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The Action of Ejectment, Its Uses

and Abuses

PAPER READ BY HON. ARCHER A. PHLEGAR,

OF CHRISTIANSBURG, VA.

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Mr. President and Gentlemen of the Virginia State Bar Asso

ciation.

Your efficient Secretary, who conveyed to me the invitation to read a paper before this meeting, suggested, on my statement that I did not know what to write about, “The Action of Ejectiment, its Uses and Abuses,” with a very strong emphasis on “Abuses”.

The fact that land title cases were among the first in which I was employed, together with the disposition to defend an old friend, caused me to accept the suggestion but with a determination to change the emphasis, and to defend the venerable, much abused, and much misunderstood, but very useful action of ejectment.

My regret is that the subject was not committed to one of my brother lawyers, who have learned the law of ejectment on the Stone, Bull, and Iron Mountains, from the beach, birch, and chestnut barks of the Powell, the Clinch, and the Dan, who can read more woodcraft from a twig than I can from a tree, and find a corner mark in what I would mistake for the nest of a humming bird. I refer to such men as Bullitt, Fulton, Ayers, Irvine, Tompkins and Bolen.

HISTORY OF THE ACTION.

Both the antiquity and the origin of the action appeal in its behalf.

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Prior to the statute of Westminister 2, Ch. 24, there was no remedy known to the common law, by which a tenant who was ousted from his possession by a strong but unjust landlord, or by any other stronger than himself, could recover his possession. He might maintain the old writ of covenant for damages where his lessor was the wrong doer, but where a stranger was the in-truder, he was without any remedy.

As Blackstone expresses it, "upon the equity” of the statute just referred to, there was devised the writ of “quare ejecit infra terminum, whereby the ousted tenant might recover both the term, if unexpired, and damages for the ouster, against the grantor himself and all claiming under him, but he was still without remedy if a stranger disseized him, until, according to Adams on Ejectment, the reign of Edward II, or the early years of Edward III, when the writ of ejectione firmae was invented. Even this writ did not, for many years, enable the tenant to recover the possession from a stranger, who was the intruder until the courts of common law, in order to prevent the frequent recourse by wronged tenants to courts of equity, enlarged the operation of the writ of ejectione firmae, and granted judgments thereon both for damages and the possession; and this writ became the means by which all possessory titles to freeholds and terms for years, were tried.

The action was originated to protect the weak against the strong, the vassal against the lord, the poor man ousted from his home against the intruder, whether lord, fellow vassal or stranger.

Its foundation was "upon the equity” of a statute rather than the letter, and its enlargement a natural growth of the common law to meet the exigencies of society. That it was encumbered with many forms and technicalities is true, but no more so than almost every action and proceeding of the courts in those days.

Being, as it was, invented for the protection of tenants, it was but natural that there should be a lease for an unexpired term, otherwise the plaintiff would not be entitled to recover; that such lease should be a valid one, made by the owner of the land, otherwise the lessee would have no right under his lease ; that he should have entered, otherwise the common law rule against the transfer of titles without actual possession would have been violated; and an ouster, or no wrong would have been done; therefore the four essentials of the common law action of ejectment became, TITLE, LEASE, ENTRY, and OUSTER.

When it was found that this action, which necessarily involved the lessor's title, was a inore convenient method for trying the title to land than any other of the real actions, various devises and subterfuges were resorted to, for the purpose of getting the four essentials, as it was in many cases inconvenient and expensive to actually go upon the land, execute a deed of lease, and have some one eject the lessee, simply for the purpose of getting the foundation for an action. To remedy this, in the days of the protectorate, when men went straight to their objective point, even though that point was a king's neck, Lord Chief Justice Rolle devised the plan of requiring the defendant in actions of ejectment, to admit the lease, entry, and ouster, and to make up the issue on the title alone. That he did not go further and wipe out the circunlocution of the lease and entry, behead John Doe and banish Richard Roe, is one of the many evidences of the conservatism of the common law judges.

This admission was known as the consent rule”, and obtained in Virginia until the revisal of 1849, when it was abolished, and the action was freed from most of the useless technicalities which had surrounded and clogged it. The action is now essentially an action to recover the possession of land, or any interest therein, whether it be an undivided interest, or an estate for years, for life, or in fee. It is applicable to almost every conceivable circumstance, in which the right to the possession or use of any part of a parcel of land is to be enforced.

THE ACTION.

The action of ejectment, as provided for by the Code of Virginia, is the most direct and simple of all our actions.

This statement may take by surprise some who have had no experience with the action, and some who charge to the action the complicated refinements and difficulties which arise in the construction of deeds, wills, and other evidence relating to the title of land, but which would arise in any form of action in which land titles are determined. The difficulty is not with the action either in form or effect, but is due to the multitudinous rules of the common law applicable to the creation, limitation, transfer, and destruction of estates; and to the careless manner in which title papers have been drawn and executed, and locations and surveys have been made.

Let us follow the proceedings in an action of ejectment, and see if the statements just made are not true.

BRINGING THE SUIT.

The action is begun by serving a copy of the declaration on the defendant with a notice that the declaration will be filed at a specified rule day of the court in which the suit is to be prosecuted, or on a specified day of the next term of the court. Code Sect. 2732.

This renders unnecessary the issuance of the almost unintelligible writ, which commands the Sheriff to summons the defendant “to appear at the Clerk's Office at rules to answer a plea of something which to the defendant is meaningless," under the penalty of $16.00, which frightens him into stopping his plow and riding, maybe twenty miles, to the court house on Monday morning to ascertain what the matter is, to save the $16.00. When there, he probably finds no declaration, and returns home no wiser than he came.

The plaintiff's attorney has been saved the necessity of a trip to the Clerk's Office, and of making a memorandum, and what is better still, has been compelled to write his declaration when it ought to have been done, instead of putting it off until the last day of the last rules, and then asking the Clerk, the next day, to endorse it as filed the day before.

The declaration informs the defendant of the plaintiff's claim at the time the suit is brought; an individual as well as an officer can serve the declaration and notice; there is no danger of a plea in abatement for a variance between the writ and the declaration, and the proceedings after the declaration and notice

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are filed, are the same as in other suits. Code Sects. and 3284.

THE DECLARATION.

The contents of the declaration are so clearly prescribed in Sects. 2728–29-30 of the Code that it is more difficult to write a bad declaration than a good one, if the statue is referred to, except in the matter of a description of the premises sued for, and since the reasonable and common sense ruling about descriptions in Ruhle v. Seaboard Air Line Ry. Co. 102 Va. 343, it will be a very careless attorney who goes astray in that respect.

The declaration, other than the description of the premises, need not contain a dozen typewritten lines. Of what other declaration can this be said?

The necessary allegations are three simple statements:

(1) That the plaintiff was, on a day to be named, which is subsequent to the time his title accrued, possessed, (for years, life or in fee as the case may be,) of the following described premises.

(2) A description of the property by metes and bounds if such a description is available, if not, then by naming the abutting lands, streets or water courses. It is not at all unusual to claim and describe a large survey, although the defendant may be in possession of and claiming but a small portion thereof, when the plaintiff has not an accurate description of the land actually claimed, by the defendant or does not know just what is claimed. The requirement of the statute is that the description shall be such that possession may be delivered therefrom.

(3) That the plaintiff being so possessed thereof, the defendant afterwards, on some day to be stated, entered into the premises, (or exercised acts of ownership thereon, or claimed title thereto, or some interest therein), to the plaintiff's damage so much as he may choose to allege.

The person in actual possession when there is one, is a necessary party defendant, and all others claiming any title to, or interest in the premises, or exercising any acts of ownership thereon, may and should be made defendants, and served with copies of the declaration, and notice of its filing.

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