Of Writs of Entry. rally. A RIGHT of entry is where a man, who has the possession of Of entry genelands, is disseised, or ousted, or having a right to the possession, is kept out of the possession, in which case he has the right of peaceably making an actual entry upon the lands, or of bringing an ejectment or a real action, to restore himself to the possession. If the lands lie in several towns in the same county, and he In what manner who has a right of entry enters into parcel in one town in the to be made. name of the rest, this is a sufficient entry into the rest (a); but, if the lands lie in several counties, there must be several entries (b), and, if a man is disseised by the same disseisor of two several acres at two several times in one county, and enters into one of them in the name of both, this revests both the acres; but, if he had only entered generally into one acre, without saying in the name of both, that acre alone would have been revested. (c) The rule is, that the entry of a man to recontinue his inheritance must ensue his action for the recovery of the same. Therefore, if three men disseise another, severally, of three several acres of land in one county, and the disseisee enters into one acre in the name of the rest, this is only good for the acre entered into; for every disseisor has a several freehold, and the disseisee must bring several actions. (d) So if a man is disseised of three acres of land, and the disseisor leases these three several acres to three several men for their lives, the entry of the disseisee upon one of the lessees is not good for the rest, but, if the disseisor had let these three several acres to three several men for years, an entry into one in the name of all would revest the whole. (e) There is a distinction (f) with regard to the efficacy of an entry upon part, between a right of entry after a disseisin, &c., (a) Litt. s. 417. Vin. Ab. Entry (B). (4) Co. Litt. 252, b. Perkins, s. 229. Br. Ab. Entré Cong. 35. (c) Co. Litt. 252, b. Perkins, s. 232. (d) Co. Litt. 252, b. 1 Rol. Ab. 738. (e) Co. Litt. 252, b. Dyer, 337, b. margin. Holland v. Hopkins, 4 Leon. 8. (f) Co. Litt. 252, b. 15, b. Of entry gene rally. To the use of another. and a title of entry by force of a condition, for, if a man disseises another of one acre at one time, and afterwards of another acre in the same county at another time, an entry into one in the name of both is good; but, if a man enfeoffs another of one acre upon condition, and, at another time, enfeoffs the same man of another acre in the same county upon condition also, and both the conditions are broken, an entry into one acre in the name of both is not sufficient, because the feoffor has no right to the land, nor any action to recover the same (a), but a bare title, and, therefore, several entries must be made in respect of the several conditions: but, if the land be all subject to one condition, an entry into part in the name of the whole is good, although the parcels be several, and in several towns. Where the possession is in no one, and the heir having the freehold in law, makes a general entry, not expressly in the name of the whole, such entry will reduce all the lands into his actual possession, although they lie in several parcels. (b) The mere act of entering upon the land is not sufficient to vest the possession in the party entering, but he must enter with that intent. (c) If a man, whether an infant, or of full age, has a right of entry into lands, a stranger may enter into the lands in his name, and to his use, and this will vest the lands in him who has the right of entry, without any commandment precedent, or agreement subsequent ;, but, if there is a fine levied with proclamations according to the statute, a stranger, without a commandment precedent, or agreement subsequent within the five years, cannot enter, so as to avoid the fine, but a subsequent assent within the five years is sufficient. (d) A guardian by nurture, or in socage, may enter in the name of his ward, without any command or assent. (e) So also the remainderman and reversioner, and lord of a copyhold, may enter in the name of the tenant for life, for years, or by copy, or those particular tenants may enter (a) No real action lies in such a case, and, although ejectment may be brought without an actual entry, that is only by reason of the confession of an entry. After an actual entry made, or recovery in ejectment, if he who has entered or recovered be disseised, he may have an assise, or other real remedy. (b) Co. Litt. 15, b. Watk. on Desc. 46. (d) Br. Ab. Seisin, 50. Co. Litt. 258, a. Lord Audley's Case cited, 9 Rep. 106, a. Cro. Eliz. 561. Moor, 450, S. C. Fitchett v. Adams, 2 Strange, 11£8. Watk, on Desc. 56, 57. (e) Co. Litt. 15, a. Newman v. Newman, 3 Wils. 516. Margaret Podger's Case, 9 Rep. 106, a. Watk, on Desc. (c) Co. Litt. 245, b. Plowd. 92, 93. 48. Of entry in the name of the reversioner, remainderman, or lord, without any command or assent, on account of the privity between those generally. persons, and may thus avoid a fine levied with proclamations. (a) As an actual entry is not necessary before bringing a real action to avoid a fine levied with proclamations (b), the law with respect to such entry, will be stated in a subsequent part of the present volume, in treating of the action of ejectment. As it can never be necessary to resort to a writ of entry, Entry tolled by where a right of entry exists, and an action of ejectment may be descent. brought, it will be material to consider in what cases a right of entry is tolled or taken away by descent. (c) In ancient times, if a disseisor had continued long in possession, or if the feoffee of the disseisor had remained a year and a day in possession, the entry of the disseisee was in both cases tolled. (d) This law, however, soon became obsolete, but it was still held that where a man comes in by disseisin, abatement, or intrusion, or by the feoffment, gift, &c. of a disseisor, and dies seised, the descent to his heir will take away the entry of him who has right. (e) A descent either in fee or in tail will toll the entry (f), into all corporeal hereditaments which lie in fivery (g), and if the person who dies seised had only a seisin in law, it is sufficient (h); and it is the same thing whether the land descends to the heir lineal or collateral. (¿) But a descent does not take away an entry, if he who died seised had only an estate for life. (k) So if a disseisor leases to B. and his heirs, for the life of A., and B. dies seised, and his heir enters; for the heir takes only to prevent an occupancy. (7) So if a man disseises the tenant for life of the king; for he gains nothing but an estate for the life of the lessee. (m) A descent does not take away an entry where a man dies seised (a) Margaret Podger's Case, 9 Rep. 106, a. But quære as to tenant for life. Co. Litt. 250, b. (5) 1 Saund. 261, a, note. (c) If the doctrine of Lord Mansfield, in Atkins v. Horde, 1 Barr. 60, be correct, it cannot be necessary to resort to a writ of entry in consequence of a descent cast, for the plaintiff may elect not to be disseised, and unless there be a disseisin, the descent cannot toll the entry. 1 (d) Bracton, 162, b. 163, a, b. Reeves' Hist. 323. Co. Litt. 237, b. Gilb. Ten. 43. (e) Co. Litt. 237, h. Com. Dig. De- (ƒ) Litt. s. 385, 386. G Of entry generally. When tolled. Incorporeal hereditaments. The ancestor and heir must of a reversion or remainder, after an estate of freehold (a); but if a disseisor makes a lease for years, or if the land is extended upon a statute, judgment, or recognizance, and the disseisor dies seised, this will toll the entry, for the lessor or conusor is seised of the fee and freehold. (b) If a disseisor leases for his own life and dies, though the fee and freehold descend to his heir, yet the disseisor only died seised of the reversion, and therefore the descent is not tolled. (c) The descent of incorporeal hereditaments which lie in grant as an advowson, rent, or common in gross, will not take away a right of entry (d), because no disseisin can be committed of them, but at the election of the owner. If the ancestor does not die seised of the same estate which the heir has by descent, the entry is not taken away; as if a be seised of the disseisor makes a gift in tail, and the donee discontinues in fee, and then disseises the discontinuee and dies seised, the issue in tail is in by remitter, and not of the estate in fee, of which the father died seised. (e) same estate. Escheat and succession do not toll the entry. The descent diate to toll an If the land escheats upon the death of the disseisor or his feoffee without issue, this will not take away the entry, for there is no descent. But if the lord by escheat dies seised, and this land descends to his heir, the entry is gone. (f) And where the tenements come to another by succession, as in the case of bishops, abbots, priors, deans, parsons, and other bodies politic, a dying seised shall not deprive a man of his entry. (g) The descent must be immediate, thus if a woman disseisoress must be imme- takes husband, has issue, and dies seised, and the husband is tenant by the curtesy and dies, the descent to the issue does not toll the entry (h); and if a disseisor dies seised, his wife privement enseint, the descent to the son afterwards born, does not take away the entry. (¿) entry. Where the de scent is avoided. Whenever the descent is avoided, which may happen in various ways, the disseisee is remitted to his right of entry, as where the heir, after a descent, enters and endows his mother, as to this third part the seisin of the heir is avoided ab initio, and the descent defeated. (a) So if the disseisor makes a feoffment in fee upon condition, and the feoffee dies seised of such estate, now the disseisee cannot enter; but if the condition is broken and the disseisor enters, the disseisee may enter upon him. (b) And so if a disseisor, after a descent, acquires the same land again by deseent, or purchase of an estate of freehold, the right of entry is revived; as if a disseisor enfeoffs his father, who afterwards dies seised, and the land descends to the disseisor as his heir (c); or if he enfeoffs his grandfather, and the land descends to his father and afterwards to himself. (d) So if the father, after the descent, leases the lands to his son, the disseisor, pur autre vie. (e) If a disseisor makes a gift in tail, and the donee has issue and dies seised, the entry of the disseisee is taken away; but if the issue die without issue, whereby the estate tail is spent, the entry of the disseisee is revived, and he may enter upon him in reversion or remainder. (ƒ) Of entry generally. When tolled. An entry is not tolled where he who had the right was an In case of infant at the time of the descent (g); but if he had not a right infancy. of entry at the time of the descent, as if a man dies, his wife privement enseint, and B. abates and dies seised, and a son is born, he shall be bound by the descent. (h) And so an infant shall be bound by a descent from the king. (i) An infant after a descent cast during his nonage, need not enter immediately upon attaining his full age, but ought not to let another descent be cast after his full age and before entry. (k) When a feme covert is disseised by one who dies seised during Or of coverture. the coverture, her entry is not tolled after the death of her husband. (1) But if a woman of full age is disseised and afterwards marries, a descent during the coverture tolls her entry, for it is her own. folly that she did not enter before marriage, and that she took a (a) Litt. s. 393. Com. Dig. Descent, (D. 5). Watk. on Descents, 65. Gilb. Ten. 27. Vin. Ab. Descent, (N. 9). (b) Litt. s. 409. Gilb. Ten. $3. (c) Litt. s. 595. Gilb. Ten. 27, 28. (d) Co. Litt. 258, b. (e) Ibid. (S) Ibid. (g) Litt. s. 402. Gilb. Ten. 28, 29. Vin. Ab. Descent, (N. 7). (h) Co. Litt. 245, b. (i) Co. Litt. 246, a. (k) Chudleigh's Case, 1 Rep. 140, a. Co. Litt. 245, b. note (1). (1) Litt. s. 403. Com. Dig. Descent, (D. 8). Gilb. Ten. 32. |