profits belong to the owner. He must, however, recover the EJECTMENT. land, and the sheriff give possession of it subject to the public easement.81 a grant of the prima tonsura, Ejectment lies on a grant or demise of the prima tonsura, on that is, of the first grass which grows on the land every year, or on a demise of the hay, grass, and aftermath; for the parties in these cases, being entitled to all the profits of the land for the time being, are entitled also, for the same time, to the land itself; and no one can enter thereon while they are so entitled, without being a trespasser. So, a right to the herbage will be sufficient to support an ejectment; but, in all these cases, the action should not be for the land itself, but for the first grass, &c. specifically.82 83 84 ant at will to quit, to for lands es- Ejectment is one of the remedies provided by law, by which against a tena landlord may remove a tenant at will, or by sufferance, after notice where the tenancy has been terminated by the necessary notice to quit.8 It is also the mode by which the state recovers escheated lands; and the proceedings in such cases are required to be in all respects similar to proceedings in ordinary cases.3 The revised statutes provide that, a widow for dower afto whom dower has been admeasured, at the expiration of surement. thirty days from the date of the confirmation of the report of admeasurement, unless the same be appealed from, may bring ejectment to recover the possession of the lands admeasured to her; as she may likewise do on the order of confirmations being affirmed upon appeal.86 ter admea ger lie to res It is also declared that "no action of ejectment shall here- will not lonafter be maintained by a mortgagee, or his assigns or repre- cover mort sentatives, for the recovery of the possession of the mortgaged ses; premises."'101 gaged premi. EJECTMENT. brought by session. Ejectment, being merely a possessory remedy, cannot be Can not be brought by a person already in possession.102 The statutes one in pos- having abolished fines, and provided for the service of the declaration in cases of vacant possession, an actual entry, Actual entry independently of any statutory provision, can no longer be necessary in order to commence an ejectment. never neces sary. Lies for de mised premi ses for non Ejectment is also by statute, a remedy by which a landlord payment of may recover his premises for nonpayment of rent. It is half a year's provided that "whenever any half year's rent or more shall be rear and no in arrear from any tenant to his landlord, and no sufficient rent when rent is in ar sufficient dis premises and a right of re tress on the distress can be found on the premises to satisfy the rent due, landlord has if the landlord has a subsisting right by law to re-enter for the entry. nonpayment of such rent, he may bring an action of ejectment for the recovery of the possession of the demised premises; and the service of the delaration therein, shall be deemed, and stand instead of, a demand of the rent in arrear, and of a re-entry on the demised premises." And, by the next section, "if, upon the trial of the cause, it shall be proved, or upon judgment by default, against the defendant, it shall appear to the court by affidavit, that the landlord had a right to commence such action, according to the provisions of the preceding section, the plaintiff in such ejectment, shall have judgment to recover the possession of the demised premises and his costs, and the court shall award execution therefor." Tender or 1987 The manner in which a tenant may terminate the suit, or in payment of which he or his mortgagee may, after execution, regain the minate the possession of the premises, by a tender or payment of the rent, rent suit, &c. costs, and charges, within six months after delivery of possession, and the bill which the lessee is allowed to file in equity for relief, will be considered when we come to treat of the proceedings in this action. 102 2 Caines' Rep. 335. 87 2 R. St. 505. P. 3. Ch. 8. T. 9. s. 30. 31. 1988 ving been in possession years may termination claim. for that purpose, and their consequences. In order to compel the determination of claims to real pro- EJECTMENT. perty, where the claimant might choose to delay the assertion of Any one hathem, the statutes provide, that "where any person, singly, or for three he and those whose estate he has, shall have been for three years compel a dein the actual possession of any lands or tenements claiming of any other the same in fee or for life, he may compel a determination upon any claim which any other person may make to any estate in fee or for life, in possession, reversion, or remainder, to such lands and tenements, in the manner, and by the proceedings, hereinafter specified." These proceedings, which will be treated of under the action Proceedings of ejectment, are commenced by the service of a notice upon the claimant to which he is allowed to appear, and plead a denial of the three years possession; and if the proceedings are not barred in limine by this plea, they result either in a judg ment which bars the claimant and those claiming under him by title accruing subsequently to notice of the commencement of the proceedings, of all claim to any estate of inheritance or freehold in the premises, or else in an action of ejectment, by the claimant against the person instituting the proceedings, for the trial of the title.89 It is declared that "in such action of ejectment, a judgment obtained by either party, shall be conclusive against the other party, as to the title established in such action; and also against all persons claiming under such party, by title accruing subsequently to the service of the notice herein before provided."90 If the plaintiff recover and be entitled to the possession, he has a writ of possession and proceeds for the mesne profits as in ordinary cases of recovery in ejectment. If he be not then entitled to the possession, either he or those claiming under him, may, whenever their right of possession accrues, have an action of ejectment as in $3 * 2 R. St. 312. P. 3. Ch. 5. T. 2. s. 1. 392 R. St. 313. s. 2. 5-14. 90 2 R. St. 314. P. 3. Ch. 5. T. 2. s. 14. EJECTMENT other cases.9 91 Judgment in ejectment But jurisdiction in these cases is limited to the supreme court.92 By a judgment in ejectment, the plaintiff recovers the and its ef possession of the premises in question. The effect of such judgment as a bar to other suits, is particularly defined in the revised statutes,93 and will be more fully treated of hereafter.94 No longer a mixed action. Ejectment was called a mixed action, because, as in real actions, the land was recovered, and damages also, as in personal actions. But this name is no longer applicable, both because real actions are abolished, and damages are not now recovered.95 MESNE PROFITS. MESNE Trespass for them abolished. The revised statutes have abolished the action of trespass PROFITS. for mesne profits; a remedy which the law allowed, against the person actually in possession, after a recovery in ejectment, to recover those profits, and in some cases the costs in the ejectment suit and of the writ of possession, in the shape of damages; the damages in the ejectment itself being merely nominal. Remedy sub stituted by ordinary ca ses of dower. As a substitute for this action, the revised statutes provide statute, in that "the plaintiff recovering judgment in ejectment in any of ses and in ea- the cases in which such action may be maintained, shall also be entitled to recover damages against the defendant for the rents and profits of the premises recovered. But if such action be brought for the recovery of dower, the plaintiff shall be entitled to recover such damages only in the cases and to the extent prescribed in the first chapter of the second part of the revised statutes.""96 "Instead of the action of trespass for mesne profits hereto 91 2 R. St. 314. s. 15. 16. 92 2 R. St. 313. s. 2. 4. 93 2 R. St. 309. P. 3. Ch. 5. T. 1. s. 36. 37. 38. 39. 40. 41. 42. 94 See Action of Ejectment. 95 2 R. St. 308. P. 3. Ch. 5. T. 1. s. 33. 34. 96 2 R. St. 310. s. 43. fore used the plaintiff seeking to recover such damages, shall within one year after the docketing of the judgment, make and file a suggestion of such claim; which shall be entered with the proceedings thereon upon the record of such judgment, or be attached thereto, as a continuation of the same."97 The statutes then provide for the form and service of this suggestion and the subsequent proceedings which will be treated of in their proper place. MESNE PROFITS. in relation to The provisions on this subject, in relation to dower, referred Provisions to in the above section are inserted here in order that the dower. reader may have a view of the entire subject. They are as follows: "Whenever in any action brought for the purpose, a widow shall recover her dower in lands of which her husband shall have died seized, she shall be entitled also to recover damages for the withholding of such dower."'98 "Such damages shall be one third part of the annual value of the mesne profits of the lands, in which she shall so recover her dower, to be estimated in a suit against the heirs of her husband, from the time of his death; and in suits against other persons, from the time of her demanding her dower of such persons; and in all cases to be estimated to the time of recovering judgment for such damages, but not to exceed six years in the whole, in any case."'99 "Such damages shall not be estimated for the use of any permanent improvements, made after the death of her husband by his heirs or by any other person claiming title to such lands."100 "Where a widow shall recover her dower in any lands aliened by the heir of her husband, she shall be entitled to recover of such heir, in an action on the case, her damages for |