Open main menu

Page:Popular Science Monthly Volume 44.djvu/822

This page has been proofread, but needs to be validated.
804
THE POPULAR SCIENCE MONTHLY.

purtenant to the land seized there were easements or rights of enjoyment over other adjacent lands, the intruder by his possession of the principal estate became legally entitled to enjoy such easements. The estate of the person dispossessed was in the language of the law "turned into a right." This "right," although untransferable to any one else, could be released to the intruder, and by such release the estate of the intruder, which was tortious or wrongful, became rightful. But, although words of inheritance were generally necessary to convey more than an estate for life, no such words were necessary in a release to a dispossessor, since the fee or entire estate was already in him, though wrongfully. For the same reason a release to the intruder for a year, or even for a day, was as good as though to him and his heirs forever, since the fee, or entire title, which he already had, though wrongfully, could not, it was said, be curtailed by a deed without entry—that is, without a transfer of the possession. And upon the ground that the estate was already in the intruder, an instrument executed to him by the person ousted, although it purported to give and grant the described premises, was held to operate only as a confirmation of the estate already vested in the usurper. So, while the intruder was in possession, no action could be maintained against him for trespass, or for the value of crops harvested by him, or for other similar profits; nor could such actions be maintained even after the rightful claimant had recovered possession, except by recourse to a legal fiction (invented to avert such injustice), by which for such purposes a temporarily dispossessed person was, after recovery, construed to have been continuously in possession.

The right to dispose of lands by will was first introduced in the reign of Henry VIII by a statute which declared that "all persons having any manors, lands, or tenements may give and dispose of them by last will." In construing this statute, it was held, in harmony with the foregoing doctrines of the common law, that only those persons had lands who were in possession of them, and that dispossessed persons, therefore, had nothing upon which a will could operate. Such was the law in England until changed by statute in 1838. Such also had been the recognized law before the statute of Henry VIII in those counties where by local custom the power to will had previously existed.

But, although a person by being ejected from his lands lost all his estate in them, he was not without rights of redress. If he acted promptly he was entitled to recover his lost ground, and, until prohibited by the statute of Richard III, he might enlist and employ whatever forces were necessary for that purpose. The time within which this right of personal recovery, or, as it