(Ref: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)
EJECTMENT, remedies. The name of an action which lies for the recovery of the possession of real property, and of damages for the unlawful detention. In its nature it is entirely different from a real action. 2 Term Rep; 696, 700. See 17 S. & R. 187, and, authorities cited.
This subject may be considered with reference, 1st. To the form of the, proceedings. 2d. To the nature of the property or thing to be recovered. 3d. To the right to such property. 4th. To the nature of the ouster or injury. 5th. To the judgment.
In the English practice, which is still adhered to in some states, in order to lay the foundation of this action, the party claiming title enters upon the land, and then gives a lease of it to a third person, who, being ejected by the other claimant, or some one else for him, brings a suit against, the ejector in his own name; to sustain the action the lessee must prove a good title in the lessor, and, in this collateral way, the title is tried. To obviate the difficulty of proving these forms, this action has been made, substantially, a fictitious process. The defendant agrees, and is required to confess that a lease was made to the plaintiff, that he entered under it, and has been ousted by the defendant, or, in other words, to admit lease, entry, and ouster, and that he will rely only upon his title. An actual entry, however, is still supposed, and therefore, an ejectment will not lie, if the right of entry is gone. 3 Bl. Com. 199 to 206. In Pennsylvania, New York, Arkansas, and perhaps other states, these fictions have all been abolished, and the writ of ejectment sets forth the possession of the plaintiff, and an unlawful entry on the part of the defendant.
This action is in general sustainable only for the recovery of the possession of property upon which an entry might in point of fact be made, and of which the sheriff could deliver actual possession: it cannot, therefore, in general, be sustained for the recovery of property which, in legal consideration, is not tangible; as, for a rent, or other incorporeal hereditaments, a water-course, or for a mere privilege of a landing held in common with other citizens of a town. 2 Yeates, 331; 3 Bl. Com. 206; Yelv. 143; Run. Eject. 121 to 136 Ad. Eject. c. 2; 9 John. 298; 16 John. 284.
The title of the party having a right of entry maybe in fee-simple, fee-tail, or for life or years; and if it be the best title to the property the plaintiff will succeed. The plaintiff must recover on the strength. of his title, and not on the weakness or deficiency of that of the defendant. Addis. Rep. 390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288; 4 Burr. 2487; 1 East, R. 246; Run. Eject. 15; 5 T. R. 110.
The injury sustained must in fact or in point of law have amounted to an ouster or dispossession of the lessor of the plaintiff, or of the plaintiff himself, where the fictions have been abolished; for if there be no ouster, or the defendant be not in possession at the time of bringing the action, the plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' R. 335.
The judgment is that the plaintiff do recover his term, of and in the tenements, and, unless the damages be remitted, the damages assessed by the jury with the costs of increase. In Pennsylvania, however, and, it is presumable, in all those states where the fictitious form of this action has been abolished, the plaintiff recovers possession of the land generally, and not simply a term of years in the land. See 2 Seam. 251; 4 B. Monr. 210; 3 Harr. 73; 1 McLean, 87. Vide,generally, Adams on Ej.; 4 Bouv. Inst. n., 3651, et seq.; Run. Ej.; Com. Dig. h.t.; Dane's Ab. h.t.; 1 Chit. Pl. 188 to 193; 18 E. C. L. R. 158; Woodf. L. & T. 354 to 417; 2 Phil. Ev. 169.; 8 Vin. Ab. 323; Arch. Civ. Pl. 503; 2 Sell. Pr. 85; Chit. Pr. Index, h.t.; Bac. Ab. h. t Doct. Pl. 227; Am. Dig. h.t.; Report of the Commissioners to Revise the Civil Code of Pennsylvania, January 16, 1835, pp. 80, 81, 83; Coop. Justinian, 448.
[Primary ref.: Colin Rhys Lovell's English Constitutional and Legal History, Oxford University Press, c1962. ]
Using the law, holders of an entailed estate could get around the De Donis and Qia Emptores statutes or "bar" or "dock" entail by having a buyer bring suit against him, alleging a better title. On the day of trial, the defendant seller would not appear and the plaintiff purchaser would win by default. This came to be known as "common recovery," later "fines and recovery." The practice became so common that the courts ceased to demand formal action and the parties simply filed a deed for recording in Chancery. A person with a future interest in the property (heir of the seller) could file a "caveat" to frustrate the deed.
Another method, "vouching to warranty," was to have the purchaser enter a plea that he had received the title from a third party who had guaranteed or warranteed its title to be clear, so the action should lie against that party. "That party" was the justice clerk, who was ruled to have no right to warrant a title to land he never possessed. The justices ordered delivery to the buyer who acquired a free title. [Precursor to modern title insurance.]