Lee v. Ashley, 2 N.C. 214, 1 Hayw. 214 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 214, 1 Hayw. 214

Lucy Lee v. William Ashley.

Trespass, quart clausum fregit; not guilty, and libe-rum tenenicntum pleaded. It appeared in evidence, that the land on which the trespass C alleged (o have been committed, was a frac! of two hum'red and thirty acres, which was part of a tract of fifteen hundred acres, of which Zachariah Lee, the husband of the Plaintiff, died seised ; who at the time of his death, left a son and heir at law, now of the age of thirty-one years. This son had sold all the land except the two hundred and thirty acres, some considerable time ago; then he sold the residue to John Field, who sold to the present Defendant. 'The Plaintiff had kept possession from the death of her husband until the conveyance to Field of the residue, 'which lately took place. Site verbally assented to this latter conveyance, Field and the son on their parts agreeing that she should possess one hundred acres during her life. Upon these fact* the counsel for the Defendant, insisted that the plea of liberum tenementum was supported. He argued, that though it be. sometimes laid down in the books, that possession is of itself sufficient to support an action of trespass, quare clausum fregit, and that the action of trespass is an action for the violation of possession, the true distinction is, that possession only is sufficient to support ¡he action against a mere trespasser, who hath no cause ot justification or excuse, or in other words, against a wrong doer. 2 Sir, 1238, Bull. 93, But where the Defendant hath the freehold, and pleads it, there a hare possession is not sufficient; for then the, entry of the Defendant is lawful, and not a trespass. In such case the P<a¡rirtff can no otherwise support the action, than by shewing an interest in the soil or rite profits, either derived under the Defendant, or precedent to, his title, as will take away the Defendant’s right to enter for the present. -Some of these in'stances are sfated in Bull. 85, in the case of Welch and Hall there cited ; and others in 3 Bl. Com. 210, Bull. 93, 94. Here indeed, ihe Plaintiff hath continued the possession from ¡he time of her husband’s death, but upon his death die fee and freehold descended to the son, who it is proven lived upon the land with his mother, and consequently had the legal possession ; and he hath conveyed both Hie fee and freehold to the Defendant: his entry was therefore regular, unless it can he shewn, notwithstanding the Defendant’s having the freehold, that she hat!) a right to mainumi her possession against him. She hath not replied her having any sueh interest by way of avoiding the plea of liberum tenementum indeed the fact is, she hath no sueh interest to reply. It hath been argued for her, that upon the death of her husband she had a right to continue the possession, notwithstanding the heir’s title until her dower should be assigned ; and for this her counsel cited 2 Bl. Com. 135. Allowing the fullest extent, to this doctrine, she could continue but forty days in possession, and afte'r the expiration of that time, if her dower had not been assigned in the interim, she was liable to be turned out of possession by the heir, and could have no other action hut that, of dower to recover the possession of any part; though before the expiration of the foriy days, the <>1¡! law provided her with si writ de quarantina habenda, to be decided instanter by the Sheriff. Co. Lilt. 31, b. 2 Inst. 16, but no such writ lying after the-forty days, is a proof that she was-no longer entitled to possession though her dower' were not assigned. Had the law intended that her possession should continue until the actual assignment of dower, it would have, provided a remedy in case of dispossession previous thereto.

As to the doubt suggested by one of the court, relative i.o the estate in dower being considered as a part of the estate of tbe deceased still continuing, so that the law does not cast, the freehold ¡nereof, but only the reversion upon the heir; for which were cited the authorities of Co, Lilt. 241, a 15, a 31, a and b 327, 44, 45. (see also Gilbert’s Ten. 23, Hawk. Mr. 23). The best answer to that is, 2 Bl. Com. 135, 136, where it is said, the assignment of dower must.be made by the heir or his guardian, to entitle the lord of the fee *o demand his services ..film heir, who fey his entry to assign dower, becomes tenant of tho land to the Ion!, and tlr widow immediate tenant to him. Wli-ntv, ií follows, that the heir has the right of entry and freehold, which the law casts upon him front the moment of ine ancestor's death, and not a reversion only.

Per curiam

; we entertain some doubt upon live facts platen in evidence relative to this plea of liberum tcnemen-ium — let the jury give their v»t*(lict as they shall think proper; and if oil tier party be dissatisfied, he may move for a new trial, and then the iaw will be more deliberatety considered.

The jury found Sor the íS: leuda nt, and the cause was no more stirred.

Note. — When tin. plea of liberum Unemuitun is pleaded, which b ralle i to common oar in the action of trespass, if the Defendant has not gtv.-n a name to, or described exactly, too locus in quo, m his d«-claraiion.it becomes necessary for him to malce-i novel assignment, to which the 'Defendant again pleads ; but if the Plaintiff describes the 'units in quo in his declaration, with precision, then the plea of liberum t»ncmcntmm pula it upon 'he Defendant to prove that the locus in qua thus desc’ibfcd, is his freehold; and tin: Plaintiff need oniy deny the plea without a novel assig .men.. Uul in die first case, il the Plain, tit"does not make a new assignment, ascertaining the place, the De-fiendan; may prove any close ihit is the freehold, and that will support his plea. Rut. the freehold, I appr-h.-nd, must he proved ¡o be within the i,.ace laid for the venue. Vide 2 LA. Rep. 1089. Salk. 453. 6 Mo. 119, bid if the action ofitrs sp.u-.s oe, de bonis asportatis, .old the 1) f. mUm pleaded that the locus in quo is his freehold, and hat the goods were th. n damage feasant, then he mum describe the ¡dace with certainly — the locality is a material pan of his plea — and without it the ph-i is not go-si. So u to trespass, the Defendant pleaded son assault proof of an assault by the Viaintf/on the same day, or i.elor. tne action brought, supports the pita. jio th it if in tact there were two halterios, one produced by the Plaintiff’s owii assault, tne other not, the Plaintiff must new i. sign and distinguish the buttery not brought on ¡h his own assault — but it there are two coun'r stating the nvo batteries, and t.vo justifications or pleas of sob assault,- one of them will be untrue, and upon that the Plaintiff mac recover without a new assignment. Buller 92.

Note. — It appears evident from the authorities cited on that head, above that the wife is deemed to continue the estate and pos-esston of the husband after his a nth ; (lie reason of which probably maybe, that if she claimed under the heir and not paramount, her dow"' as being a pari of his estate, might be subject to hi, prior charge.! and incumbrances, which is avoided by her claiming above him. Als.,-5t she claimed under the heir and from him, and was not in, in con tino anee other liusoa. d'.-t estate — then if die husband wa-. tenant in tail, and he died without issue, in that case there would be no heir nor any cstat.. tail, ami she would lose her dower. Yet by l<w she is dowabl", and of necessity die estate tai! of the husband must have continuance as to one third until her death. Vide 8 Rep. 34. 6 Rep. 41. 2 Bac. Ab. 127. Again, were the dower apart of thr hair’s e-~ late, then by the descent h“ might be remitted to his ancient and better title, and the estate descended thereby, cease altogether, and the widow be defeated of dower. This the law does not allow. Her dower therefore is not derived out of the heir’s estate, nor suppor-td by it, but-out of the estate of the husband, continued by fiction of law after his death 5 which fiction is invented for the purpose of avoiding the inconveniences above stated, and others that might result were it not for this fiction.