Smith ex dem. Teller v. Burtis

Kent, Ch. J. delivered the opinion of the court. The first and most important question raised in this case is, whether a descent was cast, upon the death of Isaac Tel* ler, so as to toll the entry of the true owner. The counsel, upon the argument, entered into a discussion of the general doctrine of disseisin; but I do not think it will be necessary to pursue at large that inquiry. All the books seem to agree that the ancient learning on ■ this subject has become abstruse. Disseisin, in the age. of Bracton, was considered in an extensive sense, and far beyond the idea which was first applied to it. Disseisin by election, in opposition to actual disseisin, was introduced very early, and became very prevalent, in order to extend the remedy by writ of assise, which was [216] devised by Glanville, in the • reign of Henry IL ' It must therefore "be- difficult, in many cases, to know what' . . , J species or disseisin was intended, though it is said that - the old books, and particularly the book of assise* when they mention dissesins, generally relate to disseisins.by \ election. - The present question appears, however, to lie in a narrower compass; and by confining ourselves to a few plain and familiar authorities, we shall discover the-principle, that the doctrine of descent cast applies only ■ to.a seisin, commencing by wrong, and founded on an ouster of the true owner. Whatever may be the mean- • ing of disseisin, in other cases, its meaning when applied to the subject before us, embraces a tortious ouster. There must be a disseisin in fact. The rightful owner must have been expelled, either by violence, or by some act which the law regards as equivalent in its effects. “ Descents in fee, which toll" entries, says Littleton, (s. 385.) aré, as if a man seised of certain lands, is by another disseised, and the disseisor hath issue. and dieth of such estate seised ; now the lands descend to the issue of the disseisor, by course oflaiV, as heir unto him. And because the law casts the lands upon the issue, by force of the descent, the entry of the disseisee' is taken away.” And in the next section, Littleton gives a like definition of a descent in tail, which tolls an entry. Both he and Gilbert have a chapter devoted to the subject, and they always speak or refer to a descent founded on a seisin commencing by wrong. “ In descents which toll entries, it behoveth,” says Littleton (s. 387.) “ that the man die seised in his demesne as of .fee.” A seisin in his demesne as of fee, is the strongest and highest estate which the subject can enjoy. It would then be very idle to talk of a descent cast, in the case of a rightful •seisin in, fee, for there would be no right of entry to be tolled in such a case. The doctrine can only exist and apply in the case .of a tortious seisin. [217] At the common law, if the disseisor, abator, or in-trader, (and these are mentioned by Coke, as the only wrongful acts of seisin, which will cast a descent,) had died seised soon after the wrong done, the disseisee and his heirs were barred of their entry. (Co. Litt. 238. a). This was deemed too harsh a rule, and the statute of 32 Hen. VIII. c. 33. was passed, saving the right of entry to the disseisee, unless the disseisor had been in peaceable possession, for five years next after the disseisin by him committed. This statute shows pretty plainly, what species of disseisin was then understood as applicable to this subject. It is entitled, “an act that wrongful disseisin is no descent in lawand it recites that whereas “ divers persons have heretofore, by strength, and without title, entered into lands, and wrongfully disseised the rightful owner, and so being seised by disseisin, have thereof died seised, by reason of which dying seised, the disseisee or such other persons, as before such descent might have lawfully entered, were thereby excluded of their entry and put to their action.” It is therefore enacted, “ that the dying seised of any such disseisor of any lands, having no right or title therein, should not be taken or deemed any such descent in the law, for to toll or take away the entry of any person, which, at the time of the descent, had good and lawful title of entry, . except,” &c. The disseisin intended by this act, was one founded on a tortious expulsion of the true owner. This is giving the term its primitive and genuine meaning ; and in this sense it is always used, when applied to a descent cast, A mere entry upon another is no disseisin, unless it be accompanied with expulsion, or ouster from the freehold. Disseisin is an estate gained by wrong and injury; and therein it differs from dispossession which may be by right or wrong. This is the uniform language of the best authorities, from the time of Littleton. (Litt. s. 279. [218] Co. Litt. 3. b. 18. b. 153. b. 181. a. Cro. Jac. 685. 1 Salk. 246. n. 2. 1 Burr. 109.) This tortious seisin, the lessors of the plaintiff were bound to show affirmatively, if they would put themselves upon the strict and ungracious right of a descent cast. A peaceable entry upon land, apparently vacant, furnishes, fer se, no presumption of. wrong. The benign and legal intendment is otherwise. According to Lord Holt, (1 Salk. 246.) a bare entry on another, without an expulsion, makes such a seisin only, that the law will adjudge him in possession that has the right. This court has frequently recognised the same rule, that an entry not appearing to be hostile, was to be considered an entry under the title of the true owner. It lay, then, with the plaintiff to show his entry not congeable, pr to show a subsequent disseisin; for he entered upon vacant lands. We may infer title, from his ten years’ possession, sufficient to put the tenant upon his defence ; but we ought not to infer a tortious entry, or an actual ouster, sufficient to bar every defence. This would be a most rigorous conclusion, for it makes the ancestor of the plaintiff a disseisor; it tolls the entry of the true owner; it shuts out his defence, and drives him to his writ of right, which final remedy is now subject to the limitation of twenty-five years. The subsequent use of the land by Teller was no disseisin. ' The case of Matheson v. Trot, (1 Leon. 209.) is a strong authority on this point. In that case, Henry Denny, the heir at law, when he came of age, claimed and sued out livery, or restitution of lands, out of the hands of the feudal lord, who had seised them as guardian for the infant. He then leased them for years, reserving a rent, and for years received the rents and profits from his tenant, and died so seised. This Was held not to be a requisite seisin to cast a descent, though the court admitted, that his lessee had gained a wrong [219] ful possession in fee. If here was not, during all this time an actual pedis possessio by the heir, (though the case says, he once walked over the lands with his tenant,) yet he held and enioyed the lands by his tenant; and the , , • , . , case showed conclusively, that he held them without title, for the lands had been devised in fee to his younger brother. This case, I think, is, in every view, much stronger in favour of a descent cast, than the one before us. As it was, therefore, ruled, at the trial, that a descent was cast, and the evidence offered by way of defence, inadmissible, the court are of opinion, that there ought to he anew trial, with costs to abide the event of the suit. New trial granted.