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Y. R. 61. Ricard v. Williams, 7 Wheaton's R. 59. Vide Valentine v. Northrop, 12 Wend. R. 494. Clapp v. Bromagham, 9 Cow. R. 530.)
It was formerly held that ejectment did not lie for a church or chapel, though corporeal hereditaments, because they were res sacræ, and, therefore, not admissible; but this doctrine has been long since exploded, though care must be taken that the action be brought in favor of, and against, the proper parties. (Lucas v. Johnson, 8 Barb. R. 244. Van Deuzen v. The Presbyterian Cong. at Fort Edward, 3 Keyes' N. Y. R. 550. Thyn v. Thyn, Styles' R. 101. Hillingsworth v. Brewster, 1 Salk. R. 256.)
A common appendant or appurtenant may be recovered in an ejectment brought for the lands to which it is appendant or appurtenant, provided, such right of common be mentioned in the description of the premises; because, he who has possession of the land, has also possession of the common; and the sheriff, by giving possession of the one, executes the writ as to the other. But it is thought, however, to be prudent in such a case, to state in the description, that the common so claimed is a common appendant or appurtenant, although it has been held after verdict, that an ejectment for lands and also for “common of pasture," generally, is sufficient. (Adams on Ejectment, 19.)
When in a conveyance the grantor reserves to himself, his heirs, and assigns, forever, “the right and privilege of erecting a milldam at a certain place described, and to occupy and possess the said premises, without any hindrance or molestation from the grantee or his heirs, etc.," it is considered that he has such an
, interest in the land reserved as will entitle him to his action of ejectment against the person depriving him of the use of such privilege. (Jackson v. Buel, 9 Johns. R. 298.) But the grant of a privilege to erect a machine and building on land, without defining the place where they are to be erected, or the quantity of ground which is to be occupied, does not, without an actual entry and location, confer such a right as to enable the lessee to maintain ejectment. (Jackson v. May, 16 Johns. R. 184.)
The grantor of lands may maintain ejectment to repossess himself of the lands conveyed, when the premises have become forfeited by reason of the violation of covenants contained in the grant. For example, when a deed contains a covenant, to the effect, that the grantee will not erect, or suffer to be erected, any
structure, whereby the view or prospect of G. (not a party to the deed) shall be obstructed, and, in case of breach, the premises to be forfeited to the grantor, for the use of G., his heirs and assigns, the court of appeals of the state of New York held, that the language employed made the land described an estate upon condition, and that it was not the less valid, because the thing prohibited was declared to be for the protection or convenience of a person occupying adjoining land. (Gibert v. Peteler, 38 N. Y. R. 165.) The point was not involved in this case, but of course the grantor, and, in some states, the person for whose benefit the condition in the grant was imposed, could bring ejectment to recover the premises on their being forfeited, by the violation of the condition.
It was formerly held that an ejectment could not be maintained for a fishery, because it was only a profit apprender, but this doctrine has been repudiated, and it was said a long time ago by Ashurst, J., “there is no donbt but that a fishery is a tenement; trespass will lie for an injury to it, and it may be recovered in ejectment. (Rex v. The Inhabitants of Old Arlesford, 1 Term R. 358.)
But ejectment will not lie for a water-course or rivulet, though mentioned by name; because it is impossible to give execution of a thing which is transient, and always running. But if the ground over which the rivulet runs belongs to the claimant, the rivulet may be recovered, by laying the action for “so many acres of land covered with water.” The case of a pool, or pit of water, is quite different, because here the words comprehend both land and water, and hence ejectment may be maintained in such a case. (Adams on Eject. 21. Vide also Wilklow v. Lane, 37 Barb. R. 244.)
The right of the riparian proprietor to land below high water mark may be vindicated against disseisin in an action of ejectment. (Nichols v. Lewis, 15 Conn. R. 137.)
When the party has, at most, a mere equitable title to the land, the possession of which he seeks to recover, he cannot maintain his action of ejectment; because an equitable estate is not, in general, sufficient to support an ejectment. (Peck v. Newton, 46 Barb. R. 173. Lessee of Cooper v. Galbraith, 3 Wash. R. 546. Fenn v. Holme, 21 How. U. S. R. 481.) It seems, however, that by the policy prevailing in Pennsylvania, the owner of an equitable title may recover in ejectment or partition. (Willing v. Brown, 7 Serg. and Rawle's R. 467.) The reason of this rule in Pennsylvania is, that, under the laws of that state, they have no court of chancery, and hence an action of ejectment is sustainable there on an equitable title, by the state courts; but this doctrine is not recognized by the courts of the United States, even when the action relates to lands in the state of Pennsylvania. (Swayze v. Burke, 12 Peters' R. 11.)
So, also, the purchaser of a partner's share or interest in the lands of an association cannot maintain ejectment for the land purchased. His remedy is in a court of equity, where an accounting can be had. (Clagett v. Kilbourne, 1 Black's U. S. R. 346.)
Although an executor has no power over the fee simple estate, unless authority is given him by the will, he may maintain ejectment for lands held by the testator for a term of years. (Duchane v. Goodtitle, 1 Black's R. 117.)
If the title to land be cast by descent on a married woman, her husband, having a life estate, may maintain ejectment for the recovery of the possession of such land; and after the termination of the life estate, the person holding the interest in remainder may bring ejectment to recover the estate of the wife. Those several estates are of a nature to be recovered in the action. (Gregg v. Tesson, 1 Black's U. S. R. 150.)
FOR WHAT THE ACTION OF EJECTMENT WILL LIE BY THE STATUTES OF
THE SEVERAL STATES.
The common law in respect to the things for which the action of ejectment will lie has in some instances been modified by the local legislation of the several states.
By the Revised Statutes of the state of New York, it is provided that, subject to certain provisions, the action of ejectment may be brought in the cases and the manner theretofore accustomed, and, in addition, in the same cases in which a writ of right may be brought by law, to recover lands, tenements or hereditaments; and by any person claiming an estate therein in fee or for
life, either as heir, devisee or purchaser; and by any widow entitled to dower, or by a woman so entitled and her husband, after the expiration of six months from the time her right accrued, to recover her dower, of any lands, tenements or hereditaments; but that no person can recover in ejectment, unless he has, at the time of commencing the action, a valid, subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial. (2 Stat. at Large, 312, SS 1, 2, 3.)
At common law, after a mortgage becomes forfeited by nonpayment of the moneys secured thereby, the mortgagee may immediately proceed by ejectment against the mortgagor or other party in possession under him, and this is the law in many of the States at the present day. By the Revised Statutes of New York, however, no action of ejectment can be maintained by a mortgagee, or his assigns or representatives, for the recovery of the possession of the mortgaged premises. (2 Stat. at Large, 321, $ 57.) The courts of this state hold the effect of a mortgage to be merely the creation of a specified lien, as security for the performance of the conditions expressed, which are either the payment of money or the performance of covenants or contracts, and does not pass the title, which continues in the mortgagor until foreclosure and sale, and it was for this reason doubtless that the statute was passed prohibiting the maintaining an action of ejectment upon a mortgage until it is foreclosed.
It will be observed, however, that the cases in which ejectment may be maintained have been considerably extended by the statutes of New York. The action is retained in all the old cases, and in addition it may be brought in other specified cases; for example, in the same cases in which the writ of right could be brought by law. This is an important addition.
The writ of right — breve de recto, or brefe de droit — was, in its nature, the highest writ in the old practice, but it lay only by an estate in fee simple, and not for him who had a less estate. It lay concurrently with all other real actions, in which an estate of fee simple might be recovered ; and it also lay after other real actions, being as it were an appeal to the mere right, when judgment had been had as to the possession in an inferior possessory action. (3 Black. Com. 193.) This remedy is still retained in some of the
states, though the writ is in general disused in practice, and in New York it is superseded entirely by the action of ejectment.
But, by the Revised Statutes of New York, the remedy by ejectment is still further extended to all cases in which the party claims an estate in lands in fee or for life, either as heir, devisee or purchaser, and to cases in which the widow is entitled to dower. In this state, therefore, ejectment is the principal method in use for the trial of titles to land and the recovery of the possession of real estate.
The common law remedy by ejectment is curtailed in the state of New York only in the cases of mortgage. In these cases, the action is peremptorily prohibited, and the prohibition extends not only to cases of mortgages in form, but to those where the parties in equity sustain the relation of mortgagör and mortgagee. For example, a party making title to premises by the assignment of the legal title as security for a debt, holds the same in the character of mortgagee, and, as mortgagee, cannot maintain ejectment for the possession of the premises. A deed of conveyance absolute upon its face, if intended for the security of a debt, is, in equity, a mortgage, and the same rule applies as in the case of a regular mortgage. (Murray v. Walker, 31 N. Y. R. 399. Vide also Dahler v. Signer, 37 Barb. R. 329).
Ordinarily, where the purchaser of lands has made default in the payment of money under an executory contract, ejectment may be maintained against him to regain the possession of the lands; but, under the New York statute, the assignee of the purchaser of such lands, who takes the assignment as security for the payment of a debt, cannot, in default of payment, recover possession of his assignor in an action of ejectment. In such a case, the title of the assignee of the purchaser is that of a mortgagee before foreclosure, especially as to the assignor, and upon such a title he cannot maintain ejectment, by reason of the prohibition of the statute. (Campbell v. Swan, 48 Barb. R. 109.)
There is a special statute also in the state of New York, in respect to bringing ejectment for demised premises. It is provided, that, whenever any half year's rent or more shall be in arrear from any tenant to his landlord, and no sufficient distress can be found on the premises to satisfy the rent due, if the landlord has a subsisting right by law to re-enter for the non-payment of such rent, he may bring an action of ejectment for the recovery of the pos