Lyon's Heirs v. Mottuse

19 Ala. 463 | Ala. | 1851

DARGÁN, C- J.

The material inquiry, growing out.of' tlio-pleadings and the instructions of the court,, is to ascertain tho character of the action, that is, whether it is a-writ of'right, or’ a- writ of entry sur disseizin. In the count it is alleged'that tlie premises are demanded by writ of right, but after describing; the land, the plaintiffs set forth their title thus :■ “ which they,, the said plaintiffs, claim to b.o their right and. estate as heirs of' James R. Lyon, deceased, whereof the said’ Cataline Mottuse,,. unjustly and without judgment, disseized their aforesaid ancestor within the last thirty years.”' The count then states the-pedigree of the plaintiffs,, showing-them to he the heirs at law off James R. Lyon, and concludes with an offer to prove their right.,.. To this count the defendants filed the following plea : c< The defendants join in the mise in short by consent.” Upon the evidence the court instructed the jury that the plaintiffs had the superior title, but to enable them to recover, they must prove the disseizin of their ancestor within the last thirty years.

, If this count can be considered as one in a.writ of. right,.it-is clear that the court erred,, for the defendant’s,informal pica, merely joining in the mise, put in issue the mere- right or. title-only,, and, the disseizin was wholly without the issue, and'unnecessary to be proved.—Inglis v. The Sailor’s Snug Harbour, 3 Peters, 133; Greene v. Watkins, 7 Wheaton 27; Jackson on Real Actions, 289. Indeed, it is unnecessary to allege a disseizin in a writ of right, and in none of the precedents is it to be found.— Boothe on Real Actions, 92 Stearns on Real Actions, 443-4, Appen; Jackson on Real Actions, 277.

But tbe writ of right can only be brought by one who has the fee simple title to the lands. — 3 Black. Com. 191; Stearns on Real Actions, 357; Jackson on Real’Actions, 278. And therefore it- was- that one who had a less estate than a fee simple, and who was barred of all .possessory actions, was without remedy. • To remedy this defect, the writ of formedonwas given to tenants in tail by the statute of -Westm, 2,. (13 JEdw. 1,) and the same •. statute gave to owners of .particular estates, such as tenants for "life, in dower, and in curtesy, a writ3-called a quód ei deforciat, by which they could regain, possession -Of .their lands, which had been recovered of them in any of the possessory actions in con- •• sequence of their neglect or default.—3 Blackstone, 193. But the pure writ of right at the common law would lie only to recover afee simple estate, and in favor..of him who had the fee simple title. Therefore it is necessary that '.the count should show that the demandant.had afee siniple title. " This is done by alleging his seizin, or the seizin in fee of his ancestor, through whom he claims, in his demesne as of-fee of right, and in none of the precedents is -.this allegation omitted.—Stearns, 444; Boothe 9; 3 Chitty 1359. Testing the count by this'rule, it is defective as a writ of right, for there is no allegation to show '.that "James R. Lyon, through whom, the ^plaintiffs claim, was seized in fee simple. Indeed his seizin is not averred'at all but . by the allegation of his disseizin, -and if we admit that this is sufficient to show seizin, on the ground that he could not be dis-seized unless he had been seized, still the allegation falls far short of showing that he was seized in fee • simple, for he might have been seized of a less estate-than-a "fee simple. The count is 'de- . fective as a count in a writ of right.

’ But it is sufficient considered as a count in a writ of entry, < especially after.'verdict, for-the gist of the action is the wrong- ' ful disseizin, without regard to the mere right of property. • It decides nothing as to the ultimate fee simple title, but only "re- : stores the demandant to. the same situation in reference to the land in which he was before he was dispossessed. But this restoration'is without prejudice to the ultimate right of ownership, for if the disseizor has the ultimate fee simple title, he may, after verdict and judgment against him in a writ of entry, assert ...his title by a writ of right, and .thereby regain the possession.—3 Black, Com. 180.

As the writ, of entry is founded on the disseizin of the de-mandant, or those through whom he claims, it is only necessary ..to allege his seizin, or the seizin of the., ancestor through whom he derives title, and the disseizin by the tenant, or by him through •whom he derived possession; hence it is that-seizin in fee simple •need not be alleged in this action, for. it may be .maintained by •one who has a less estate than a fee simple, - as by tenant for life, 'in dower, by the curtesy, and by tenants in tail. — Stearns on Real Actions, 139; Jackson on Real 'Actions, 27. We therefore think that the allegation of disseizin is sufficient.after verdict in .a writ of entry, which, is founded on the .disseizin, ari'd .not upon the-mere right of the demandant, and that the count is good considered as. a count in-a writ of entry,, but that it is •insufficient as one ún a writ-of right. .-Consequently it should be considered as a countin a writ of entry, and notas one in a writ -of right. Indeed,-it has been decide'd that 'if the count contain • the allegation 6f :disseizin, it must be considered as a count in a writ of entry, and not one .in a writ of right, although without the averment of disseizin it would have been good as a count in a writ off-right.—Plumer v. Walker, 24 Maine, 14. But with- . out determining on the correctness .of this decision, I am satisfied that .if. the count contains, the allegation of disseizin, and is insufficient as a count in a writ of right for the want of an averment of seizin in fee, it cannobbe considered in any other light than a count in a writ of entry, -the gravamen of which is the • tortious disseizin, and must be proved under the general issue. .. Attaining this conclusion, I am satisfied that the court did not ..-err, in charging.the jury that it was incumbent on the plaintiffs to prove the disseizin of their ancestor as alleged.

But it is urged that the character of the, plea must determine ; the-character, of the count,.and as the plea is applicable only to a count in a writ of right, it must be so considered. To this ••.argument I cannot assent. We must look to the declaration it-~celf to determine the character of the suit, not to the plea. For instance, the plea of non-assumpsit to a declaration in trespass would not change the character of the suit, and convert it into .an action of assumpsit.

Upon the whole, I see no error in the ruling of the court .of which the plaintiffs can complain, and the judgment must there.fore be affirmed.