Hems v. Stroud, 1 N.C. 61, 1 Mart. 61 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 61, 1 Mart. 61

Hems vs. Stroud or Stromer.

Pasch. 1 Car.

EJECTIONE firmæ of the manor of Feifield, and he declared on a demise of Dr. Stewart, of the manor of Feifield and shewed an ejectment of the manor, and the jury found the defendant culp. quoad messuag. curtilag. parcel maner. predict. The ejectment was brought against husband and wife, and the wife alone found culp. And it was well enough, for if any one be found culp. it is sufficient. But it was moved in arrest of judgment, that the ejectione firmæ was brought of a manor and the defendant pleaded non culp. and the jury found him culp. quoad messuag. unum curtilag, and for the rest non culp. and they are found culp. only of a parcel of the manor, and the action is only for the manor and not of any acres. But if the ejectione firmæ had been for so many *acres of the manor, and the defendant had been found culp. of any number of acres, it would have been a good verdict, upon which judgment might have been given. But when the demand is of a manor, if he be not found culp. of the manor, he is not guilty at all. In the Common Bench, P. 10 Jac. in evidence to the jury on a writ of entry sur disseisin, Delabar vs. Huldson. The demand was of a manor, and non diffeisivit was pleaded by the tenant. The demandant gave in evidence that the tenant had entered on the demesne of the manor, and had ousted him. The tenant’s counsel required the demandant to prove that it was a manor, and that the tenant had received attornment of the tenants, for without tenants it could not be a manor: and the demandant failing to prove it to be a manor, was nonsuited. And per Finch; Recorder of London, who moved in arrest of judgment: This case was an ejectione firmæ of a rectory, and non culp. pleaded; it was shewn in evidence that the defendant took the dismes; but the plaintiff could not prove that the defendant entered in the glebe lands, and it was resolved, that the taking the dismes was not an ejectment of the rectory; and the plaintiff was nonsuited. Here when it is said that he is not culp. it is meant of the manor and not of the messuage or curtilage.

Noy.

The ejectment is of a manor; the verdict culp. of a messuage and curtilage parcel of the said manor. There is a vast difference between a writ of entry sur disseisin, and an ejectione firmæ, in the one the land is demanded: in the other only, consequently, recovered. It has been said that a man cannot have an ejectione firmæ de uno domo, et pomer. because domus may be a barn, or a mill, and pomer. a garden (orchard, I believe.) With regard to the case of the dismes, if it be law, it does not come up to this. For perhaps he had right to part of the dismes only, and therefore when he brought ejectione firmæ, it was wrong; because a part of the dismes, is of another nature and name. If a man brings debt on the statute 2 E. 6. as proprietor of a rectory, and he proves only that he has a right to part of the tithes, he shall not recover. But here it is found parcel of the manor, Allen and Hay's case, 34 or 32 Eliz. on a writ of entry sur disseisin de uno messagio cum pertinentiis: it was found that the tenant was seized of a house, and purchased another adjoining it of the father in-law of the demandant; and the tenant pulled down both houses and built another on the land he had purchased, and added to it six feet, so that the house he bought contained only ten feet, and now it had sixteen; so that the demandant had only title to part *of the house. Yet the judgment was, that he should recover the house: and, on a writ of error, it was affirmed. The nature of a manor is to contain houses, with lands which are the demesnes, and services, and if the defendant be found culp. of any of these it is well; but it would be otherwise, if it was not a manor. As in 1 H. 7. 29. There one pleaded a gift in tail of the land, remainder to the King, E. 4. and shewed a deed of office with the land; and prayed the help of the King: but he shall not have it, for the land is not part of the office, and is of another nature. But, in this case, the verdict has found that it was a messuage, part of the manor; that it was devised; that entry was made and the plaintiff ousted. A manor contains all these things, and it matters not whether the parcels be expressed or implied. I pray judgment for the plaintiff.

The Recorder. The case I have put, was not for part of the dismes, but of a rectory with the dismes. The case of Allin and Hays disfers. If I be disseised of a manor, and the disseisor severs the rent from the services as in 9 E. 4. I ought to make demand, according to my right, and in respect to me it is a manor adhuc. A man demands a manor and so many acres part thereof, it is well demanded.

Doderidge, J.

Nothing resembles more a manor than a rectory: one is intire, so is the other. The glebe lands resemble the demesnes, and the dismes the services.

The case was not resolved by the Justices.

It was said that the case would be stronger for the defendant if the particulars of it had been found. For the manor in question is only a manor by reputation, and a manor by reputation cannot be demanded by the name of a manor: But it may pass in a conveyance by that name. And nota to compel the plaintiff to prove attornment of the tenants, for otherwise a manor does not pass. Palm. 413. Bendl. 148. Cr. 234. And. 265. Poph. 13. Co. Entr. 642.