In August 1770, with Adams and Jonathan Sewall as his counsel, John Whiting had prevailed in an action of trespass which he had brought against his neighbor Ichabod Ware for a tract of land near Smoking Hill in Wrentham. Referees, under a rule of the Superior Court directing them to fix a boundary between the litigants, had reported that no line could be drawn, because Ware had no claim to any portion of the lands which Whiting claimed.1 Whiting traced his title to Ebenezer Hill, who had died in 1732 owning substantial real estate in Wrentham. In his lifetime Hill had conveyed fifty acres at Smoking Hill to his brother Jabez. William Bollan and Henry Laughton, grantees of Jabez, had conveyed the same premises to Eliphalet Whiting, John’s father. Ware’s unsuccessful claim had been based on a conveyance of several parcels in the same vicinity made in 1734 by Ebenezer’s administrator, Jonathan Whitney, to one Joshua Morse. The claim had failed, apparently because Ware could produce no evidence of the passage of title to him from Morse.2
Perhaps as a result of this decision, Abiel Hill, posthumous daughter and only heir of Ebenezer, brought an action against Whiting, claiming possession of the tract formerly in suit, which she alleged to be 99 ½ acres in extent. Her declaration purported to be in “ejectment.”3 In England, this form of action, originally the remedy of a lessee turned out of the leased premises, had, through an elaborate fiction, become the usual method of trying title to land. The pleadings, which echoed the origin of the action, told a tale in which John Doe, a fictitious lessee of the actual plaintiff purported to sue Richard Roe, an equally nonexistent ejector, in whose name the real party in interest was called upon to defend. If the actual plaintiff succeeded in his suit, he was awarded possession of the land. Since the action was in form only for a single trespass, it could have been brought repeatedly by an unsuccessful plaintiff for later trespasses, but the courts tended to discourage such suits when the title in question was the same. This drawback was rendered of such little effect that by the 18th century ejectment had largely replaced the numerous ancient real actions, with their cumbersome process, technical rules, and narrow scope.4
While the fictional form of ejectment was not unknown in Massachusetts, it seems to have been little used, apparently because of the lack of conclusiveness and a feeling that the adventures of Doe and Roe led to unnecessarily complex and wordy pleading. Instead, “ejectment” was a generic term for a form of action which could embrace any of the ancient real actions and attendant rules that a given case demanded, but which embraced them within a simple form of writ and process that avoided medieval mysteries and led to a trial like that in any other civil suit.5 Abiel’s suit shows that there were situations in which the Massachusetts form was an improvement upon the English.
Her declaration was a form apparently unique to Massachusetts which had some attributes of the ancient assize of mort d’ancestor, but was in effect a variety of writ of entry.6 Even in England one of the ancient forms would have been necessary in her case, because ejectment depended upon a right of entry in the actual plaintiff. Abiel’s right had accrued in 1732, at the death of her father, or at best in 1733, when she was born. Under the applicable statute of limitations, an entry upon lands had to be made within twenty years after the right accrued, or if it had expired during the minority of the claimant, within ten years after his majority. Abiel’s right of entry was thus lost, and with it her right to proceed in ejectment as that action was known in England.7
At the trial in the July 1771 Suffolk Inferior Court, with Adams once again of counsel, Whiting obtained judgment on a demurrer to his plea of not guilty. On appeal to the Superior Court in February 1772 the demurrer was waived and the case went to the jury, which brought in a special verdict. The declaration had alleged that Abiel’s father died seised on 30 October 1732. The jury found that the actual date of his death was 21 October 1732; that if the court should hold that this discrepancy was not a bar to the action, then Abiel could recover 21 acres and 31 rods of the land sued for (apparently a parcel which had not passed under the grant from Ebenezer to Jabez); that otherwise she took nothing.8
At the August 1772 session of the court Adams for Whiting, and Josiah Quincy Jr. for Abiel, argued the question presented. Adams’ minutes (Document I) set out authorities for his position that the date of Ebenezer’s death was a material allegation. Treating the action as a writ of right, he apparently argued that the time in which the ancestor was seised must always be set out, and that the exact date was material because of the statutory periods of limitation for the bringing of actions for the recovery of lands. At the end of these notes, which were probably before him as he argued, he took down the cases cited in opposition by Quincy and made a notation of the court’s unanimous opinion that Abiel could recover in accordance with the verdict.9 The files of the case contain the actual opinion of Judge Trowbridge on this and another point apparently raised by Adams, the validity of a verdict for less land than was sued for.10 This unusual item appears as Document II.
The court’s decision seems sound. Even Adams’ authority indicates that only the fact of seisin, not the precise date, is material. As for the statute of limitations, although in real actions entry or seisin within the required time had to be established by the plaintiff, the discrepancy in dates was not material here.11
1. Min. Bk. 91, SCJ Boston, Aug. 1770, C–1. SF 101696.
2. See the various deeds, extracts from the Wrentham Proprietors’ records, and the deposition of Ebenezer Fisher in the files of Hill v. Whiting. SF 102137. An abstract of Whiting’s title in JA’s hand, based on the foregoing materials, and apparently used in the action against Ware, is in Adams Papers, Microfilms, Reel No. 185.
3. A copy of her declaration is in JA’s Pleadings Book, p. 36–37 above. Although “Abiel” might ordinarily be a man’s name, JA was correct in characterizing her as female in the title to her pleading. Ibid. See a copy of her birth record in SF 102137.
4. See 7 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 4–23; Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 52–56.
5. As to the Massachusetts action and some of the advantages seen in it, see Perham, American Precedents description begins Benoni Perham, American Precedents of Declarations, Boston, 1802. description ends 288–290; Charles Jackson, A Treatise of the Pleadings and Practice in Real Actions 11–13 (Boston, 1828); Asahel Stearns, A Summary of the Law and Practice of Real Actions 91–94, 396–398 note (Boston, 1824). For an example of the use of the fictional form of the action in Massachusetts, see Johnson, Lessee of Stevens v. Hewes, Min. Bk. 81, SCJ Suffolk, Aug. 1765, C—33; review, sub nom. Hewes v. Johnson, id., March 1766, N–23; SF 100633, 100729. In this complicated action arising out of the Land Bank scheme, JA was of counsel for Hewes. The declaration, apparently drafted by Robert Auchmuty, gave no label to the action, but set forth a lease from Timothy Stevens to one “Samuel Johnson, scrivener,” whose name does not appear elsewhere in the file. The actual defendants were alleged to have “Entered, and him the said Samuel from his farm aforesaid ejected.” SF 100729. The form is essentially that given in Sutton, Personal Actions description begins Ralph Sutton, Personal Actions at Common Law, London, 1929. description ends 53–54. The name of the real defendants was probably used either because this was the new declaration served upon them after they had been notified to defend (id. at 54), or because the formality of the completely fictional declaration had been dispensed with. After a demurrer for Hewes in the Inferior Court, Johnson won both the appeal and the review in the Superior Court. Hewes then moved for an appeal to the Privy Council, but it was denied, “there being no provision in the Royal Charter for an appeal in this Case.” (The Charter provided an appeal only “in any Personal Accion wherein the matter in difference doth exceed” £300 sterling. 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 15.) JA’s minutes of the argument, or arguments, which show that the existence of the fiction was recognized, are in Adams Papers, Microfilms, Reel No. 185. For another such action, see Laughton v. Pitts, p. 80–81 above.
6. See p. 36, note 14, above. The usual writ of entry was brought for a disseisin (wrongful entry during the life of one seised). This was a case of an “abatement” (wrongful entry between the death of the seised ancestor and the entry of the heir). Ordinarily in an abatement the plaintiff still had a right of entry under which he could enter, thus momentarily obtaining seisin. Continued possession thereafter by the wrongdoer amounted to a disseisin and the plaintiff could bring a “writ of entry in the quibus,” the usual remedy of the disseised against the disseisor. Abiel had lost her right of entry, however, so that neither entry in the quibus nor the English form of ejectment was available to her. See note 7 below. The assize of mort d’ancestor, an ancient remedy for an abatement, had fallen into disuse, because it did not lie for lands devisable by will. JA in argument seems to have regarded the suit as one on a writ of right, and such a writ would have been appropriate here. The actual form used more closely resembles that in a writ of entry, however, and Stearns definitely classified it as such. See Stearns, Real Actions 146–169, 176–179, 350–359; p. 36, note 14 above. See also 2 Pollock and Maitland, History of English Law description begins Frederick Pollock and Frederic Maitland, The History of English Law Before the Time of Edward I, Cambridge, 1895; 2 vols. description ends 56–74; George Booth, The Nature and Practice of Real Actions 174–178 (London, 1701); Jackson, Real Actions 2–3, 195–196; 3 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends * 186–187.
7. The statute is 21 Jac. 1, c. 16, §§1, 2 (1623). Ejectment might also have failed because some of the lands in dispute had apparently been conveyed under the administrator’s deed to Joshua Morse. Whiting might have raised the defense of ius tertii (a superior right in a third party), which was good in ejectment, but not in a real action. Moreover, since Whiting in all likelihood was not the original wrongful entrant, Abiel’s right of entry might also have been “tolled by descent,” that is, lost by the passage of the property to the heir of the original abator. See 3 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 89–90; 7 id. at 20–21, 61–69; Charles Runnington, Action of Ejectment 12–13 (London, 1781); Jackson, Real Actions 5–6.
8. Min. Bk. 95, SCJ Suffolk, Feb. 1772, C–63. See the proceedings in the Inferior Court where Whiting had made an unsuccessful effort to vouch in his grantors, and the special verdict, with a draft in JA’s hand, in SF 102137.
9. Min. Bk. 95, SCJ Suffolk, Aug. 1772, C–41; SCJ Rec. 1772, fols. 109–110.
10. The decision for Abiel on this point was in accord with authority. See Runnington, Ejectment 109–110, 130–131.
11. See Stephen, Pleading description begins Henry John Stephen, A Treatise on the Principles of Pleading in Civil Actions, London, 1824. description ends 311–314; Stearns, Real Actions 241–242. Compare 3 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 518–519.