ejectment

The rule of the common law is inflexible, that a party can recover in ejectment only upon a title which subsisted in him at the time of the commencement of the suit.

At common law, this was the name of a mixed action (springing from the earlier personal action of ejectione firmœ) which lay for the recovery of the possession of land, and for damages for the unlawful detention of its possession. The action was highly fictitious, being in theory only fpr the recovery of a term for years, and brought by a purely fictitious person, as lessee in a supposed lease from the real party in interest. The latter's title, however, must be established in order to warrant a recovery, and the establishment of such title, though nominally a mere incident, is in reality the object of the action. Hence this convenient form of suit came to be adopted as the usual method of trying titles to land. See 3 Bl. Comm. 199. French v. Robb, 67 N. J. Law, 260, 51 Atl. 509, 57 L. R. A. 956. 91 Am. St. Rep. 433; Crockett v. Lashbrook, 5 T. B. Mon. (Ky.) 538, 17 Am. Dec. 98; Wilson v. Wightman, 36 App. Div. 41, 55 N. Y. Supp. 806; Hoover v. King, 48 Or. 281, 72 Pac. 880, 65 L. R. A. 790, 99 Am. St Rep. 754; Hawkins v. Reichert, 28 Cal. 536. It was the only mixed action at common law, the whole method of proceeding in which was anomalous, and depended on fictions invented and upheld by the court for the convenience of justice, in order to escape from the inconveniences which were found to attend the ancient forms of real and mixed actions. It ls also a form of action by which possessory titles to corporeal hereditaments may be tried and possession obtained.

— Ejectment bill. A bill in equity brought merely for the recovery of real property, together with an account of the rents and profits, without setting out any distinct ground of equity jurisdiction ; hence demurrable. Crane v. Conklin, 1 N. J. Eq. 353, 22 Am. Den. 519.

— Equitable ejectment. A proceeding in use in Pennsylvania, brought to enforce specific performance of a contract for the sale of land, and for some other purposes, which is in form an action of ejectment, but is in reality a substitute for a bill in equity. Riel v. Gannon, 161 Pa. 289, 29 Atl. 55; McKendry v. McKendry, 131 Pa. 24, 18 Atl. 1078, 6 L. R. A. 506_Justice ejectment. A statutory proceeding in Vermont, for the eviction of a tenant holding over after termination of the lease or breach of its conditions. Foss v. Stanton, 76 Vt. 365, 57 Atl. 942.

An action which lies to recover the possession of lands, with damages and costs for the wrongful detention. It is in form the old personal action of ejection of farm, which lay to recover a term for years, adapted to the purpose of trying title to the freehold; and the fictions which distinguish it are merely the essential features of the old action, viz., a lease, an entiy, and an ouster. Ejectment of ward, Egettement de garde, I. fr. v. De ejectione custodicB.

At common law, this was the name of a mixed action (springing from the earlier personal action of e¢/ectione jirme) which lay for the recovery of the possession of land, and for damages for the unlawful detention of its possession, The action was highly fictitious, being in theory only for the recovery of a term for years, and brought by a purely ficlitions person, as lessee ina supposed lease fromm the real party in interest, ‘The latter’s title, however, must be estallished in order to warrant a recovery, and the establishment of such title, though nominally a mere incident, is in reality the object of the action. Hence this convenient form of suit came to be adopted as the usual method of trying titles to land. See 3 BI. Comm, 199. It was the only mixed action at common law, the whole method of proceeding in which was anomalous, und depended on fictions invented and upheld by the court for the convenience of justice, in order to from the inconveniences which were It is also a form of action by which possessory titles to corporeal hereditaments may be tried and possession obtained.

An action to recover possession of realty, with damages for the wrongful detention. See Ejeotio. Originally devised for a lessee ousted of his term of years, and who, having but a chattel interest, could not support a real action for recovery of possession. In effect, the action was for the trespass; and the remedy was in damages for the dispossession. Later, it was decided that the lessee could also recover his term. This brought the action into general use; and by the formalities of lease, entry, and ouster (which see below), the action was converted into a method of trying, collaterally, the title of the lessor. Then, as the title was never formally and directly in issue,, but the trespass for the expulsion only, the verdict was not pleadable in bar of another trespass. Thus it came that a verdict and judgment were conclusive only as regarded personalty. Afterward, when the fictions were abolished, the idea of a difference as between realty and personalty lingered in many States, a single verdict and judgment was not considered conclusive, and provision was made by statute for a* second trial. Where no such provision exists a former action may be a bar.3 In the original action the plaintiff had to prove a lease from the person shown to have title, an entry under the lease, and an^ouster by some third person. The modified action was brought by a fictitious person as lessee against another fictitious person (the casual ejector) alleged to have committed the ouster. Service was made upon the tenant in possession, with notice from the casual ejector to appear and defend. If the tenant failed to do this, judgment was given by default and the claimant put in possession, if he did appear, he was allowed to defend only by entering into the "consent rule," by which he confessed the fictitious lease, entry, and ouster to have been made, leaving only the title in question. See Doe. These fictions were abolished in England by the common-law procedure act of 1852, and further changes were made by the judicature acts of 1873 and 1875. In some States the action has never been adopted; in others it has been materially modified by statute; in a few it still exists in its original form. The ancient form is also employed in the circuit courts of the United States sitting in States where the old form was observed when those courts were estabhshed.' Ejectment is the remedy to recover a corporeal hereditament — an estate in fee-simple, fee-tail, for life, or for years; not, for rent, a right of way, or dower. The plaintiff, at the time of the institution of the suit, must have a right of entry and of possession 1 3 Bl. Com. 199. 2 Sturdy V. Jackaway. 4 Wall. 175-76 (1866), cases, Grier, J.; Miles v. Caldwell, 2 id. 40 (1864); Blanchard V. Brown, 3 id. 248 (1865); Dickerson v. Colgrove, 100 Com. 199. under legal title. In the Federal courts of law, the strict legal title prevails. The defendant must be in actual possession, and notice be given to the terretenant. The action is maintainable by a joint tenant or a tenant in common against a co-tenant who has dispossessed him. Recovery is upon the strength of the plaintiff's title, not upon the weakness of the defendant's,! with proof of injury equivalent to a dispossession. The plea of " not guilty " raises the general issue. The judgment is, that the plaintiff recover his term, or the possession of the land, and damages, which, as a rule^ are nominaL^ See Possession, Adverse; Peofits, 1, Mesne., Equitable ejectment. Ejectment at law, upon an equitable title; in effect, a bill in, equity for the specific performance of a contract or obligation to convey land. In Pennsylvania, whenever a court of equity will presume a trust to 'have arisen, compel its execution, or enforce an article of agreement, the courts of law by this means will administer the same relief.^ Ejectment bill. Generally, a bill in equity will not lie if it is in substance and effect an ejectment bill, and if the relief it seelis can be obtained by an action in ejectment.*

An action employed to try title to land; originating in the old mixed action of ejectment of farm, wherein a tenant dispossessed recovered his term and damages for the trespass. This modem action of ejectment contained many legal fictions, such as a lease by the real to the fictitious plaintiff, with entry, and ouster by a fictitious defendant called the casual ejector.

A species of mixed aetioa whicb lies to recoyer the possession of lands, with damages and costs for the wrongful withholding of them; being the principal method now in use for trying titles to land, and especially distinguished from other actions by the series of legal fieiioM on which it is founded. Ejectment is nothing more than the old personal action of efictum of farm, {efectione firmc Bf) which lay to recover a term for years, adapted to the purpose of trying titles to the freehold, and the fictions which distinguished it are merely the essential features of the old action, (yiz., a lecue, an entry, and an ouster,) retained in form, though lon^ dispensed with in fact. It is still nominally an action to recover a term for years, but as, in order to do this, the lessor's title must first be made out, a recovery always necessarily in* Yolves the establishment of the title, and thus eflfectually, although collaterally and incidentally, accomplishes the object of the suit.* The peculiarities of this action are fully explained in the elementary books to which it will suffice to refer. 3 £1, Com. 19©_205. 8i Sf<«pA. C7om.669— 676. Id. 490. 2 Crabb's Real Prop. 1079, § 2477, et seq. Wharton's Lex. Cra Ws Hist. 418, 448, 656. The fictions of ejectment have been made the subject of much criticism, but they haye effectually survived the late sweeping changes in the remedial law of England, and are still retained in practice in several of the United States. 4 Kent's Com. 70, 71, note. Ejectment has been described above as a mixed action. This is according to the arof Blackstone, and it is expressly nement enominated in England, by the stat 3 k 4 Will. IV. c. 27. 3 Bl. Com. 199. 8 Steph. Com. 460, note {q). It is, howeyer, classed by Mr. Crabb with real actions, and this is the arrangement of the New- York Revised Statutes, 2 Crabh's Real Prop. 1079. 2 N. T. Rev. St. [302], 229. On the other hand, Mr. Stephen prefers to consider it as a personal action, which it originally was. 8 Sieph. Com. 460, note {q).