On fee simple conditional estate.

And now the said O demands against said P the possession of &c.; whereupon the appellant complains and says, that I O, late of &c., at &c., on &c., was seized of the demanded premises in fee simple; and being so seized thereof, there on the same day, made and duly executed his last will and testament in writing, and therein and thereby, among other things, devised the demanded premises to his son I O, as a fee simple conditional estate; and did devise and order, in and by the same will, that if the said I should die without leaving any child, lawfully begotten of his body, leaving M O, his brother, alive, that then the demanded premises should go to, and become the estate of the said M. And the said testator, there, on &c., died so seized as aforesaid, of the demanded premises; and the said I O, on the same day, entered upon the demanded premises, by force of the same will; and the same will, on &c., was duly proved and allowed; and the said I O thereupon became seized of the demanded premises, as of a fee simple conditional estate, according to the form of the devise aforesaid, and continued to be so seized thereof, until &c., at which time the said P entered, unjustly and unlawfully, and by fraud, upon the demanded premises. And the said I O thereafterwards, on &c., died, leaving no issue of his body lawfully begotten; by means whereof, and by force of the devise aforesaid, the right in and to the demanded premises descended and came to the said M in fee simple. And the said M there, on &c., died, leaving the appellant his only son and heir; by means whereof, the right in and to the demanded premises descended and came to him, the appellant, in fee; and he ought now to be in quiet possession thereof, accordingly; but the said S, on a disseizin which he committed against the said I O in his lifetime, hath entered and illegally continues to keep the appellant out of the same. SULLIVAN and DANE.

Writ of right upon a disseizin of ancestor.

To answer B and E, his wife, in her right, in a plea of land, wherein they demand against said D, one undivided moiety &c., as the right and inheritance of the said E; and thereupon they say, that one W, father of said E, was seized of the demanded premises, with the appurtenances in his demesne, as of fee and right, in a time of peace, and within forty years last past, by taking the profits thereof, to the

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yearly value of $—, and continued so seized until the said D thereafterwards, on &c., unjustly, and without judgment of law, entered into the same demanded premises, and thereof disseized the said W, who thereafterwards, on &c., died seized of the right in and to the demanded premises, with the appurtenances; from whom, thereupon, the said right descended and came to the said E, his daughter and heir, by virtue of the laws in such case made and provided; and she became seized thereof in fee; and the said B and E, in her right, ought now to have quiet possession of the same demanded premises; yet the said D unjustly withholds, &c. DANE.

REAL ACTIONS IN MASSACHUSETTS.

By the Revised Statutes of Mass., Chapter 101, Section 51, all Writs of Right, all Writs of Formedon, and all Writs of Entry, except the Writ of Entry allowed in that chapter, are abolished.

The next section, 52, of the same statute, contains the usual saving for the rights of minors, married women, persons insane, imprisoned or without the United States, who may bring any of the abolished actions within five years after their disability shall cease, subject to the former statutes of limitation, &c.

By the Writ of Entry, which is allowed, any estate in fee simple, fee tail, or for life, may be recovered unless when a different action is prescribed by law. Section 1 of the same statute.

Section 2. Prescribes the mode of declaring. declare on his own seizin, within twenty years last ing any particular day, alleging a disseizin by the ring a taking of the profits by himself.

The demandant may past, without specifytenant, without aver

Section 3. He then sets forth the estate, that he claims, in the premises, whether fee simple, fee tail, or for life, and if for life, whether for his own life or for the life of another, without setting forth the original gift, &c. or other conveyance or title under which he claims.

Section 4. By this section a mere right of entry is made sufficient proof of an actual seizin; but this right of entry is made essential and indispensable to his recovery.

Section 5. No descent or discontinuance takes away any right of entry or of action for the recovery of real estate.

Section 6. Any person in possession, claiming a freehold estate, may be considered a disseizor, &c.

Section 7. If the person in possession, though claiming an estate less than freehold, shall have actually ousted the demandant, he is disseizor at the demandant's election.

Section 8. Makes a right of entry equivalent to an actual entry, &c.

Under this last section, if A makes an estate to B, on condition, and

626

REAL ACTIONS IN MASSACHUSETTS.

the condition is broken, shall A maintain a writ of entry sur disseizin, without an entry? The entry at common law is necessary to enable A to take advantage of the forfeiture. Until he enters, B's estate, though defeasible, is not defeated. Shall the mere bringing of the action, operate as an entry? If so, suppose A commences an action, and then discontinues; will the commencement of the action operate as an entry, so that, if A has the better title, he can maintain trespass against B, for subsequently retaining possession, &c. Quære.

Again; in order to recover, the demandant must be seized, but if so, then a right of entry, gives a seizin without actual entry. But, in the case last mentioned, if A has a right of entry for condition broken, and without actual entry, becomes seized, then either B's estate is defeated without entry, and so no action is necessary for A to recover his land, or he must make a false surmise in his writ, viz: that he was seized, when he was not seized. For, on the supposition, that bringing the action is equivalent to an entry, it cannot act retrospectively and cause him to have been previously seized.

Again; in the case of a condition broken, ought not the grantor to do some act, by which the estate should be re-vested in him, and by which the grantee should have notice, that the grantor intends to take advantage of the forfeiture, before bringing an action? The Legislature probably did not intend to go so far, as to enact that on the breach of a condition, the estate of the grantee should be divested and the grantor re-seized of the estate without further act, and whether he wished to take advantage of the breach or not; and however unlimited their authority may be supposed to be, they cannot legislate contrary to the fact, that a man was seized of an estate, when he was not. Perhaps it would be safer therefore, as it actually would be more technical, for the grantor to make an actual entry, before he brings his writ of entry, in cases where his title depends on a breach of condition.

Again; as the demandant is entitled to recover damages from the time when his title accrued, shall he recover damages from the time of the breach of the condition? This would seem unreasonable, for the tenant, after a breach of the condition, might continue in the occupation of the premises many years, supposing the grantor to have waived the breach, without notice from him that he intended to take advantage of it. But, if the damages are to be computed merely from the commencement of the suit, they will be almost merely nominal.

In the case of Poignard v. Smith, 6 Pick. 163, it was held, that a sheriff's deed of an equity of redemption, if the mortgagor was disseized at the time of sale, would give no seizin to the purchaser. Quare of this, because the mortgagor might have been disseized at election, and if so, why might not the purchaser, having all the mortgagor's rights transferred to him by the sheriff's deed, have a right also to consider him as not disseized? In that case the point was not suggested, and it was held that the demandant could not recover on his own seizin without an actual entry. But, this difficulty is obviated by making a right of entry equivalent to an actual entry; agreeably to section 8.

The following form is drawn with express reference to the Revised Statutes of Massachusetts.

Summon John Smith, of &c., merchant, to answer to Benjamin Smith, of &c., yeoman, &c., &c., in a plea of

land, wherein the said Benjamin demands against the said John, ten acres of land &c., situate &c., which the said Benjamin claims as his right and inheritance (as the case may be.) Whereupon the demandant says, that he was seized of the demanded premises in his demesne as of fee, (as the case may be,) within twenty years last past, until the said Johr. Smith unjustly and without judgment disseized him thereof.

NOTE. For the description of the demandant's estate, see ante, In troduction, Chapter 12. The statute seems to have abolished all dis tinctions in degree between the various Writs of Entry, and as it is made unnecessary to set forth the original title, under which the demandant claims, and which he might reasonably be supposed to know, a fortiori, he seems not to be required to set forth the tenant's title, with which he may be supposed to be unacquainted.

ON MORTGAGES.

As soon as a mortgage is executed, the mortgagee is entitled to the occupation of the land, if there is no stipulation in the mortgage to the contrary, and for the purpose of obtaining it may bring an action counting on his own seizin, as of fee, and in mortgage. 3 Mass. R. 138.

A similar action may be brought by the executors or administrators, or assignees of the mortgagee ad infinitum, and varying the count accordingly. 5 Mass. R. 240.

This action may also be brought against the assignees or grantees of the mortgagor, and indeed against any person in possession. 11 Mass. R. 216. Disclaimer is no plea. Because grounded on statutes. But if two closes are mortgaged to A, and the mortgagor afterwards conveys one of the closes to B, and the other to C, A must sue severally. 7 Mass. R. 355. So, if part of the land is conveyed to A and part to B.. 12 Mass. R. 474.

But why should a mortgagee, who finds three or four persons have entered on the mortgaged premises, be bound to know whether they claim or occupy jointly, or severally? Why should he be obliged to ascertain the limits of their respective claims? As the suit is in rem, why should the demandant be obliged to apportion it among persons whose pretensions, as respects him, are wholly unknown and arbitrary ? There would be no hardship in compelling each of the defendants to set forth in his plea his title, with which he ought to be acquainted, with a disclaimer of any thing more. It would be more just, that they should sever in their pleas, and if judgment was in favor of any of them, to let them have their costs; and to let judgment go against the

rest.

Where land is conveyed to A and B in mortgage, to secure a debt due to them jointly, they are joint-tenants, and if one dies, the other must sue alone. 7 Mass. R. 131. But, if they sue jointly and fore,

close the mortgage, they become tenants in common by the foreclosure. 11 Mass. R. 469.

Where a reversion or remainder is mortgaged, this action lies by the mortgagee to foreclose, during the continuance of the particular estate. 13 Mass. R. 429.

Where the action is brought by an administrator or executor, under the statute, he should state the capacity in which he sues, and should count on the seizin of the testator or intestate. But an administrator of a person deceased, appointed in another State, can neither sue a mortgage of lands in this State, nor by delegation or asssignment of the mortgage enable a resident of the State to do it. Cutter v. Davenport, 1 Pick. 81.

The manner of declaring on Mortgages.

The Revised Statutes of Massachusetts, direct the mode of declaring in actions on mortgages. The mortgagee or the assignee of the mortgagee, may declare on his own seizin, in a writ of entry in common form, against the tenant of the freehold, whether the mortgagor or his assignee, without mentioning the mortgage deed, or the condition or defeazance.

As the mortgagor or his assignee, will of course have a right to redeem, the demandant will be entitled to the conditional judgment, that if the defendant shall, within two months, after the judgment, pay to the plaintiff the sum found due on the mortgage, with interest and the costs of the suit, the mortgage shall be void, and the defendant shall hold the premises discharged thereof, otherwise that the plaintiff shall have his execution for possession, &c. Chap. 107, sections 3, 4, 5.

If the defendant is not the mortgagor, and does not claim under him, he shall not be entitled to the conditional judgment, unless with the consent of the plaintiff; but the suit shall be conducted in all respects like a Writ of Entry. lbid.

Section 4. The judgment may in all cases be entered for possession, as at common law, unless one of the parties shall move for the conditional judgment.

Section 8. Where the action is against any other person than the mortgagor, the mortgagor may be joined, but if he has no estate in the premises, and makes no defence, he shall not be liable to pay any

costs.

DECLARATIONS ON MORTGAGES.

Mortgagee v. Mortgagor, under the Revised Statutes of Massachusetts.

To answer to L M, of &c., in a plea of land, wherein the said L M demands against the said T, the possession of a certain parcel of land, situate &c. Whereupon the said L M says, that he was lawfully seized of the demanded premises, with the appurtenances, in his demesne as of fee, within twenty years last past, and ought now to be in quiet possession thereof, but the said T hath since unjustly entered, and holds the plaintiff out, &c.