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COPYHOLDER AS PLAINTIFF.

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§ 10. Foreign Corporations.-It may be stated as a general rule that corporations may, by the comity of States, maintain the action of ejectment in States other than those in which they derive their charters. Under the common law an alien friend was permitted to bring his action in the courts' under certain conditions, which, having been complied with, he was entitled to the same rights and privileges in the courts as the native born subject or citizen. Under the modern ideas, among States and Nations, no good reason is perceived for any distinction between artificial and natural persons. In States where foreign corporations are not permitted to hold real property, of course the rule can not apply.'

§ 11. A Copyholder as Plaintiff.-While the ancient prac tice in actions of ejectment prevailed, it seems to have been holden that a copyholder could not maintain the action upon a demise for a longer term than a year, unless the license of the lord were first obtained, or a special custom existed in the manor enabling him to make longer leases; and, in some authorities, it is even doubted whether the action can in any case be supported by a copyholder. But since the introduction of the modern practice, these objections are wholly obviated.'

A copyholder, who claims by descent as heir, may maintain ejectment without admittance, as his title is complete against all the world, except the lord, immediately upon the death of the ancestor. Rex v. Rennett, 2 T. R. 197; Doe v. Rolfe, Nev. & Per. 648; Doe v. Crisp, 6 Ad. & E. 779.

But if it be necessary for him to proceed against the lord for a seizure on the death of the ancestor, he must prove that he has tendered himself to be admitted at the lord's court, or that the landlord has done some act dispensing with such tender. Doe v. Bellamy, 2 M. & S. 87.

When the landlord grants a reversion of a copyhold expectant on a life estate, as the grantee acquires a perfect title by the grant only, he may, on the termination of the life estate, maintain ejectment without admittance. Roe v. Loveless, 2 B. & S. 87.

4 Day, 328; Peck v. Smith, 1 Conn. 103; 2 Smith Lead. Cas. 184; Angell on Highways, chap. VII; Bissell v. Railroad Company, 23 N. Y. 61; Sherman v. McKeon, 38 N. Y. 266; Pomeroy v. Mills, 3 Vt. 279, (1830); Bolling v. Petersburg, 3 Rand. (Va.) 563 (1825); Warwick v. Mayor, 15 Gratt. (Va.) 528 (1860); Woodruff v. Neal, 28 Conn. 163; Cooper v. Smith, 9 Serg. & R. (1 enn.) 26.

'N. Y. Dry Dock v. Hicks, 5 McL. (U. S.) 111.

Leasure v. U. M. L. Ins. Co., 91 Pa. St. 491; Bank v. Ead, 13 Pet. (U. S.) 519.

Stephen v. Elliot, Cro. Eliz. 483; Goodwin v. Longhurst, Cro. Eliz. 535; Spark's Case, Cro. Eliz. 676; Downingham's Case, Owen, 17; Eastcourt v. Weeks, 1 Lut. 799.

Adams on Ejectment, 103.

§ 12. Lessee of a Copyholder.-The privilege of the lessee of a copyholder to maintain ejectment, seems, according to the old authorities, to have been formerly limited to those cases in which his lease was for one year only, or in which (being of longer duration) the license of the landlord had been previously obtained, or there was a special custom in the manor authorizing such leases; but it is now settled that a lessee for years, being a copyholder, may maintain ejectment, although he has not the license of the landlord, and no special custom exists authorizing such leases, for the lease gives him a good title against every one but the landlord.'

Copyhold lands were granted to A, for the lives of herself and B, and in reversion to C, for other lives. A died, having devised to B, who entered and kept possession for more than twenty years. On his death, C brought ejectment; held, that the action was barred by the statute of limitations, for that C's right of possession accrued on the death of A, inasmuch as there can not be a general occupant of copyhold land. Doe v. Scott, 4 Barn. & C. 706.

§ 13. Guardians for Nurture.-A guardian for nurture can not maintain ejectment, for he can not make leases for years, either in his own name, or in the name of the infant. He has only the care of the person and education of the infant, and has nothing to do with the lands merely by virtue of his office.* The same rule applies also to the natural guardian.'

A guardian by nature, is the father, and on his death the mother; this guardianship extends only to the custody of the person, and continues till the child arrives at the age of maturity. Coke on Littleton 84, a; Bouvier's Law Dictionary, 571.

§ 14. Guardians (in Socage). The guardian in socage of an infant, or a testamentary or other guardian having the usual powers by statute of a guardian in socage, may maintain an action of ejectment against any person entering upon the lands of his ward without right. This is held to be so for the reason

1 Adams on Ejectment, 111; Goodwin v. Longhurst, Cro. Eliz. 535; Doe v. Tressider, 1 Q. B. 416.

2 Magruder v. Peter, 4 G. & J. (Md.) 323; Bedell v. Constable, Vaugh. 177; Ratcliff's Case, 3 Co. 37; Combs v. Jackson, 2 Wend. (N. Y.) 153; Kinney v. Harrett, 24 Alb. Law Jour. 216; Fonda v. Van Horne, 15 Wend. (N. Y.) 631; Anderson v. Darby, 1 N.

& M. (S. C.) 369; May v. Calder, 2 Mass. 55; Ross v. Cobb, 9 Yerg. (Tenn.) 463; Combs v. Jackson, 2 Wend. (N. Y.) 153; Adams on Ejectment, 114; Teft v. McCall, 3 Barr. (Penn.) 256; Holmes v. Seely, 17 Wend. (N. Y.) 75; 3 Ratcliff's case, 3 Co. 37, note; Fonda v. Van Horne, 15 Wend. (N. Y.) 631.

GUARDIAN AND WARD.

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that a guardian in socage has the legal custody of the land of the infant, and is entitled to the profits for his own benefit. He is in possession of such lands by right and may, therefore, maintain the action of ejectment against persons entering upon him without right. But the abolition of tenures in this country has destroyed guardianship in socage as recognized at common law. Here guardians are appointed under the statutes of all the States, and may or may not possess the same general powers in respect to the lands of their wards as were conferred upon the guardian in socage at common law.'

A guardian in socage, under the common law, was one who had both the custody of the person of the infant and his lands; the common law gave this guardianship to the next of blood to the child to whom the inheritance could not possibly descend. It has become nearly, if not obsolete, in the United States, though in common legal parlance the term “guardian in socage" is used to designate a guardian who is entitled to the custody of the lands of his ward. 1 Bouvier's Law Dictionary, 572.

A guardian in socage has the custody of the lands of the infant, and is entitled to the profits for his benefit. He has an interest in the estate and may lease it. He may avow in his own name and bring trespass. He is in possession by right, and may, of course, maintain the action of ejectment against any person entering upon him without right. Holmes v. Seeley, 17 Wend. (N. Y.) 75; 3 Bac. Abr. Tit. Guardian, 403; Byrne v. Van Hocsen, 5 Johns. (N. Y.) 66; Jackson v. De Walts, 7 John. (N. Y.) 157.

§ 15. Guardian and Ward.-As a general rule it may be stated that when a guardian is vested with the estate of his ward, he is the proper person to maintain the action of ejectment for the possession of the lands; his ward can not maintain the action in his own name; this seems to embody the correct and logical rule though the authorities are not quite uniform. The fact that there can exist but one entry upon the same lands at the same time, would seem to preclude the idea that the ward and his guardian can both institute and maintain separate actions for the recovery of the possession of the same lands at the same time; but if they should do so it is probable the court would, upon an application of the defendant, consolidate the action or restrain one of them by injunction, for both of them being vested with the same title, an adjudication in one case might be binding in the other.

16. The Law Stated by Adams. It is difficult to discover any principle upon which both infant and guardian can haye 'Holmes v. Seeley, 17 Wend. (N. Y.) 75.

2 Seaton v. Davis, 1 T. & C. (N. Y.) 91.

the right of maintaining ejectment for the same lands, but it seems, notwithstanding, that they do possess such right. In the case of Doe d. Holsworth v. Handcock, coram Park, J., tried at the Derby Summer Assizes, 1836, the lessor of the plaintiff was an infant, aged nineteen years, and the tenancy was proved to have been made with the plaintiff as testamentary guardian, and the learned judge ruled that the demise was properly laid, and refused to reserve the point.'

In Canada, under the English statute, which provides that guardians shall have the charge and management of the estates of their wards, real and personal, and shall appear and prosecute or defend actions in his or her name, it was held that the guardian might maintain ejectment for the ward's lands, but the court was of opinion that the infant might also have brought the action independent of the guardian. Doe v. McLeod, 8 U. C. Q. B. 344, under statute 8 Geo. IV, chap. 6.

§ 17. Grantee of a Rent-charge. The grantee of a rentcharge having power to enter upon the lands, if the rent be in arrear, and hold them until satisfaction, can maintain the action; but before he can enter for the non-payment of rent, he must make a demand of the precise amount due on the day on which it became due, and on the most notorious part of the land, although the possession be vacant and there be nothing to distrain.

These rights of entry are always taken strictly; and where a man gave a leasehold estate by will to B, his executors, etc., subject to a rent-charge to his wife during her widowhood," with a power to the widow to enter for non-payment of rent, and to enjoy, etc., until the arrears were satisfied, and in case of the widow's marriage, he willed that B should pay the rent-charge to C, his executors, administrators and assigns, it was holden that C's executors, after the widow's marriage and C's subsequent death, had no right of entry for non-payment of the rent-charge.

The payment of a lien or a charge on land, may be enforced by ejectment. Galbraith v. Fenton, 2 Serg. & R. (Penn.) 359; see Walcop v. M'Kinney, 10 Miss. 229; Brown v. Mace, 7 Blackf. (Ind.) 2.

But, it seems, ejectment is not the proper form of an action to recover a legacy charged on land. Gause v. Weley, 4 Serg. & R. (Penn.) 509.

2

Adams on Ejectment, 115.

y. Cowly, 1 Saund. 112; Hassell v.

M'Cormick v. Connell, 6 Serg. & Gowthwaite, Willes, 500; 32 Hen. R. (Penn.) 151.

VIII, c. 34.

Adams on Ejectment, 120; Jemott

HEIRS AND DEVISEES.

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Where one of two parties executed an assignment of a lease, absolute in its terms, and at the same time, gave a separate writing, to surrender the possession on a future day, and the assignee, at the same time, contracted in writing, with the assignor, to pay a sum of money on a day before the time of said stipulated surrender, it was held that on the refusal of the assignor to surrender according to his contract, the assignee might maintain ejectment for the premises without having made such payment. Strong v. Garfield, 10 Vt. 497.

Where A mortgaged lands to B, and A afterward leased the same lands to C, who entered under A, and while C was thus in possession as the tenant of A, paying him rent, B brought ejectment against A for such lands, it was held that the action was sustainable. Middletown Bank v. Bates, 11 Conn. 519.

§ 18. Heirs and Devisees.-(1) Heirs: The heirs at law of a person dying intestate may always maintain ejectment for the possession of the lands of which their ancestor died seized and possessed.' Prior possession of the ancestor or dying in possession and proof of heirship is in general sufficient to enable the heir to recover without producing a paper title against a person entering without title.' The heir whose ancestor dies in possession is presumed to be in possession, and he recovers on the seizin of his ancestor.

The courts will never permit an heir to be disinherited by mere conjecture. So where the defendant took a lease of a lot for a term of years, for which he paid rent for several years, in an action of ejectment by the heirs of the lessor of the plaintiff, against the defendant, who continued to hold possession, it being shown that the original lessor was dead, and that his children and their heirs were the lessors of the plaintiff, and it being admitted that the deceased left a will, the defendant insisted that the plaintiff was bound to show the devises contained in the will. But the court held that the defendant, if he would bar the title of the heirs at law, was bound to show, affirmatively, a devise of the premises in question. Brant v. Livermore, 10 John. (N. Y.) 366.

But where a deed of bargain and sale recited its object to be to secure the premises to the sole and separate use of the bargainor's daughter, and conveyed them, for the consideration of one dollar moving from the bargainee, to the said bargainor and his heirs, in trust for the use of the said daughter and her heirs, she leaving children her heirs at law, it was held that said heirs at law could not maintain an action of ejectment; the legal estate still remaining in the trustee. Bruce v. Faucett, 4 Jones L. (N. C.) 391. An heir and his grantees can not set up an adverse title derived from possession alone, as against a grantee of the ancestor. Cashman v. Brownlee, (Ind.) 27 N. E. Rep. 560, Am. Dig. (1891) 41.

'Ulrick v. Beck, 13 Pa. St. 639; 3 Tappscott v. Cobbs, 11 Gratt. (Va.) Buck v. Squires, 22 Vt. 484; Car- 172; Fosgate v. Herkimer, etc., Co., ruthers v. Bailey, 3 Kelly (Ga.), 105. 9 Barb. (N. Y.) 287. 'Mattonnier v. Dimmick, 4 Barb. (N. Y.) 566.

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