1911 Encyclopædia Britannica/Ejectment

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EJECTMENT (Lat. e, out, and jacere, to throw), in English law, an action for the recovery of the possession of land, together with damages for the wrongful withholding thereof. In the old classifications of actions, as real or personal, this was known as a mixed action, because its object was twofold, viz. to recover both the realty and personal damages. It should be noted that the term “ejectment” applies in law to distinct classes of proceedings—ejectments as between rival claimants to land, and ejectments as between those who hold, or have held, the relation of landlord and tenant. Under the Rules of the Supreme Court, actions in England for the recovery of land are commenced and proceed in the same manner as ordinary actions. But the historical interest attaching to the action of ejectment is so great as to render some account of it necessary.

The form of the action as it prevailed in the English courts down to the Common Law Procedure Act 1852 was a series of fictions, among the most remarkable to be found in the entire body of English law. A, the person claiming title to land, delivered to B, the person in possession, a declaration in ejectment in which C and D, fictitious persons, were plaintiff and defendant. C stated that A had devised the land to him for a term of years, and that he had been ousted by D. A notice signed by D informed B of the proceedings, and advised him to apply to be made defendant in D’s place, as he, D, having no title, did not intend to defend the suit. If B did not so apply, judgment was given against D, and possession of the lands was given to A. But if B did apply, the Court allowed him to defend the action only on condition that he admitted the three fictitious averments—the lease, the entry and the ouster—which, together with title, were the four things necessary to maintain an action of ejectment. This having been arranged the action proceeded, B being made defendant instead of D. The names used for the fictitious parties were John Doe, plaintiff, and Richard Roe, defendant, who was called “the casual ejector.” The explanation of these mysterious fictions is this. The writ de ejectione firmae was invented about the beginning of the reign of Edward III. as a remedy to a lessee for years who had been ousted of his term. It was a writ of trespass, and carried damages, but in the time of Henry VII., if not before that date, the courts of common law added thereto a species of remedy neither warranted by the original writ nor demanded by the declaration, viz. a judgment to recover so much of the term as was still to run, and a writ of possession thereupon. The next step was to extend the remedy—limited originally to leaseholds—to cases of disputed title to freeholds. This was done indirectly by the claimant entering on the land and there making a lease for a term of years to another person; for it was only a term that could be recovered by the action, and to create a term required actual possession in the granter. The lessee remained on the land, and the next person who entered even by chance was accounted an ejector of the lessee, who then served upon him a writ of trespass and ejectment. The case then went to trial as on a common action of trespass; and the claimant’s title, being the real foundation of the lessee’s right, was thus indirectly determined. These proceedings might take place without the knowledge of the person really in possession; and to prevent the abuse of the action a rule was laid down that the plaintiff in ejectment must give notice to the party in possession, who might then come in and defend the action. When the action came into general use as a mode of trying the title to freeholds, the actual entry, lease and ouster which were necessary to found the action were attended with much inconvenience, and accordingly Lord Chief Justice Rolle during the Protectorate (c. 1657) substituted for them the fictitious averments already described. The action of ejectment is now only a curiosity of legal history. Its fictitious suitors were swept away by the Common Law Procedure Act of 1852. A form of writ was prescribed, in which the person in possession of the disputed premises by name and all persons entitled to defend the possession were informed that the plaintiff claimed to be entitled to possession, and required to appear in court to defend the possession of the property or such part of it as they should think fit. In the form of the writ and in some other respects ejectment still differed from other actions. But, as already mentioned, it has now been assimilated (under the name of action for the recovery of lands) to ordinary actions by the Rules of the Supreme Court. It is commenced by writ of summons, and—subject to the rules as to summary judgments (v. inf.)—proceeds along the usual course of pleadings and trial to judgment; but is subject to one special rule, viz: that except by leave of the Court or a judge the only claims which may be joined with one for recovery of land are claims in respect of arrears of rent or double value for holding over, or mesne profits (i.e. the value of the land during the period of illegal possession), or damages for breach of a contract under which the premises are held or for any wrong or injury to the premises claimed (R.S.C., O. xviii. r. 2). These claims were formerly recoverable by an independent action.

With regard to actions for the recovery of land—apart from the relationship of landlord and tenant—the only point that need be noted is the presumption of law in favour of the actual possessor of the land in dispute. Where the action is brought by a landlord against his tenant, there is of course no presumption against the landlord’s title arising from the tenant’s possession. By the Common Law Procedure Act 1852 (ss. 210-212) special provision was made for the prompt recovery of demised premises where half a year’s rent was in arrear and the landlord was entitled to re-enter for non-payment. These provisions are still in force, but advantage is now more generally taken of the summary judgment procedure introduced by the Rules of the Supreme Court (Order 3, r. 6.). This procedure may be adopted when (a) the tenant’s term has expired, (b) or has been duly determined by notice to quit, or (c) has become liable to forfeiture for non-payment of rent, and applies not only to the tenant but to persons claiming under him. The writ is specially endorsed with the plaintiff’s claim to recover the land with or without rent or mesne profits, and summary judgment obtained if no substantial defence is disclosed. Where an action to recover land is brought against the tenant by a person claiming adversely to the landlord, the tenant is bound, under penalty of forfeiting the value of three years’ improved or rack rent of the premises, to give notice to the landlord in order that he may appear and defend his title. Actions for the recovery of land, other than land belonging to spiritual corporations and to the crown, are barred in 12 years (Real Property Limitation Acts 1833 (s. 29) and 1874 (s. 1). A landlord can recover possession in the county court (i.) by an action for the recovery of possession, where neither the value of the premises nor the rent exceeds £100 a year, and the tenant is holding over (County Courts Acts of 1888, s. 138, and 1903, s. 3); (ii.) by “an action of ejectment,” where (a) the value or rent of the premises does not exceed £100, (b) half a year’s rent is in arrear, and (c) no sufficient distress (see Rent) is to be found on the premises (Act of 1888, s. 139; Act of 1903, s. 3; County Court Rules 1903, Ord. v. rule 3). Where a tenant at a rent not exceeding £20 a year of premises at will, or for a term not exceeding 7 years, refuses nor neglects, on the determination or expiration of his interest, to deliver up possession, such possession may be recovered by proceedings before justices under the Small Tenements Recovery Act 1838, an enactment which has been extended to the recovery of allotments. Under the Distress for Rent Act 1737, and the Deserted Tenements Act 1817, a landlord can have himself put by the order of two justices into premises deserted by the tenant where half a year’s rent is owing and no sufficient distress can be found.

In Ireland, the practice with regard to the recovery of land is regulated by the Rules of the Supreme Court 1891, made under the Judicature (Ireland) Act 1877; and resembles that of England. Possession may be recovered summarily by a special indorsement of the writ, as in England; and there are analogous provisions with regard to the recovery of small tenements (see Land Act, 1860 ss. 84 and 89). The law with regard to the ejectment or eviction of tenants is consolidated by the Land Act 1860. (See ss. 52-66, 68-71, and further under Landlord and Tenant.)

In Scotland, the recovery of land is effected by an action of “removing” or summary ejection. In the case of a tenant “warning” is necessary unless he is bound by his lease to remove without warning. In the case of possessors without title, or a title merely precarious, no warning is needed. A summary process of removing from small holdings is provided for by Sheriff Courts (Scotland) Acts of 1838 and 1851.

In the United States, the old English action of ejectment was adopted to a very limited extent, and where it was so adopted has often been superseded, as in Connecticut, by a single action for all cases of ouster, disseisin or ejectment. In this action, known as an action of disseisin or ejectment, both possession of the land and damages may be recovered. In some of the states a tenant against whom an action of ejectment is brought by a stranger is bound under a penalty, as in England, to give notice of the claim to the landlord in order that he may appear and defend his title.

In French law the landlord’s claim for rent is fairly secured by the hypothec, and by summary powers which exist for the seizure of the effects of defaulting tenants. Eviction or annulment of a lease can only be obtained through the judicial tribunals. The Civil Code deals with the position of a tenant in case of the sale of the property leased. If the lease is by authentic act (acte authentique) or has an ascertained date, the purchaser cannot evict the tenant unless a right to do so was reserved on the lease (art. 1743), and then only on payment of an indemnity (arts. 1744-1747). If the lease is not by authentic act, or has not an ascertained date, the purchaser is not liable for indemnity (art. 1750). The tenant of rural lands is bound to give the landlord notice of acts of usurpation (art. 1768). There are analogous provisions in the Civil Codes of Belgium (arts. 1743 et seq.), Holland (arts. 1613, 1614), Portugal (art. 1572); and see the German Civil Code (arts. 535 et seq.). In many of the colonies there are statutory provisions for the recovery of land or premises on the lines of English law (cf. Ontario, Rev. Stats. 1897, c. 170. ss. 19 et seq.; Manitoba, Rev. Stats. 1902, c. 1903). In others (e.g. New Zealand, Act. No. 55 of 1893, ss. 175-187; British Columbia, Revised Statutes, 1897, c. 182; Cyprus, Ord. 15 of 1895) there has been legislation similar to the Small Tenements Recovery Act 1838.

Authorities.—English Law: Cole on Ejectment; Digby, History of Real Property (3rd ed., London, 1884); Pollock and Maitland, History of English Law (Cambridge, 1895); Foa, Landlord and Tenant (4th ed., London, 1907); Fawcett, Landlord and Tenant (London, 1905). Irish Law: Nolan and Kane’s Statutes relating to the Law of Landlord and Tenant (5th ed., Dublin, 1898); Wylie’s Judicature Acts (Dublin, 1900). Scots Law: Hunter on Landlord and Tenant (4th ed., Edin., 1878); Erskine’s Principles (20th ed., Edin., 1903). American Law: Two Centuries’ Growth of American Law (New York and London, 1901); Bouvier’s Law Dictionary (Boston and London, 1897); Stimson, American Statute Law (Boston, 1886). (A. W. R.)