7 Ired. (N. C.) Eq. 152; Wilson v. McLenghan, McMul. (S. C.) Eq. 35; Maccubbin v. Cromwell, 2 Har. & G. (Md.) 443; Galbraith v. Fleming, 60 Mich. 403.

403.

Galbraith v. Fleming, CO Mich.

Capen v. Pickham, 35 Conn. 88;
Potter v. Cromwell, 40 N. Y. 278.

68 Am. and Eng. Ency, of Law, 41. In Pennsylvania where a boiler, engine and stack were erected upon the lands of the plaintiff, at the joint expense of himself and the defendant,

3 Yates v. Paddock, 10 Wend. (N. under an agreement to use the same Y.) 529. as a common source of power, with

4 Ashurst, J., in Rex v. Inhabit- out limitation as to time, the interests tants, etc., 1 T. R. 355.

5 8 Am. and Eng. Ency. of Law, 41; Teoft v. Hewitt, 1 Ohio St. 511;

thereby created in the fixtures were in the nature of an estate in lands, as tenants in common, and where one

LANDS SUBJECT TO EASEMENT.

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$ 19. The Right to Take Herbage, Grass, etc.-The right to take herbage, grass and aftermath was formerly held to be sufficient to maintain the action of ejectment. This rule of law rests upon the principle that the party who has a grant of the herbage, grass or aftermath has a particular interest in the soil, although by the grant the soil does not pass to him. He is entitled to all the profits of the land, and to the land itself for the same time, and no person can rightfully enter thereon while he is so entitled.'

§ 20. Lands Subject to Easement, etc.-As a general rule, an action of ejectment will lie to recover the possession of land which is subject to an easement.* The owner of an easement The

can not be the owner of the estate in which it exists. right to the fee and the right to the easement, in the same estate, are rights independent of each other, though existing in the same estate. Each party may protect himself by appropriate actions, one to maintain his possession of the fee, and the other to protect himself in the enjoyment of his easement."

§ 21. The Same Subject-A General Rule.-It is a well settled rule of law, that the owner of the land subject to an easement, servitude, or public use, may recover the possession of land in an action of ejectment against a person wrongfully appropriating the same to a purpose wholly foreign to the easement, or servitude. The rule applies to public highways, private roads, alleys, passageways and the like, but in the ac

of the tenants in common excluded the other from the use and possession, an action of ejectment could be maintained. Hill v. Hill, 43 Pa. St. 521.

1 Adams on Ejectment, 22; Wheeler v. Toulson, Hard. 330; Ward v. Petifer, Cro. Car. 362.

Tillmes v. Marsh, 67 Pa. St. 507; Cooper v. Smith, 9 S. & R. (Penn.) 26; Goodtitle v. Alker, 1 Burr. 133. 3 Morgan v. Moore, 3 Gray (Mass.) 319.

4 Etz v. Daily, 20 Barb. (N. Y.) 32; Lozier v. N. Y. Central R. R. Co., 42 Barb. (N. Y.) 465; Carpenter v. Oswego & S. R. R. Co., 24 N. Y. 655.

Cooper v. Smith, 9 S. & R. (Pa.) 26; Warwick v. Mayo, 15 Gratt. (Va.) 528; Bac. Abr. Tit. Highways B.; Brown v. Galley, Lalor's Sup. 308; Stackpole v. Healy, 16 Mass. 35; Hancock v. Wentworth, 5 Metc. (Mass.) 446; Morgan v. Moore, 3 Gray (Mass.), 319; Bolling v. The Mayor, etc., 3 Rand. (Va.) 563; Wright v. Carter, 3 Dutch. (N. J.) 76; Pomeroy v. Mills, 3 Vt. 279; Blake v. Ham, 53 Me. 430; Ayer v. Phillips, 69 Me. 50; Reformed Church v. Schoolcraft, 65 N. Y. 134; Wager v. Troy Union R. R. Co., 25 N. Y. 526; Goodtitle v. Alker, 1 Burr. 133.

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