Of entry generally. When tolled. Non compos, in Title of entry for condition broken. Entry of de Abatement by younger son. husband who would not make an entry. (a) So if a feme covert is disseised, and her husband dies, and before a descent she takes another husband. (b) A descent during the coverture bars the entry of the husband, although the wife after his death may enter. (c) Where a person is non-sane at the time of a descent cast, though it is said that his own entry is tolled, because he cannot disable himself, yet after his death his heir may enter. (d) And if a man is imprisoned, and is disseised, and the disseisor dies seised, the disseisee still being in prison, his entry is not tolled. (e) If a man is out of the realm at the time of a disseisin done to him, and a descent is cast, he being still out of the realm, he may enter on his return. (ƒ) A descent does not toll a title of entry for a condition broken, &c. and the reason is, that if the right of entry were taken away, the party would have no other remedy. (g) The entry is preserved though the feoffee upon condition is disseised, and the disseisor dies seised, and the land descends to his heir before the condition broken. (h) So a descent does not toll a title to enter for an alienation in mortmain. (¿) So also a descent cast, will not take away the entry of a devisee not tolled. visee, for he would otherwise be without remedy. (k) If a younger son enters by abatement after the death of his father, and dies seised, the descent does not toll the entry of the eldest son, who claims by the same title, for it shall be intended that the younger son claimed as heir; and this is also the case although the younger son is only of the half blood (), or if he enters by intrusion. (m) But if the younger son makes a feoffment in fee and the feoffee dies seised, this descent shall toll the entry of the eldest (a) Co. Litt. 246, a. (b) Carter v. Tash, 1 Salk. 241. (d) Litt, s. 405. Co. Litt. 247, a. (e) Litt. s. 436. post, p. 93. (f) Litt. s. 459, 440. Co. Litt. 260, b. 261, a. (g) Litt. s. 391. Co. Litt. $59, b. Owen, 141; for no real action lies in such case. (h) Litt. 392. Co. Litt. 340, b. (i) Co. Litt. 240, b. Seymour's Case, 10 Rep. 98, b. (k) Co. Litt. 240, b. The writ ex gravi querela lay only where lands were devisable by custom. Co. Litt. 111, a. F. N. B. 198 L. and it should seem not to extend to lands devisable by the statute of wills, Matthewson v. Trott, Owen, 141. (1) Litt. s. 396. Co. Litt. 242, b. (m) Ibid. 243, a. son, because the privity of blood fails. (a) And if after the death of the father the eldest son enters, and the younger son disseises him, and has issue, and dies seised, this will toll the elder son's entry, because it cannot be intended that by this wrongful act, the younger son claims as heir to his father. (b) So also if the younger son enters when the father had made a lease for years, for the possession of the tenant for years is the possession of the eldest son. (c) If one parcener enters, claiming the whole estate, it does not toll the entry of the other parcener, because they claim by one and the same title. (d) Of entry generally. When tolled. Parceners. tolled. If there is lessee for years, and the lessor is disseised, and the Entry of lessee termor ousted, and the disseisee dies seised, and the lands de- for years not scend to his heir, in this case although the entry of the lessor is taken away, yet the termor may enter, because his entry does not disturb the freehold, which is in the heir of the disseisor. (e) And so in the case of tenant by statute merchant, or elegit, who has only a chattel interest. (f) If the termor enters before the descent, he revests the freehold of the disseisee, who has the right of possession to the immediate freehold; but if he re-enters after the descent, then he can only hold in the name of the freeholder who has the present right of possession, viz. the heir of the disseisor. (g) The effect of a descent cast may be defeated by the act of the disseisee in making claim to the lands of which he has been disseised; for if a man is disseised, and the disseisor continues in possession for many years, without any claim by the disseisee, yet if the latter makes his claim at any time before the death of the disseisor, it shall save his entry, for a year and a day after such claim made, to be computed from the day of the claim inclusive, notwithstanding any descent cast in that time; but if he suffers the year and day, after the claim made, to elapse, a descent afterwards will bind him. (h) A descent from a feoffee of the disseisor does not take away the entry of him who makes continual claim. (¿) (a) Co. Litt. 242, b. Gilb. Ten. 29. (d) Litt. s. 398. Fisher v. Prosser, Cowp. 218. Small v. Dale, Hob. 120. Gilb. Ten. 29. Watk. Desc. 52. (e) Litt. s. 411. Gilb. Ten. S4. (f) Co. Litt. 249, a. (g) Gilb. Ten. 35. (h) Litt. s. 427, 428, &c. Co. Litt. 255, a. Com. Dig. Claim, (A. 1). Bac. Ab. Descent, (I. 3). Gilb. Ten. 37. (i) Co. Litt. 251, a. Continual claim. Of entry generally. Continual claim. How made. Continual claim has the same effect as an entry; and the continuance in possession of the disseisor is a new disseisin; if, therefore, the donee in tail of the disseisor is in possession at the time of the claim made, and after such claim made continues his occupation of the lands, this is a fresh disseisin, and consequently the tenant in tail acquires a new estate in fee. (a) In making continual claim, a man ought to go to the land, or parcel of it, if he dare (b), and make his claim upon the land (c); but if he dare not for fear of death, battery, mayhem, or imprisonment, he ought to go as near to the land as he dare, and make his claim. (d) If a person who has a right of entry commands his servant to make claim, and the servant goes to the land and makes the claim, it is sufficient, for he does all that his master ought to do in such case. And if the master dare not go nearer the land than D. and commands his servant to go to D. and make claim, and the servant does so, this also is sufficient. But if the master, being in good health, commands his servant to make the claim, who dares not for fear of death enter upon the land, but makes claim as near thereto as he dares, this claim is void, for the servant has done less than he was expressly commanded to do. (e) Though if the master was languishing or decrepid, it would be otherwise. (f) Continual claim ought to be made by him who has title to enter. (g) And if lands are let for life, remainder for life, remainder in fee, and tenant for life aliens in fee, and the remainderman for life makes continual claim before the death of the alienee, and then the alienee dies seised, and the remainderman for life dies likewise without any entry; yet in this case, he in the remainder in fee may enter by virtue of the continual claim made by the remainderman for life; for since the efficacy of this continual claim, if there had been a subsequent entry made by the remainderman for life, would have extended to the remainder in fee by revesting that too, it is but reasonable to allow the remainderman in fee a power of entry under such continual claim, especially since by reason of the intermediate remainder he could (a) Litt. 8. 429. (b) Litt. s. 421. (c) Ford v. Grey, 1 Salk. 285. 6 Mod. 44, S. C. (d) Litt. s. 419. Co. Litt. 253, b. a. (e) Litt. s. 433, 435. Co. Litt. 259, (f) Litt. s. 434. (g) Litt. s. 416. not himself make continual claim. (a) If tenant for years, by elegit, &c. is ousted, and he in reversion disseised, the latter may enter to make his claim, though as to the taking of the profits such entry is not lawful during the term. (b) If the father is disseised and there is a claim by him, and a descent cast in his lifetime, his heir may enter; but it is otherwise if the descent is cast in the son's time. (c) Of entry generally. Continual claim. By statute 32 Hen. 8, c. 33, it is enacted, that except a Stat. 32 H. 8. disseisor has had the peaceable possession of the land, &c. whereof he shall die seised, by the space of five years next after the disseisin, &c. without entry or continual claim, &c. such dying seised &c. shall not take away the entry of the person or persons lawfully entitled. After the five years the disseisee, if he intends to preserve his right of entry, must make continual claim as at common law. (d) As this statute is penal in its enactments, it has been said not to extend to abators or intruders (e), and it does not extend to a feoffee of a disseisor. (ƒ) The successors of a body politic are within the benefit of this statute. (g) If a man makes a lease for life, and the lessee for life is disseised, and the disseisor dies within five years, the lessee for life may enter; but if he dies before entry, it is said that the entry of him in the reversion is not lawful, because his entry was not lawful upon the disseisor at the time of the descent, as the statute requires. Though if the lessee for life had died first, and then the disseisor had died seised, he in the reversion would be within the remedy of the statute, because he had title of entry at the time of the descent, as the statute requires, although the disseisin was not immediate to him; and the same law of a remainder. (h) It seems that a right of entry is not devisable. (i) (a) Litt. s. 416. Co. Litt. 252, a. Bac. Ab. Descent, (I. 1). (b) Co. Litt. 230, b. quære as to reversioner upon estate for life making claim, Co. Litt. 250, b. (c) Co. Litt. 250, b. (d) Co. Litt. 238, a. (e) Ibid. and by Saunders counsel in Wimbish v. Talbois, 1 Plow. Com. 47. (f) Co. Litt. 238, a. (i) Atty. Geul. v. Vigor, 8 Ves. 282. 598. w.its of entry in general. Various kinds. The degrees. Anciently, it appears to have been necessary in every case, where a man was deprived of his power of entry, to resort to a writ of right. (a) In Glanville's time the writ of entry was unknown, and the earliest mention which we meet with of this possessory remedy is in the third year of Henry 3. (b) It has been supposed that the writ of entry was first introduced soon after the time of Glanville (c), but at this period it could only be brought within the degrees, that is where the land by descent or alienation had not been transferred more than twice. By the statute of Marlbridge, c. 30, the writ of entry in the post was given in cases of alienation beyond the degrees (d); but it lay at common law against such persons as came in originally in the post as intruders, &c. (e) Writs of entry are of various kinds, according to the nature of the injuries which they are intended to redress, as, 1, Writs of entry sur disseisin, where a disseisin has been done to the demandant, or to some of his ancestors. 2, Writs of entry sur alienation, where the tenant of a particular estate wrongfully aliens it, which is a deforcement to the reversioner, &c. or formerly where a husband seised in right of his wife wrongfully aliened her estate, which was then a discontinuance; and so when an abbot without the assent of his chapter aliened, which was also a discontinuance. 3, Writs of entry sur intrusion, where, on the expiration of a preceding estate of freehold, a stranger wrongfully intrudes, which is a deforcement to the reversioner. A fourth class of writs of entry may be added, viz. writs of entry sur abatement, where, on the death of the ancestor, a stranger abates and deforces the heir. In this case, the proper remedy for the heir was formerly an assise of mortd'ancestor, or a writ of ayel, &c. There does not, however, appear to be any objection to resorting to a writ of entry in this case, and indeed it may be necessary to do so, if, as it has sometimes been supposed (ƒ), an assise of mortd'ancestor is no longer maintainable. (g) As the form of the writ depends upon the number of degrees which the tenant is distant from the original wrong-doer, it will be proper to state what is the nature of those degrees. The (a) Gilb. Ten. 47, 49. (b) Bracton, 219, a. (c) 1 Reeves' Hist. 349. (d) 2 Inst. 155. Gilb. Ten. 49. (f) 3 Bl. Com. 187. ante, p 77. (g) A writ of entry sur abatement was brought as late as the year 1795, by the Assignees of a Bankrupt. Smith v. Coffin, 2 H. Bl. 444. |