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An American author in speaking of the action of ejectment has truly said: "The desire to acquire and to hold property is one of the strongest of the human feelings. It might, perhaps, be better called a passion; so deeply rooted is it, so ardent, and so engrossing. To gratify it, hardships are patiently endured, dangers cheerfully and heroically braved, and even life risked, and sometimes sacrificed. It is founded partly upon the necessity which renders some acquisitions indispensable; partly upon the love of the power and influence which possessions confer; and partly on the avarice which enjoys riches for their own sake. This impulse is toward all material things; in short, toward everything that can become subjects of ownership. But, the more fixed forms of property, as they are the least perishable, minister most permanently to the gratifications and the pride of man, and are susceptible of being transmitted to remote posterity, the most highly esteemed and the most eagerly sought after by him. This, at all events, has always been the case in civilized life. The only exceptions to the rule are to be found among wandering and savage tribes, whose rude tastes and unsettled lives limit them to whatever is present and fleeting. From the earliest ages, therefore, exclusive title in the soil has been among the primary objects of man's ambition. Nations, as well as individuals, have coveted and sought to obtain extensive landed possessions. Nearly all the wars with which the earth has been scourged, though ostensibly owing to other causes, were, in fact, originated by this desire for territorial acquisition. The conquests of Alexander the Great, ending in lamentation that there were no more worlds to conquer, might very well be taken for a splendid allegory, truly illustrating this morbid and insatiable longing of man. The Roman Empire grasped after territory until its very expansion brought weakness and decay. And in more modern times, down to the present day, nations, regardless of the solemn lessons of the past, have continually striven, and are continually striving, to enlarge their area. It is the same with individuals. Despotic rulers, whose will is law, have always held, to their private use, extensive domains; and so also have the kings and nobility of monarchical governments. Indeed, so desirable and so essential to the dignity of their position, has permanent property in land been considered, that stringent laws have been passed, forbidding its alienation. In more favored conditions of society, where most people have a competency, the ambition of men extends in the same direction. It may be well that it is so. Doubtless, the wish to possess a portion of the earth's surface is a more healthful and higher aspiration than the coveting any rere works of art. Certain it is, that those who have most to do with the soil, as independent owners of it, are generally most upright, magnanimous,
generous, enterprising, and brave. Such being the dignity and paramount importance of this species of property, the right to it ought to be definitely fixed and zealously guarded. And so it is. In no branch of the law are the rules more express, clear, and positive. In none are the principles of the common law better settled, the requirements of the statutes more explicit, or the decisions of the courts more uniform or better understood. But, independently of the main subject, there are others incidental and collateral thereto, involving many nice questions, the judicial construction of which has enriched thousands of volumes of reports, and given rise to numerous learned and useful treatises. A good and indefeasible title to real estate is, of course, the foundation of all property in it. As the action of ejectment is an action to test this title, it is necessarily among the most important of our judicial proceedings. Probably, no action comprehends more of the wise regulations of laborious legislatures and of the learning of venerable courts. It is also a very ancient and a very curious remedy. It originally consisted entirely of fictions, and had in it much of the grotesque and even ludicrous. Although it has settled down into a connected, matter of fact, and convenient system, and has consequently lost much of its former character, yet it still retains enough of quaintness, especially in those States which preserve the English practice, to render it highly attractive."1
Actions for the recovery of the possession of real property in the United States exist under various names and forms: Ejectment, writs of entry, writs of right, trespass to try title, real actions and statutory remedies for the recovery of real property. The general rules of law governing all these various forms, are substantially uniform and well settled: As to where the action will and where it will not lie and the character of the estates recoverable: the essentials of the plaintiff's case in general as well as legal and equitable titles; the demand for possession, when necessary prior to the commencement of the action; the authority of attorneys to bring the suit; parties, plaintiff and defendant; pleadings; the relation in law existing between vendor and vendee; co-tenants, between themselves and between themselves and third persons; mortgagor and mortgagee; landlord and tenant; the rules of evidence; verdicts, judgments and writs of possession.
These rules constitute, practically, one general system or manner of proceeding for the recovery of the possession of real property, damages for its detention, and the determination of titles in actions at law, disguised as it may be under a variety of names and forms of procedure.
As much of the learning in the older books and even in those more modern, is founded upon common law rules, governing the old action of ejectment, and expressed frequently in language not less modern, a brief history of the old action is given and its fictions illustrated by a declaration taken from Chitty's Pleadings, with its notice to appear, the consent rule, etc. M. L. NEWELL.
Thomas N. Waterman, Preface to Adams on Ejectment.
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