or incorporeal. Diffeifin, of things corporeal, as of houses, lands, &c. must be by entry and actual difpoffeffion of the freehold; as if a man enters either by force or fraud into the houfe of another, and turns, or at least keeps, him or his fervants out of poffeffion. Diffeifin of incorporeal hereditaments cannot be an actual dispossession; for the fubject itself is neither capable of actual bodily poffeffion, nor difpoffeffion: but it depends on their respective natures, and various kinds; being in general nothing more than a difturbance of the owner in the means of coming at, or enjoying them. With regard to freehold rent in particular, our antient law-books f mention five methods of working a diffeifin thereof: 1. By enclofure; where the tenant fo encloseth the houfe or land, that the lord cannot come to distrein thereon, or demand it : 2. By foreftaller, or lying in wait: when the tenant befetteth the way with force and arms, or by menaces of bodily hurt affrights the leffor from coming: 3. By refcous; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the diftrefs at fuch time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All, or any of these circumstances amount to a diffeifin of rent; that is, they wrongfully put the owner out of the only poffeffion, of which the fubject-matter is capable, namely, the receipt of it. But all thefe difleifins, of hereditaments incorporeal, are only for at the election and choice of the party injured; if, for the fake of more eafily trying the right, he is pleased to suppose himself diffeifed 8. Otherwife, as there can be no actual difpoffession, he cannot be compulsively disseised of any incorporeal hereditament. AND fo too, even in corporeal hereditaments, a man may frequently fuppose himself to be diffeifed, when he is not fo in fact, for the fake of entitling himself to the more easy and commodious remedy of an assise of novel diffeifin, (which will be explained in the fequel of this chapter,) instead of being & Litt. 588, 589. e Co. Litt. 181. Finch. L. 165, 166. Litt. § 237, F. driven to the more tedious procefs of a writ of entry". The true injury of compulfive diffeifin feems to be that of difpoffeffing the tenant, and fubftituting onefelf to be the tenant of the lord in his ftead; in order to which in the times of pure feodal tenure the confent or connivance of the lord, who upon every defcent or alienation perfonally gave, and who therefore alone could change, the seifin or inveftiture, feems to have been confidered as neceffary. But when in procefs of time the feodal form of alienations wore off, and the lord was no longer the inftrument of giving actual feifin, it is probable that the lord's acceptance of rent or fervice, from him who had difpoffeffed another, might conftitute a complete diffeifin. Afterwards, no regard was had to the lord's concurrence, but the difpoffeffor himself was confidered as the fole diffeifor: and this wrong was then allowed to be remedied by entry only, without any form of law, as against the diffeifor himfelf; but required a legal process against his heir or alienee. And when the remedy by allife was introduced under HenryII, to redress fuch diffeifins as had been committed within a few years next preceding, the facility of that remedy induced others, who were wrongfully kept out of the freehold, to feign or allow themselves to be diffeifed, merely for the sake of the remedy. THESE three fpecies of injury, abatement, intrufion, and diffeifin, are fuch wherein the entry of the tenant ab initio, as well as the continuance of his poffeffion afterwards, is unlawful. But the two remaining fpecies are where the entry of the tenant was at firft lawful, but the wrong confifts in the detaining of poffeffion afterwards. 4. SUCH is, fourthly, the injury of difcontinuance; which happens when he who hath an estate-tail, maketh a larger eftate of the land than by law he is entitled to do 1: in which cafe the eftate is good, fo far as his power extends who made it, but no farther. As if tenant in tail makes a feoffment in fee-fimple, or for the life of the feoffee, or in tail; all which are beyond his power to make, for that by the common law extends no farther than to make a lease for his own life; in fuch cafe the entry of the fcoffee is lawful during the life of the feoffor; but if he retains the poffeflion after the death of the feoffor, it is an injury, which is termed a difcontinuance; the antient legal eftate, which ought to have furvived to the heir in tail, being gone, or at leaft fufpended, and for a while difcontinued. For, in this cafe, on the death of the alienors, neither the heir in tail, nor they in remainder or reverfion expectant on the determination of the eftate-tail, can enter on and poffefs the lands fo alienated. Alfo, by the common law, the alienation of an husband who was feifed in the right of his wife, worked a difcontinuance of the wife's eftate: till the ftatute 32 Hen. VIII. c. 28. provided, that no act by the husband alone shall work a difcontinuance of, or prejudice, the inheritance or freehold of the wife; but that, after his death, fhe or her heirs may enter on the lands in quellion. Formerly alfo, if an alienation was made by a fole corporation, as a bifhop or dean, without consent of the chapter, this was a difcontinuance. But this is now quite antiquated by the difabling ftatutes of 1 Eliz. c. 19. and 13 Eliz. c. 10. which declare all fuch alienations abfolutely void ab initio, and therefore at prefent no difcontinuance can be thereby occasioned. 5. The fifth and laft fpecics of injuries by oufter or privation of the freehold, where the entry of the prefent tenant or poffeffor was originally lawful, but his detainer is now become unlawful, is that by deforcement. This, in it's most extenfive fenfe, is nemen generaliffimum; a much larger and more comprehenfive expreffion than any of the former: it then fignifying the holding of any lands or tenements to which another perfon hath a right . So that this includes as well an abatement, an intrufion, a diffeifin, or a discontinuance, as any other fpecies of wrong whatsoever, whereby he that hath right to the freehold is kept out of poffeffion. But, as contradiftinguished from the former, it is only fuch a detainer of the i F. N. B. 194. k Co. Litt. 277. freehold, freehold, from him that hath the right of property, but never had any poffeffion under that right, as falls within none of the injuries which we have before explained. As in cafe where a lord has a feignory, and lands efcheat to him propter defectum fanguinis, but the feifin of the lands is withheld from him: here the injury is not abatement, for the right vefts not in the lord as heir or devifee; nor is it intrufion, for it vefts not in him who hath the remainder or reverfion; nor is it dif fifin, for the lord was never feifed; nor does it all bear the nature of any species of difcontinuance; but, being neither of thefe four, it is therefore a deforcement. If a man marries a woman, and during the coverture is feifed of lands, and alienes, and dies; is diffeifed, and dies; or dies in poffeffion; and the alienee, diffeifor, or heir, enters on the tenements and doth not affign the widow her dower; this is also a deforcement to the widow, by withholding lands to which the hath a right". In like manner, if a man leafe lands to another for term of years, or for the life of a third person, and the term expires by furrender, efflux of time, or death of the refluy que vie; and the leffee or any ftranger, who was at the expiration of the term in poffeffion, holds over, and refufes to deliver the poffeffion to him in remainder or reverfion, this is likewise a deforcement". Deforcements may alfo arise upon the breach of a condition in law; as if a woman gives lands to a man by deed, to the intent that he marry her, and he will not when thereunto required, but continues to hold the lands this is fuch a fraud on the man's part, that the law will not allow it to deveft the woman's right of poffeffion; though, his entry being lawful, it does deveft the actual possession, and thereby becomes a deforcement °. Deforcements may also be grounded on the difability of the party deforced as if an infant do make an alienation of his lands, and the alienee enters and keeps poffeffion; now, as the alienation is voidable, this poffeffion as against the infant (or, in cafe of his decease, as against his heir) is after avoidance wrongful, and therefore a deforcement P. The fame happens, when one of nonfane memory alienes his lands or tenements, and the alienee enters and holds poffeffion, this may also be a deforcement. Another fpecies of deforcement is, where two perfons have the fame title to land, and one of them enters and keeps poffeffion against the other: as where the anceftor dies feifed of an eftate in fee-fimple, which defcends to two fifters or coparceners, and one of them enters before the other, and will not fuffer her fifter to enter and enjoy her moiety; this is alfo a deforcement. Deforcement may also be grounded on the non-performance of a covenant real: as if a man, feised of lands, covenants to convey them to another, and neglects or refuses so to do, but continues poffeffion against him; this poffeffion, being wrongful, is a deforcement: whence, in levying a fine of lands, the perfon, against whom the fictitious action is brought upon a fuppofed breach of covenant, is called the deforciant. And, laftly, by way of analogy, keeping a man by any means out of a freehold office is construed to be a deforcement; though, being an incorporeal hereditament, the deforciant has no corporal poffeffion. So that whatever injury (withholding the poffeffion of a freehold) is not included under one of the four former heads, is comprized under this of deforcement. THE feveral fpecies and degrees of injury by oufter being thus afcertained and defined, the next confideration is the remedy: which is, univerfally, the reftitution or delivery of poffeffion to the right owner; and, in fome cafes, damages alí。 for the unjust amotion. The methods, whereby these remedies, or either of them, may be obtained, are various. I. THE first is that extrajudicial and fummary one, which we flightly touched in the first chapter of the prefent book', of entry by the legal owner, when another perfon, who hath no right, hath previouly taken poffeffion of lands or tenements. In this cafe the party entitled may make a formal, but peaccable, entry thereon, declaring that thereby he takes poffeffion; which notorious act of ownership is equivalent to a feodal inveftiture by the lord : or he may enter on any 4 Finch. Ibid. F. N. B. 202. t See pag. 5. See book II. ch. 14. pag. 209. part |