This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
A person who claims land now commences an action by a writ, usually in the King's Bench Division, in much the same manner as most other actions.
The action is usually called an "action of ejectment," for the following reason: -
I. To recover the property in land, or, more strictly, to recover the whole fee simple interest.
The Writ of, Right, which was commenced by the writ of Pręcipe, was a very formal action by which a person not in possession of land could recover the fee simple from the person in possession if he could prove his title.
The person in possession was presumed to be the owner unless the claimant could prove a better title. The rules of proof were very strict and the slightest flaw or mistake might cause the claimant to lose his case.
II. To recover Possession. - It was thus a great advantage to be able to get possession of land; for the burden of proof would then lie on any person who tried to obtain possession. Thus it is that "Possession is nine points of the law." In order to facilitate the recovery of possession, two actions were introduced in the time of Henry II.
(a) The assize of novel disseisin. -
Assize here means a trial by jury.
recent, or new.
The action was therefore a trial by which a person who could prove that he had been in possession and had been recently turned out by another, could be put back into possession.
This action only determined the right to possession, and the other party could afterwards bring his writ of right and recover the land again, if he could prove his title.
(b) The Assize of Mart d'ancestor.
This was a similar action, in which the plaintiff had merely to prove that his ancestor was in possession, that the ancestor was dead, and that he was the heir. He would then be put in possession, leaving the other party to bring the writ of right if he thought he could establish his claim.
Leasehold estates could not be recovered by any of these remedies. If a leaseholder was ejected (= thrown out) from his land, he could recover damages only. But in the reign of Edward 1Y. a new remedy was introduced called -
By this action a leaseholder who was ejected from his land could recover the land itself. If he was ejected by his landlord, he had to prove the lease; but if he was ejected by a third party, he had to prove also that the landlord who granted him the lease had the freehold; otherwise the lease would be void.
The Action of Ejectment teas used by freeholders.
The writ of right was very formal and costly, so much so that a freeholder who claimed that another was in wrongful possession of his land preferred to make use of the Action of Ejectment. This was done as follows: -
The person claiming the freehold entered on the land and made a lease of the land to a friend; the person in possession ejected the friend, who then brought the action of ejectment, claiming that he was a leaseholder who had been ejected by the person in possession. The friend, in order to show that his lease was valid, had to prove that the claimant who had granted him the lease was really entitled to the freehold - and thus the question of title to the freehold was indirectly settled.
Thus A claimed the freehold. B was in possession. A entered on the land with a friend, C, and made a lease to C for one year. B then ejected C. C brought the action of ejectment against B, and in order to prove the validity of his lease, had to prove A's right to the freehold.'
The title of the action would be "C on a demise " (= lease or transfer) from A versus B - or more shortly C d. A v. B.
Later the "lease, entry, and ouster" became fictious.
I.e. A did not really take C on to the land, but he alleged that he had done so, and B was not allowed dispute the allegation. C then, instead of being a real person, became the fictitious person John Doe.
The title of the action then became "Doe d. A v. B."
Thus, see in the list of cases at the beginning of this book, the case of Doe d. Strode v. Seaton, and others. All these are cases where the freeholder is bringing an action for ejectment under the fiction that he has made a lease to John Doe.
This curious form of procedure was abolished in 1852 (a), and a special form of writ for the recovery of land was created.
(a) Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76 ss. 168, 169.
Now, by virtue of the Judicature Act, 1873, and the Rules of the Supreme Court made since that Act, the form of writ is the same as in other actions; hut some of the special rules of procedure which were applicable to the action of ejectment are still retained.