AuthorJeffrey Lehman, Shirelle Phelps

Page 83

One of the old FORMS OF ACTION for recovery of the possession of real property.

Originally the ownership of land in England could be passed to another only by delivering the actual possession of the land. The present owner passed title to another by picking up a clod of dirt on the land and handing it to the other person in front of others from the community. This ceremonial act from ancient times was called LIVERY OF SEISIN, or delivery of possession. Instead of a clod, a twig or a key could be handed over as a symbol of ownership, but only later was it permissible to deliver the symbol of ownership anywhere but on the land itself. As time passed and writing became more common, a written deed could symbolize the delivery of ownership. The purpose of the ceremony was to make the acquiring of land a public act generally known in the community, so that disputes were less likely to arise.

Everyone in old England was tied to the land. The feudal land tenement system determined social, economic, political, and legal rights. The stability of the system was founded on the security of each person's right to possess or own a parcel of land. For this reason the first kinds of lawsuits were those allowing the assertion of rights in land. By the end of the thirteenth century, the

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action of TRESPASS was allowed against one who intruded on property possessed by the plaintiff. The action of ejectment branched off from this as another action for the relief of one whose possession had been disturbed. By it, the plaintiff might claim that he or she had been in possession of a certain parcel of land and that the land had been taken by the defendant. The plaintiff could do this by obtaining from the clerk of the court a writ of entry?a command from the king telling the defendant to let the plaintiff go back on the land taken by the defendant or to appear in court to answer the charge. The defendant could then appear and deny that the plaintiff had been dispossessed or show that as the defendant, he or she had a prior and better right to hold the land. A trial was held to settle the issue. If it were found that the defendant had wrongfully withheld possession of...

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