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the person ejected might on a writ of right, c«.tnt on his seisin and recover the land. That main is distinct from possession is clear from Taylor v. Horde, which states that a mere entry does not operate us a disseisin to make a good tenant of the freehold,'
Lawrence,J. "That only means that trespass is not disseisin."
Nolan, "fn Co. Lift. 249, cases are put of disseisin of the freehold which shall be no ouster of the termor, Lift. 411, a; so if I let unto a man certain lands for the term of twenty years, and another disseisetli me, and oust the termor and die seised, and the lands descend to his heir, I may not enter; and yet the lessee for years may well'enter, because that by bis entry he doth not oust the heir, who is in by descent, of the freehold which is descended unto him; hut only claitneth to have the lands for term of years, which is no expulsion from the freehold of the heir, who is in by descent. Which sufficiently shews, that there may be a claim of the freehold, notwithstanding the term." ''
Lord Ellenborough, C. J. " There is no disseisin unless you claim to be seised as tenant to the lord in the place of the person who is disseised."
Nolan. "Seisin is said in Taylor v. Horde,* to be a technical term to denote the completion of that investiture, by which the tenant was admitted to the tenure, and without' which lib freehold could pass." And it is laid down' that recovery in ejectment is no disseisin.f So if the lord eriter for the purpose of being Seised, he does not disturb the' possession of his tenan t further than is consistent with the nature of the term.
Formerly it would operate as an ouster of the lessee; 1006.
but now hewiil be entitled to possession under his jjOK dt.lu_
Lord E..LENBorough, C. J. "Disseisin is a persdna! tres.K.ss, a tortious ouster of seisin; it is therefore a tie puss on the person entitled to the freehold «state. Can you shew, that the lessor of-the pluiiitijf couldhaveentered without being a trespasser on the termor, who has a title to hold under the ancestor; for the law does not require a man to do that which would make him a trcspas ser."
Nolan. "The old law might require that ho «hould; for he would be it wrong doer in not entering to give the lord investiture of the feudal tenure, hi the time of Charles It. before the feodal tenures were abolished, a termor was considered merely as a covenanted bailitf. For this purpose he must be so considered still. And to this day, in copyholds there is a symbolical delivery of the lauds by the verge,and every lime a man is so invested, he is not prevented by u long lease from taking the investiture of the tenure ; so, ia the case of an incumbent of church lauds which ■ire leased for a long term in pursuance of the enabling statutes.; when the incumbent dies, the investiture of die freehold, by the investiture of the parson in the cburch, is effected, notwithstanding the lease."
Lord Ei.LENBonouoH, C.J. "The investiture of tlie incumbent is by giving him the key and handle of the church-door, which gives the whole parsonage. You must shew that the lessor of ihc jtfisobligcti to distrain, or to re-enter for non-payment of reutjj
Nolan. "It must he admitted that this argument is directly against the case of Orretl v, Mudelcx; but I must contend, that he muit enter or receive the
rentsand profits. Then lie mightbe put tobring a writ of entry or of right of such a kind, in which the judgment is only quod oblinet seisinam suam, and which will not affect the possession." He then cited several in which the party did not claim title to the possession. " If any Other construction is given to the statute than that which compels the freeholder to recover his seisin within twenty years, notwithstanding an outstanding term, a party will be absolutely deprived of his writ of right, by such a term being granted for seventy years only. For, if this is a bar to recovering seisin by writ of entry during the time of the lease, the demandant cannot' say that he was seised during that time."
Le Blanc. "That is, supposing the freeholder not to be seised by the possession of his ancestor's lessee, or by the receipt of the rents and profits."
Nolan. "Since the statute of attornments, the receipt of the rents and profits will be seisin; but where there is no receipt of the rents and profits, the tenant cannot demand upon a seisin in himself, if this rule is to apply that the entry is to be suspended during the term. And in most cases of a writ of right the demandant avers a seisin by taking the esplees. If it be necessary to make an entry for the purpose of maintaining his right to the land, the lessor of the plaintiff might justify upon that ground, in an action of trespass. The taking of the rents and profits is an adverse possession, and has been so held in all the cases which have been decided upon the question of whether there has been an adverse possession between two joint-tenants or two tenants in common; Doe d. Fisher v. Taylor."*
Lawes, in reply. "The doctrine of a descent tol
ling the entry does not apply either to the case of a iao6. copyhold or to that of a will where the party claims DoI. d(Mn> under a devise, because there he has no remedy but by Coos entry; and for the same reason which applies to copy- Danvirs. holds, there can be no descent lolled of customary freeholds, because the interest of the lord is concerned."
The Solicitor General upon the second argument, for the plaintiff, after noticing the objections taken byNoLAN as above ; "Whether this be customary freehold or copyhold land is very little material to this question. Biackstone, in his treatise upon the subject, considers that the freehold is in the lord, and that they are only privileged copyholds, and of the same opinion is Br act on, lib. 2, c. 8, s. <2, who says, Non habet potestatem transferendi, cum liberum tenementum iiou huhtt, sed dominus: and in the case of Stephenson v. Hill* which was a case of customary tenement held secundum consuetudinem manerii, the court held that the freehold was in the lord, and that the tenatit could not prescribe as a freeholder; and Lord Mansfield says, 'What signifies the custom; clearly the freehold is in the lord, and it is even stronger than the case of copyholds.' Here, if any proof was necessary, the lease itself was made with a license from the lord, who could only be required to give his licence in respect of the freehold being in him. Then, as this is property which passes by surrender and will, it is clearly not within the statute of frauds, so as to require attestation by three witnesses."
Lord Ellenborough, C. J. observed upon the point, whether it was a customary freehold or a copyhold, that it might be immaterial, for it might be
isois like a copyhold for this purpose of passing by the surDoT^m. render.
Cook The Solicitor Genkral. "It is said that, nlD.»»(»iin. though this will is in writing, it must be signed by the party, because it is a declaration of trust; but a declaration of trust is where the legal estate is iu the trustee, and the equitable estate is in him who creates or declares the trust, but this will passes, not merely the trust or equitable estate, but the legal interest."
Lawrench, J. "In Tuffntll v. Page, in Barnardistons reporl, Lord Hardnieke says, ' So far indeed is necessary that it should be in writing; but if it is in writing and signed by the party, that is sufficient."
The Somcitor-gknkrai.. "That is a peculiar mode of expression, which does not plainly intimate that it should necessarily be signed by the party."
Lawrence, J. "Can you conceive that the statute meant to say, that if a man takes under a declaration of a trust, he must have a signature of the party; but, if betakes under a will with trusts, he need not. In Doe d. Dancer v. Tempest, the question was, whe- < ibex copyholds, purchased after the making of a will, passed by a codicil republishing the will which was not signed by the party. It was apparently held that it would not; although Lord Keiiyon, C.J. recommended the parties to compromise. The case occurred hi iT'J'i, Mr. Scott was on the one side, and ihe Solicitor General (then Mr. (juji/f) for the other. Lord Krityou*4 iiote upon the case is, that the argument on the 7th section of the statute of frauds is .strong on the parol acknowledgment of a prior declaration in writing, that the object of the statute was to obviate the misclfiel's arising from the evidence of loose conversation.* In the Attorney (icncral v. Andrerts,\ Lord llardaickc
* Mr. Tairaiit was mentioned as tlx- attorney in iherase, from ivliom possibly some inlurmutini) might be acquired a» to the papers. ■[ I I'ctri/.Zi}.