CH. 178. b. 172. Hob. 71, Salk. 252. When the tenant pleads this plea, he must shew what, and also allege he has always been ready to render dower, and yet is ready if the plt. will deliver the deeds. If she produce them on trial, she will recover; and if she be with child, she may keep them for him, and the heir for the time being cannot plead this plea. This cannot be pleaded after imparlance. This plea cannot be pleaded in dower against the feoffee. 9 C. 18; 11 H. VI. 4, or guardian; Co. L. 39, Burdon v. Burdon; Salk. 252. Co. Ent. 171, § 9. A jointure may be pleaded in bar of dower; and also, a jointure after marriage, to which she agrees after the death of her husband; and it is sufficient to plead a jointure generally, without saying she agreed; for it shall be intended, till it be alleged on her part, that she refused. She may reply, the estate was not made to such uses, or it was not for a jointure. Co. Ent. 172; Hob. 104. Mass. S. J. 1794.-1 Bro. Ent. 205. 10. Tout temps prist, pleaded. Deft. comes and says that Court, Essex, from the time of the death of the husband of the plt. always hitherto, he, the deft. was, and yet is, ready to render to her her dower; hoc paratus &c.; without this, that the plt. demanded of the deft. to assign her reasonable dower in the premises, which he refused to do, as the plt. has declared: prays judgment it she ought to have damages, and for his costs. She replied, a demand. This plea is on Massachusetts act of March 11, 1784; noticed, Ch. 130, a. 4. Massachusetts Supreme Judicial Court, August, 1796, decid2 Johns. R. ed if no demand in fact, according to the act for assignment of dower, one month before the action is commenced, it must be pleaded in abatement. Co. L. 32, b; Lut. 715, 717; 2 Mod. Ca. 25. 484. Rast. Ent. 229.--5 Com. D. 2 Y. 15, Pleader. Cro. El. 451. § 11. Assignment of dower made, pleaded. Actio non &c., because he says, that he, since the death of the husband &c. assigned to the plt. ten acres of land, with the appurtenances, of the thirty acres of land, to be holden by the plt. for the term of her life, in the name of dower of her the plt. which belonged to her of the said thirty acres of land; to which assignment the plt. agreed; hoc paratus. Her replication, the deft. did not assign dower: so, plea, rent was assigned, -Story's Pl. or an annuity, for dower: so, plea, her husband devised to 358.-Mo.59. her lands in lieu of dower, which she accepted. 5 Com. D. Pleader; 2 Y. 15: so, twenty acres of wheat, common of pasture or other profit out of the land was assigned. Assignment by the husband's executor is no plea. Mod. 26. He who assigns dower must have a sufficient estate &c. 2 Leo. 10 and the assignment must be absolute, and not on condition. Cro. El. 452. § 12. There may be a view in dower, as in other real actions. On Massachusetts act of June 26, 1784, section 9, which al- § 13. So, there may be voucher in dower claimed &c. On the general principles on which tenants may vouch to their assistance, those who can strengthen their defence. See Voucher, Ch. 124. The tenant may vouch the heir; Com. D. Pleader; 2 Y. 18. CH. 178. Art. 13. 298. § 14. A release pleaded is of no effect if there be no priv- 11 Mass. R. ity between the parties. This rule is founded on general principles. See Releases; but where there is a privity, a release of dower by the plt. or widow to the tenant of the freehold, is valid. Com. D. Pleader; 2 Y. 17. § 15. Disseizin made by the plt., pleaded. Actio non, be- Rast. Ent. cause the deft. says the plt. after her husband's death, and 231.-Cited Story's Pl. before the purchase of her writ, entered into the same three 250. acres of pasture, and unjustly disseized the plt. thereof, without judgment, and is yet seized thereof in her demesne, as of fee, by disseizin &c.; hoc paratus &c. Replication, the plt. did not disseize the deft. Pleadings, 16. Dower lies only against the tenant of the freehold or Comp. Attor. inheritance; hence, the deft. may plead he is not such tenant, in 207-Story's abatement. He says, he cannot render dower, because he is 354. not tenant as of the freehold of &c.; nor was he on the day of suing out the plt's. writ: prays judgment it may be quashed. Replication, tenant of the freehold. In another such plea, stated who was such tenant. This is also considered Mass. act, the true construction of our statute respecting dower, though it speaks of the action of dower brought "against the tenant Mass. R. 485. in possession;""or such persons, who have or claim right or 3 Morg. 466. inheritance in the same estate." Action against two, as to part sole tenure. Parker v. Murphy. March 11, 1784.-12 v. Blake.-5 § 17. To a demand of dower, it is no plea, partition has been 12 Mass. R. made among the heirs. Before dower is assigned to the widow 280, Motley she holds no part of the land, she is neither sole seized of Johns. R. 80 the whole or of any part; the heirs are seized of the land, and entitled to hold the whole, until her dower is legally assigned; hence, she has no interest in a partition they make before her dower is so assigned; nor is she bound by such partition. Miller. §18. Commissioners to assign dower need not be freeholders 12 Mass. R. of the county. Must be a third of the income. That is, in 454, Miller v. appointing the judge of probate is not confined to the freeholders of the county where the husband last resided. There is no statute directing him so to appoint them; but the sheriff must appoint, in assigning dower, freeholders of the Art. 14. CH. 178. county where the land lies. The judge correctly appointed commissioners in Machias, and others in Boston. As to the income, see Leonard t. Leonard, 4 Mass. R. 533. In Miller's case, the intestate last dwelt in Boston, and left lands in Machias. Story's Pleadings, 364, A. D. ed. § 19. Dos de dote, pleaded. Actio non &c., because the deft. says one A, who was the wife of B, late of &c., deceased, 1773, plead during all the lifetime of the plt's. husband, and until after his death, and until after the purchase of the writ aforesaid, did claim to hold, and did in fact hold, possess, and enjoy her right of dower of all and singular, (the premises) mentioned in the plt's. writ, all which were in the seizin and possession of the said B, father of the plt's. husband, and of all which the said father was seized in his demesne as of fee, during the coverture; and of one third part thereof, the said A was legally endowed, after his death, and during all the coverture of the plt. and her husband; ready to verify &c. The doctrine of dos de dote was early adopted in Massachusetts and Maine, from the English law, and on the principles of that law. See Ch. 91, a. vague use of 503.-2 Cruise, 69, 229, 233. ART. 14. Pleas proper in ejectment. § 1. Ejectment, according to the modern English practice, 6, our former is not much used in New England, especially in Massachuejectment.- setts. Still, however, even here an action of ejectment, or Forms of de- an action in which the deft. is called on to answer the plt. in claring, 2 Ch. a plea of ejectment, is sometimes brought, especially in order on Pl. 392 to 484, and for the mortgagee. or his assignees, to get possession of estates notes.--l mortgaged, as will be seen in many forms in American PreCruise, 243, cedents, (head of Real Actions,) made by Trowbridge, Read, Pratt, Thatcher, R. Dana, and others; but on attending to these forms, and the proceedings thereon, it will be observed that the deft. might just as well be called upon to answer in a plea of land; for each declaration states the plt's. or deman dant's title as he expects to prove it, and there is nothing of fiction in the case, no confession of lease, entry, and ouster, a part so essential in the English practice, and in New York, and other states which have adopted that practice. Prior to the year 1786, or thereabouts, in almost all actions brought in Massachusetts, to recover possession, or seizin and possession of lands, the deft. or tenant was summoned to answer in a makes the landlord; plea of ejectment, even in the case of a mere right, as in Coleman, 56. Beckford & ux. v. Ellis or Ober & al. &c., wherein the mere right was demanded and tried, and in which, on the part of the demandants the right of entry had been gone above thirty years. In fact, the plea of ejectment was a mere form of expression, to which very generally of late years has been substituted the expression, plea of land; nor It is the priority of inter est and the receipt of rent that CH. 178. Art. 14. let in to de fend in eject ment; id. 57. -So a claim ant of title to was much regard paid to the principal object of this action, called ejectment, whether it was to disprove the deft's. claim or title, or his tortious entry, or to establish the demandant's title, or right, or claim. Gentlemen of the bar in this State, A mortgagee several years since, as they came to be more attentive and out of possesaccurate in pleading, observed this word ejectment was used sion may be in a very loose manner; therefore, Trowbridge was led to observe, that an "action of ejectment may be brought in most cases; that our writs of ejectment are in the nature of real actions, and comprehended all those of the ancient common unlocated law, the writ of right, the writ of assize, the writ of entry, lands; id. 82. in their various degrees and several distinctions in point of American form" &c. "The demandant in ejectment may declare on Precedents, 288, 290. mere right, which is in the nature of a writ of right; on a gift in tail, which is in the nature of a formedon, whether in descen- Enough to der, remainder, or reverter," &c., &c. In fact, lawyers ob- in and posserved that our ejectment included almost every species of session in the real actions; and the general issue in it, almost invariabiy beginning of was, not guilty, even in a writ of right, in Essex and some without doother counties in the State, till about the year 1803. ing it in the demand seiz a declaration 201. the agree and Attentive lawyers naturally noticed that ejectment, in its close; 1 Day's Ca. in origin, was an action brought by one who had a lease for E. 134, 136.years, to get redress for an injury done him by disposses- 5 Cruise, sion. The declaration in this action, supposed only a term 239, 512.— for years in the plt., and the judgment was to recover the 3 Bl. Com. term. Ouster or dispossession of one from an estate for 3 Bl. Com. years, is a kind of disseizin, eviction or turning out the ten- 199.--Originant from the occupation of the land, during the continuance al use of of his term; and for this injury the law provided two reme- Bohun, 264 ejectment.dies, ejectione firma and quare ejecit infra terminum. In these, to 270.-A possession and damages, said Blackstone, are recovered. A few forms writ of ejectione firma lies where lands are let for a term of &c., and of years, and afterwards the lessor, reversioner, remainderman, ment, modor any stranger ejects or ousts the lessee of his term; and in ern use, this he recovers back his term, or the remainder of it, with proceeding. damages. Thus limited was the ancient use of this action, only a remedy to recover the term of lessee for years and damages. It has been as much extended in England, New York, &c. in modern times as in Massachusetts, but in a very different manner. In England, Blackstone observed, the title to land is now usually tried upon an action of ejectment 3 Bl. Com. and trespass, writs of entry, assize, formedon, writs of right, 207. &c., have been but little used for a century past. Their forms, indeed, are preserved in the practice of common recoveries. In order to convert this action into a method to try titles to freeholds, it became necessary the claimant should take possession of the lands, to impower him to make manner of 197, 201 to CH. 178. the lessee for years, who could be capable of being dispossess ed; such claimant having a right of entry, makes a formal entry on the lands, and there being in possession, seals and delivers a lease to a third person for years, and then leaves the lessee in possession, who remains there till some one enters afresh, and ousts him, or turns him out; for this ouster or ejection the lessee is entitled to this action against the tenant or casual ejector, whichever it was that ousted him, to recover back his term and damages, and where against the casual ejector notice must be given to the tenant of the land. To recover in this action, the plt. must prove, 1st, good title in his lessor, which brings the right entirely before the court: 2. That the lessor (the real claimant) being seized by force of such title of the land, did lease them to the plt.: 3. That plt. being lessee did enter and take possession by force of such lease: 4. That the deft. ousted him. This must still be pursued where the land is vacant, except the notice to the tenant; but now no lease is made, no entry by the plt., and no ouster by the deft.; but these are supposed and confessed. Notice is given to the real tenant to defend, and the title merely is tried. If he do not appear and defend, on judgment against the casual ejector, and on execution, he is turned out by the sheriff. As ejectment lies only for corporeal hereditaments, the term tenement is improper, as it includes incorporeal estates. 2 Bl. Com. 17; 1 East, 441; Vice v. Burton, 2 Stra. 891; but 2 Saund. 44; Runn. Eject. 129; 1 Burr. 623. The tenant must give notice to his landlord, who by leave of the court, may be made co-defendant. Since the title is tried in this action, the damages are usually a shilling, or some trifle; and after recovery in ejectment, the plt. or lessor may bring trespass to recover the mesne profits, against the tenant in possession, who wrongfully received them. The ancient judgment was to recover the term and damages; or damages only, where the term had expired. "This writ is calculated to try the mere possessory title to the estate ;" and 1 D. & E.364. has succeeded to the actions of assize; but ejectment lies not -Yelv. 143. of those things whereon an entry in fact cannot be made, as of an incorporeal hereditament, except when appendant &c. to lands recovered; for where no entry can in fact be made, it shall not be supposed by fiction. Nor will it lie where the entry of him who has the right is taken away by descent, discontinuance, twenty years dispossession, &c.; and if the termor be ousted by A, and another come into possession, under A, the termor or lessee ousted, shall have quare ejecit infra terminum against such other person, by Westmin. 2, 24; but the right of entry may be in fee, in tail, for life, or years. 2 Esp. 221. Hob.5.-Cro. Cro.Jac. 146, 150.-Co. L. 5, 9.Stra. 54. Andr. 107. Cro. Car.492. -2 Selw. 617. |