Actions for land: ejectment and statutory substitutes

Front Cover
The Harrison company, 1946 - Law - 656 pages
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Contents

INTRODUCTION 1 Object and scope of the work
1
Special notice of the fictitious form of ejectment 3 The subjects to be treated
2
The special style employed 5 The history of the action of ejectment
3
Same continued
4
The original consent rule in ejectment
5
The adoption and retention of the practice in this State
6
Illustrations of the advantages of the fictitious form
7
Same continued
9
Deeds under seal where power of attorney is not sealed 220 Deeds by corporationspublic corporations
233
Same continuedprivate corporations
234
CHAPTER X
237
Same continuedservice upon the minorsappointment of guardian ad litem 256 Same continuedguardian with express power of sale under deed or wil...
238
Transmission of title by sale under execution
239
Prima facie proof of execution sale 225 Same continuednecessity of showing the execution
240
Same continuednecessity of showing legal levy
241
Same continued
245

Development of the action of ejectment in this State
11
Legal fictions especially the fiction in ejectment
12
Same continued 15 Reasons for retaining the fictitious form of ejectment
14
Certain terminology adopted
15
CHAPTER II
17
The nominal parties
18
Equity is the life of a legal fiction
19
Demises 21 The privilege of laying more than one demise
20
How to lay several demises
21
The advantage of laying several demises 24 No demise in the name of a dead lessor
22
The description of the premises
23
Description of the lessors
25
Joint and several demises
26
No right of survivorship in joint demise
28
Right of tenants in common to sue separately
29
Suing for two distinct tracts held by the same defendants 31 Alleging the dates of the lease entry and ouster and the term of the demise
30
No requirement as to paragraphing petition and attaching abstract
31
Limitation on the privilege of naming lessors
32
Same continued
33
Same continuedillustrative cases 36 Same continued
35
Presumption that all demises are authorized
36
The count for mesne profits
37
The process 41 Service
38
Complaint for landJack Jones form
39
Same continuedabstract of title
40
Petitions under the code procedure
41
Distinction between the procedure under the code and under the Jack Jones form
42
Equitable actions for the recovery of land
43
The substantive law unaffected by the form employed
44
CHAPTER III
45
Lands subject to easements
47
Franchises and easements running with the land 54 Mining and timber rights
48
Ejectment not a remedy against mere casual trespasses nuisances etc 56 Same continuedthe distinction drawn
49
Projecting foundations eaves
51
a Land line disputesboundaries
52
Actual possession by the defendant not required
59
Vacant or wild lands
60
Lands in possession of public utility corporations
61
Same continuedthe equity of condemnation
62
What estates recoverable 63 Mesne profits 63 a Use of the declaratory judgment
63
CHAPTER IV
66
Mortgagees
67
Infants 69 Persons of unsound mindnext friendsguardians
69
Administratorsheirs at
70
Executors and devisees 72 Same continued
74
72a Foreign administrators and executors
76
Administrators with will annexed 74 Trusteescestuis que trustent
79
Personal representatives of deceased infants
80
Widow under assignment of dower or years support 77 Remaindermen during the pendency of the lifeestate
81
Head of family under homesteadbeneficiaries
82
Certain observations based on the foregoing sections
84
Cautionary observations
85
CHAPTER V
87
Same continued
91
Misjoinder of defendants 91 Cotenants
93
General remarks
94
CHAPTER VI
96
Same continuedwhen the action is in the fictitious form
99
Same continuedunder the Jack Jones form
100
Disclaimer
101
Dilatory pleas 101 The general issue
102
Statute of limitationsprescription
103
Same continuedas to mesne profits
104
Plea of bankruptcy 105 Plea of former judgment 106 Defending against usurious deed
105
Equitable defenses 108 Setting off improvements against mesne profits
107
Defenses to actions in the Jack Jones form 110 Defenses under the code procedure 111 General remarks
108
CHAPTER VII
110
Amendments changing the description of the land
113
Difference between amending a demise and laying a new demise by amendment
114
Same continued 118 Same continuedillustrative cases
117
Amendment substituting plaintiff suing for
118
Same continuedcautionary observations
119
Amendment adding demise from heirs at law where administrator originally nameddeviseeexecutor
120
Changing the action from the statutory to the fictitious form and vice versa 123 Amendments to actions of complaint for land
122
Amendments adding or striking defendants 125 Amending defenses
123
Amendments to obtain equitable relief
124
Same continuedequitable defenses convert the case into an equitable action
126
CHAPTER VIII
128
The general issue
129
The burden of proof
131
The original source of title 132 Legal title
132
xiii
133
Legal title differentiated from equitable rights 134 Same continued
135
The two recognized methods of transmitting legal titlepurchase descent
137
Transmission of title by operation of law 137 Where the title rests
138
Perfect equities
139
Connection between legal title by perfect equity and the statute of uses
140
Same continuedbond for title with all the purchase money paid
141
Same continuedafteracquired title of vendor inuring to vendee
143
Same continuedother perfect equities
144
Same continueda distinction noted
145
Equities made perfect by decree in equity 145 Parol transfers of title perfected by performance
146
The intrinsic nature of the equity
148
Defenses under equities not equivalent to legal title
151
Perfect equity inferior to title of purchaser for value without notice 149 The difference between suing at law and in equity
152
Same continued
154
The legal estate
155
Estates for years 153 The right of entry
156
Legal title without right of entry 155 Right of entry without legal title 156 What defendant may show under the general issue
157
Proving the locus in
163
Same continued 165 Affirmative defenses 166 Issue as to right to use lessors name
165
Same continueda suggestion as to the proper practice
166
Same continuedburden of proof
167
lssue as to death of lessor
169
CHAPTER IX
171
Other secondary evidence of deeds lost or destroyed
172
Particularity and certainty of proof required
175
Admlssibility of evidence in complaint for land
176
Showing grant from the State
177
Same continued Parol evidence to identify grantee
179
Deeds as evidence
180
Delivery
181
Same continuedpresumption of delivery
182
Production of deeds under notice
183
Registered deeds
184
Attestation and acknowledgment of deeds
186
Same continuedwho may attest deeds officially
188
Ancient deeds 184 Same continuedgenuineness on inspection
190
Same continuedproper custody
191
Same continuedconsistency between the ancient deed and the posses sion
192
Same continuedother corroboration of the genuineness of ancient deeds
193
Functions of the judge and of the jury as to ancient deeds 189 Proving by witnesses the execution of deeds
194
Same continued
195
Same continuedshowing inaccessibility of subscribing witnesses
196
Same continuedproof of handwriting
198
Same continuedcomparison of writingsexperts 194 Same continued
200
Methods of proof cumulative
203
Proof of execution of deedshow far question for the courthow far jury question
204
Copies and other secondary evidence
205
Laying the foundation for secondary evidence
206
Same continued
209
Certified copies of registered deeds
212
Affidavits of forgery
217
Same continued
218
Same continued Trial of the special issue on affidavit of forgery
219
Same continued Affidavits of forgery to ancient deeds
220
Same continued Other similar cases
221
Affidavit of forgery when certified copy of deed is offered 210 Certain salutary legislation suggested
222
The right to attack any deed for forgery 212 Evidence of forgery
223
Special indicia of forgery
225
Powers of attorney
227
Same continuedpower of attorney coupled with interest 216 Revocation of power of attorney
230
Power of sale affected by usury 218 Deeds how executed under power of attorney
231
Same continuedvoid levy v
246
Same continuedexcessive levy
247
Sheriffs sale and deed 231 Same continuedmere irregularities
249
Secondary evidence of execution and sheriffs deed
250
Recitals in sheriffs deedswhen and how far evidence 234 The interest or estate conveyed by the sheriffs sale
251
23 Presumption of title from judicial sale
253
Transmission of title by tax sales
254
The tax execution
257
Same continuedtransferred tax fl fa 239 Same continuedtax executions in personam and in remwild lands
258
Levy and sale under tax fi
260
The tax deed and recitals therein
262
The title that passes by tax sale
263
Tax title inchoate during redemption period 244 Municipal tax sales
267
Deeds from administrators and executors
268
Same continuedconcordance of name how testedidem sonansab breviations
285
Proving identityoral testimony
286
Deeds by receivers commissioners and others acting under decrees in equity
287
Sales of homestead property
288
Same continuedthe title to the reversion
291
CHAPTER XI
293
Nuncupative wills
297
Title through years support proceedings
298
Same continuedwho takes under years support
301
Same continuedwhat title passes by years support proceedings
302
Same continuedhow title under years support is held
303
Same continuedthe widows power to sell property set apart as years support
304
Merger of years support and homestead 274 The proof of the title by years support
306
Deeds from wife to husband and vice versa
307
Same continued
309
Same continueddeeds to secure debts 278 Title through decrees and judgments
312
Proving other writingsbonds for title
317
Showing title by descent
318
Same continuedproving kinship
322
Same continuedproving marriage
324
Identifying persons connected with the titlegenerally
328
Same continuedproof of identity by concordance of name and other circumstances
329
CHAPTER XII
336
Possession is referred to the claim of title under which the claim of right is asserted
339
Possession under color of title
340
Possession as an act exclusive in its nature
344
The various juridic phases of possession
345
Possession of itself a thing entitled to legal protection
346
The rationale of recovery In ejectment on prior possession 300 Same continuedno recovery on abandoned possession 301 Same continuedwhen prio...
352
Same continuedwhere defendant enters under lawful right
355
Ancestor dying in possession of land
356
Same continuedillustrations
360
Possession how evidenced 306 Actual possession
361
Constructive possession
365
The origin of the doctrine of constructive possession
366
The element of notoriety in possession 310 The element of notoriety in constructive possession
368
What is a tract within the constructive possession rule
373
Interlocks
374
Constructive possessionto what cases applicable
375
Possession as notice 315 Possession of husband and wife
376
CHAPTER XIII
378
The length of adverse possession required
381
Prescription by adverse possession alone
382
Prescription under color of title 322 Possession under mistake of boundary
383
Same continued
387
Honest claim of right
388
Same continuedthe nature of the fraud that vitiates
390
Same continuedentry under forged color of title 330 Notoriety or publicity of possession
393
Exclusiveness of possession 332 Continuity of adverse possession
395
Same continued 334 Disabilities 335 Exceptions
397
Same continuedimplied or judicial exceptions
399
Same continuedremainderman pending the duration of the lifeestate
400
Exception as to unrepresented estate
402
Exception when right to sue is joint 340 Exception resulting from fraudulent conduct
403
Exception where unsuccessful suit is recommenced within six months
404
Burden of proof where prescription is asserted 343 Prescription works against the legal title
406
Same continuedthe rule stated
407
Prescription complete against legal title is superior to equitable title
408
Same continuedextent of trustees title controlling
409
The rank of prescriptive title
412
Prescriptive title when ripe continues notwithstanding abandonment of adverse possession
413
Prescription may not extend to the whole estate or title
414
To whose benefit the prescription insures
415
What property may be acquired by prescriptiontimbermineral In terests
416
No prescription as against the Statemunicipal corporations 355 Presumption of grant from twenty years possession
418
General remarks as to possessory and prescriptive titles in Georgia
419
CHAPTER XIV
420
Same continuedagreement to hold specially
421
Same continuedadmission of title implied from claim of title
422
When plaintiff and defendant claim under common source of title
423
Same continuedillustrative cases
425
The right of the defendant to claim under more than one source
428
Where defendant holds under a forged conveyance 365 Burden and method of proof
430
Same continued
431
Extent of the Implied admission of title in the common grantor 368 Landlord v tenant
432
Same continuedtenant cannot assert paramount title In himself or in a third person
434
Same continuedhow long the estoppel continues
436
Same continuedprescription
437
Same continuedcertain defenses open to the tenant
439
CHAPTER XV
442
Same continued
444
Same continued
446
Same continuedvendors remedy by ejectment cumulative 377 Same continuedthe effect of a transfer of the purchasemoney notes
449
Same continuedthe vendees rights
451
Same continuedthe effect of rescission
452
Same continued
454
Same continuedprescription
456
The rights of a holder of a bond for title to maintain ejectment 383 Same continuedwhere the vendor dies before making deed
458
Vendee v vendor in executed sales
459
Same continuedvoid deedsvoidable deeds
460
Deeds to secure debt
461
Same continuedsecurity deed distinguished from mortgage 388 Same continueddeed absolute on its face
466
Same continuedthe cumulative remedies of the grantee in a security deed
467
Same continuedejectment lies though other remedies barred 391 Same continuedpossession under invalid foreclosure 392 Same continuedprescription
470
Usurious security deeds
473
Security deeds void for other causes
476
Equitable defenses by the maker of the security deed
477
Same continuedplaintiffs right to ask foreclosure in ejectment suit 397 Same continuedwhere receivership is proper 398 The rights of transferees
479
CHAPTER XVI
481
Same continuedthe plaintiffs title
486
Administrator v heir at
487
Executor v devisee
489
Beneficiary v fiduciary 408 Same continuedillustrative cases
491
CHAPTER XVII
493
The count for mesne profits as an action to recover money
495
Who is bound for mesne profits
496
Setting off improvements against mesne profits
497
Same continued
498
Same continuedconstitutionality 417 Setoff by trespassers
499
The character of the improvements
500
The equitable character of the count for mesne profits
502
CHAPTER XVIII
503
The writ of possession
507
Same continuedwho to be evicted under the writ of possession
508
Directing the verdict
509
CHAPTER XIX
511
Declaration in ejectment fictitious form with several demises
515
The plea to the declaration in the fictitious form
516
Disclaimer 434 Joining other claimants or warrantors as defendants
517
Motion to strike unauthorized demise
518
Bond to indemnify lessor
519
Amendments
520
The Jack Jones or short form 439 Petition under the Neel Act 440 Answer under the Neel
521
Supplemental petition
523
Plea setting up the same matters 443 Plea setting off improvements
524
Affidavit of forgery 445 Attestation acknowledgment and probate of deeds
526
Verdict
527
Judgment 448 Writ of possession
528
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