The Right To Enter

VII. The Right to Enter (to be read in conjunction with Whilton, assize and attaint) These documents are yearbook reports. The examples of late twelfth century assizes of novel disseisin that we had before were records from the plea rolls: official court records. These are reports, quasi-transcripts of legal argument in court taken down (we think) by apprentice lawyers. One can thus have two different accounts of the same case: the record and the yearbook report. Before approaching these materials, reflect on why, in the Whilton Dispute, Felicia's guardian put her onto the land and what that gave her. We will call that "contact seisin," (not a term known to medieval law or other legal historians) because it comes alive in a properly entitled person on contact with the land. These three cases are about what happened with contact seisin, which is essentially the obverse of the right to enter. Lawyers beware! This is the "right to enter", which is the right to intrude oneself onto the land of a wrongful possessor. You will want to keep this different in your mind from the "right of entry" which is the reversionary interest retained in the grantor in a grant of the form: "to A and his heirs, but if the land is used for other than agricultural purposes, then the grantor may enter and resume his previous estate." In the right of entry, the entry is made on a person who has voidable but valid title; with the right to enter, the possessor does not have valid title. Moreover, the right of entry arises because of a specific reservation by the grantor; the right to enter arises because the land has been wrongfully taken out of the hands of those who should have possession. VII.A. Anon v. daughter of Richard (1334) Lib. Ass. 8 Edward III, pl. 25, f. 17 Assize of Novel Disseisin The complaint was made concerning a messuage and it was found by verdict that one Richard leased the messuage to one A. to have and to hold to him for all his life, the reversion[1] to him and his heirs without rendering anything per year. The which Richard was indicted for felony and taken and imprisoned.[2] And he granted to the plaintiff the reversion while he was in prison for such intent that he would aid him at his delivery [from gaol.] And the tenant attorned[3] by payment of 1d. Then Richard was arraigned for this felony, and the plaintiff aided him at his deliverance.[4] And when he was found a clerk,[5] he aided him at his purgation. Afterwards, the tenant at term of life died, and Richard entered immediately, and he enfeoffed this woman against whom the assize is brought; she was his own daughter. And he delivered seisin to her, and the plaintiff came to the house. And because he was not able to enter by the door, he entered by the window. And when half his body was inside the house and the other half outside, he was pulled back out. Wherefore he now brings this assize.

The assize was asked if Richard was in prison at the suit of the plaintiff or in his prison or in his custody when he granted etc., or if he did it by duress. The assize says no. Wherefore it was adjudged that the plaintiff recover etc. See however that the woman was in by feoffment, but the other entered on the delivery of strong seisin. See the manner of attornment etc., M8E3 Dures 17. 2. How had the plaintiff gained title: by feoffment or inheritance? How had the defendant gained title? 3. Lawyers are supposed to be dignified people. What do you think of this lawyer crawling through a window and caught half-way in? Why did he not use the door? (This is a serious question.) What did the daughter do in pulling him out? 4. What right, then, does a grantee of a reversion have, once the tenant has attorned? Why is the attornment necessary? What has happened here is a transformation in what it takes to be seised. Of course, one had to be seised if one wanted to bring an assize of novel disseisin. The plaintiff in crawling in the window had been on the tenement, somewhat possessed. Since he was somewhat possessed and he had the right to be possessed, his possession was deemed lawful, that is, he was so seised that he was disseised when the daughter dragged him out of the window. Attornment to the reversioner after the grant to him of the reversion thus gives the reversioner sufficient right that he can actualize his seisin by entering the land. VII.B.: Richard & Roburga v. W.G. (1365) Lib. Ass. 39 Ed. III, pl. 11, f. 234 In an assize of novel disseisin brought by one Richard and Roburga his wife against one W.G., it was found by verdict that one H.G. and J. his wife (as of the right of J.) had been seised etc., until disseised by one M. and that H. and J. often had claimed the lands (and made to show their right) and wanted to enter but did not dare and were unable to. And it was found that M. died seised of this estate, after whose death G. entered as son and heir, on whose possession H. and J. often claimed the lands and showed their deed in the vill where the lands were; they wanted to have entered but did not dare and were unable to. And it was found that G. died seised of this estate, after whose death one Edwild as guardian of Roburga entered, on whose possession H. and J. wanted to have entered, on whose possession H. and J. wanted to have entered and they showed their deeds in the same vill and neither dared nor were able to enter. And the assize was asked if he had made any disturbance on H. and J.; the assize says that he did not, but says that for fear of putting foot

on the tenements H. and J. dared not enter. And it was found that afterwards J. died, after whose death H. claimed as above and afterwards died. After whose death W.G. entered as son and heir of J. And on this, the verdict was adjourned to Westminster. And because it was found by verdict that H. and J. never put foot [on the land] even though it was found that they claimed on the possession of M. and likewise on the possession of G. and on the possession of Richard and Roburga, still this cannot be adjudged entry if they did not put the foot and sufficiently enter it and were not ousted -- or otherwise that it had been found that for fear of death they did not dare enter. And likewise it was found that G. and also Roburga entered, both the one and the other, by descent of heritage, such that it was not congeable for W. who was the heir of J. to oust them. Wherefore it was adjudged that Richard and Roburga recover, and likewise their damages etc. Wherefore etc.

H.G. = J.(original disseisees) M (original disseisor)

G Edwild (guardian W.G. (disseisor now) of Roburga) Roburga (plaintiff) 1. The first thing one must do in any report, is ask what action the plaintiff is bringing; nothing will make sense until you understand what writ the case is brought under. Then note the date; this case is 30 years later than number VII.A. 2. This action was brought against W.G.; why was it important that H and J had never put foot on the land again? What if it had been established that the reason they did not do so was fear of death, and not just a good shaking up? What, then, does seisin mean? If the original disseisees (H.G. and J.) had ever interrupted the possession of the descendants of M, they would have been able to pass on to W.G. sufficient seisin that W.G.'s entry on the land would have been protected even against the assize of novel disseisin. But uninterrupted possession through two descents was too strong a title to allow a mere entry to disturb Roburga. W.G. could, of course, bring a writ of entry sur disseisin in the post and then a writ of right; he should be able to prevail. But he cannot simply enter the land. 3. Nevertheless, the justices are willing to contemplate the possibility that if the original disseisees had been afraid for their very lives, that they could have sufficiently interrupted the descents merely by getting into sight of the land and claiming it in front of witnesses.

This is amazing: it means that seisin can leap into them without physical contact under at least one kind of situation. 4. Thus, once the assize of novel disseisin begins to look into title at all (title in terms of inheritable claim), then there is an incentive for claimants to enter the land simply to be disseised, so that they can then bring the assize of novel disseisin. The justices then had to decide what kind of contact with the land was sufficient to bring such ancestral seisin to life. With the Whilton dispute, in the 1270s, it seemed that people wanted to be in possession for a substantial time. By the 1330s, the lawyer could be disseised even though he was only half-way in the window. By the end of the fourteenth century, if the claimants were in fear of their very lives, they did not even have to come in physical contact. Nevertheless, the justices had to decide and then increasingly they expanded the situations under which a claimant could rightfully intrude on a wrongful possessor.

VII.C. Anon (1499) YB. M 15 Hen. VIII, no. 12 Court of common pleas The problem of individuals asserting their title by entering onto land so that they would be disseised and could thus bring novel disseisin was sufficiently serious that parliament passed statutes of forcible entry, one in the late fourteenth century that simply forbade illegal forcible entries, later ones that spawned a specific action to control such entries. In a writ concerning entry on the statute of the 8th year [of Henry VI: 1429-30], the plaintiff supposed that the defendant with force and arms entered in a house and 16 acres of land. The defendant says that a stranger was in seisin and enfeoffed him (and he gave color[6] to the plaintiff) by force of which he entered peaceably, without this that he entered with force. And the plaintiff made title and traversed the bar.[7] And the issue was found with the plaintiff. And it was held by all the justices that the force will not be inquired of, because inasmuch as the title was found against the defendant, he will be convicted of force, and likewise the converse, if the bar be found with the defendant the force will not be inquired of. And thus note, that the defendant ought to traverse the force if he entitles himself, and it will not be inquired of at the suit of the party, because whether the title is found with one or

against one, it will make an end of everything, because if the title of the plaintiff not be good, even if the defendant entered with force, the plaintiff has no cause of action. But in this case the one who has entered with force will be indicted and of this will be fined to the king. And if the defendant entered peaceably or his entry was not congeable,[8] he can say that he did not enter against the form of the statute. And in such a way the force will be inquired and also the disseisin. But if he makes title as above, which is found against him, then this will be deemed his folly. 1. This is a case on the statute of forcible entry; it is in the nature of a writ of trespass, which you have not yet had. What is "giving color"? What does it mean that "the plaintiff made title and traversed the bar"? 2. According to this case, what are one's pleading options, and what are the rights of a person properly entitled, although not in seisin? This remedy is designed expressly to regulate those who were entering land so that they could be disseised and thus bring novel disseisin. Rightful tenants subjected to this kind of annoying entry were thus given a way of striking back at those who entered wrongfully. Thus the right to enter arose from novel disseisin inquiring into title to determine if one was so seised that he could be disseised; when the standards for thus having seisin spring up into one entering the land became attenuated, this remedy was brought forward to protect proper tenants and make people with defective claims more hesitant to enter. VII.D. Trespass to test title: Henale v. Cartere CP40/1090, m. 115 (1536) court of common pleas You should be immediately aware that this case is not a "real action," that is, an action conceptualzed as a property action for land. Rather it is a pesonal action aiming at damages for a wrong done. We have not covered these actions yet. From the early fourteenth century litigants used such actions to see how a local jury would decide a property issue by putting it to the jury as a trespassory case that depended on the jury's assessment of title to the land on which the trespass occurred. The remedy was only damages, but a successful suit would leave the loser in no doubt about the countryside's opinion on the matter of title; it would also leave the victor completely capable of using the land further. The most prudent course for the loser in such a situation was to withdraw and assert his title, if he was still convinced of its validity, by a real action. In the sixteenth century, for awhile, trespass to test title [my term] appeared a genuine rival to novel disseisin. Be aware that this is not the Texas action of "trespass to try title," because the remedy here is only damages. Kent. Reginald Carter late of Cranbrook, fuller, in the abovesaid county was attached to answer Walter Henale concerning a plea why with force and arms he broke the close of the same Walter at Cranbrook and trampled and destroyed his hay to the value of 40s there

recently growing by walking with his feet, and he inflicted other enormities on him to the grave damage of the same Walter and against the now king's peace etc. And whereof the same Walter by Thomas Hendeley his attorney complains that the abovesaid Reginald on 20 April 1535 with force and arms etc., broke the close of the same Walter at Cranbrook and trampled and destroyed his hay to value etc., recently growing there by walking with his feet, and other enormities etc., to the grave damage etc., and against the peace etc., wherefore he says that he is worse off and has damage to the value of 100s. And thereof he produces suit. And the abovesaid Reginald by John Selyard his attorney comes and defends force and injury when etc., and as to coming with force and arms he says that he is not guilty and of this he puts himself on the countryside. And the abovesaid Walter similarly. And as to the residue of the abovesaid trespass above supposed to be done, the same Reginald says that the abovesaid Walter ought not have his action abovesaid against him, because he says that the abovesaid close as well as the place in which it is supposed the abovesaid trespass happened and at the abovesaid time at which it is supposed that the abovesaid trespass happened was a garden containing in itself a half acre of land with appurtenances in the abovesaid Cranbrook lying on the eastern part of a certain pond there called Sharpys Pond, whereof a long time before the time at which etc., a certain William Sharpy was seised in demesne as of fee, and being thus seised thereof a long time before the abovesaid time at which etc., he died seised thereof. After his death the abovesaid garden with appurtenances descended to a certain Joan now the wife of the same Reginald as to daughter and heir of the abovesaid William, whereby the abovesaid Reginald and Joan entered into the abovesaid garden and were thereof seised in their demesne as of fee in the right of the same Joan.[9] And the abovesaid Walter[10] claims the abovesaid garden by color of a certain charter of demise made thereof to him for the term of his life by the abovesaid William in his life, whereas[11] nothing of the abovesaid garden ever transfered into the possession of the same Walter by that charter before he entered in the same garden before the time at which etc., on the possession of which certain Walter thereof the same Reginald afterwards, to wit at the abovesaid time at which etc., reentered, and he broke the close abovesaid in it and trampled and destroyed the abovesaid hay to the value abovesaid then growing there by walking with his feet as well he might. And this he is prepared to verify, wherefore he seeks judgment if the abovesaid Walter ought to have his abovesaid action against him etc. And the abovesaid Walter says that he ought not be precluded from his abovesaid action by anything alleged above, because he says that a certain John, abbot of the monastery of Battle in Sussex, was seised of the abovesaid garden in demesne as of fee in the right of his abovesaid monastery and being thus seised thereof a long time before the time at which etc., to wit _____ day ______ in 1535 at Cranbrook abovesaid demised that garden to the same Walter to have and occupy to himself and his assigns from the feast of St. Michael archangel then next following until the end of a term of 99 years then next following and fully completed, by virtue of which demise the same Walter entered into the abovesaid garden and was thereof possessed until the abovesaid Reginald on the say and year abovesaid specified in his abovesaid count before, with force and arms abovesaid broke the abovesaid close in the same and trampled and destroyed the abovesaid hay to the value etc., there then growing by walking with his feet just as he above complained against him, without this that the abovesaid William Sharpey died seised of the abovesaid garden as the

abovesaid Reginald alleged above. And this he is ready to verify, wherefore because the abovesaid Reginald acknowledged the abovesaid trespass above, he seeks judgment and his damages on the occasion of that trespass to be adjudged to him etc. And the abovesaid Reginald as before says that the abovesaid William Sharpey died seised of the abovesaid garden as he alleged above. And of this he puts himself on the countryside. And the abovesaid Walter similarly. Therefore it is ordered to the sheriff to make to come here at the quindene of John the Baptist 12 [good and law-worthy men] . . . . [There was no jury verdict in this case; a similar case on m. 304 of the same plea roll has a jury verdict, rendering a judgment of 15s in damages and 43s in costs.] Notice that the vital matter put to the jury, about whether William died seised or not, was part of the defendant's alleged title. Although the plaintiff could put forward his title, the matter really rested on the the defendant's reason for entering the land. Note also that there is still a problem with this remedy, in that peaceable people who want to claim their title effectively are still put in a position where they must provoke the tenant by entering on the land. Even though such actions are obviously not socially desireable, the law had spawned this necessity to enter to claim title; using trespass vi et armis (with force and arms) to test the title before the countryside was the tenant's option. The claimants had to provoke him into bringing it.VII. The Right to Enter (to be read in conjunction with Whilton, assize and attaint) These documents are yearbook reports. The examples of late twelfth century assizes of novel disseisin that we had before were records from the plea rolls: official court records. These are reports, quasi-transcripts of legal argument in court taken down (we think) by apprentice lawyers. One can thus have two different accounts of the same case: the record and the yearbook report. Before approaching these materials, reflect on why, in the Whilton Dispute, Felicia's guardian put her onto the land and what that gave her. We will call that "contact seisin," (not a term known to medieval law or other legal historians) because it comes alive in a properly entitled person on contact with the land. These three cases are about what happened with contact seisin, which is essentially the obverse of the right to enter. Lawyers beware! This is the "right to enter", which is the right to intrude oneself onto the land of a wrongful possessor. You will want to keep this different in your mind from the "right of entry" which is the reversionary interest retained in the grantor in a grant of the form: "to A and his heirs, but if the land is used for other than agricultural purposes, then the grantor may enter and resume his previous estate." In the right of entry, the entry is made on a person who has voidable but valid title; with the right to enter, the possessor does not have valid title. Moreover, the right of entry arises because of a specific reservation by the grantor; the right to enter arises because the land has been wrongfully taken out of the hands of those who should have possession.