George P. Frost vs. J. Cloutman and Miriam, his wife, 7 N.H. 9

Richardson, C. .!.. drew up the opinion of the court. This is a writ of formedon in remainder, in which the de-mandant claims to recover the demanded premises as his inheritance, according to the form of the gift contained in the will of Joseph Frost. It is not disputed that the demandant is entitled to judgment in this case, unless the defence upon which the tenants rely is a legal answer to the action. That defence is the common recovery suffered by Joseph Frost, the tenant in tail, in 1819; and it is not disputed that if that recovery was legally executed, it is a bar to this action.

But it is objected, that nothing passed by the recovery, because it was never executed by a writ of seizin. To this it is answered, in the first place, that the recovery bound the right; and as this action is in its nature a writ of right, the demandant cannot recover, whether the common recovery was executed or not; and in the next place, that the reeoveror having entered upon the land after the recovery, that was all the execution -which the law required.

It is not denied that the reeoveror entered after judgment; and the question is whether this was such an execution of the recovery as to make it effectual to bar the claim of this demandant ?

The law of common recoveries was much discussed in Shelly's case, 1 Coke 93; Moor 136; and it was finally settled, that the right of the estate tail is bound by the judgment in a common recovery, and the recovery over to have in value ; that there is no seizin in the reeoveror until execution is done ; but that execution against the issue in tail, done after the death of him against whom the judgment in the recovery was rendered, has relation to the judgment, and is a legal execution of the recovery.

Ever since the judgment in Shelly ’s case, it seems to have been considered as settled, that a common recovery vests no freehold in deed or in .law before execution served. Co. Litt. 266, b. note, (2;) Pigott on Recoveries, 31 and 153; Shep. T. 40. In Witham vs. the Earl of Derby, 1 Wilson 48, it was decided that a recovery not executed had no manner of operation. The reason is. because no use can arise till the reeoveror has seizin. In that case the recovery was suffered in the year 1514. The trial in Witham vs. Derby was in 1744.

The person to whose use the recovery was suffered, entered, and he and his heirs had been in possession two hundred and thirty years. But it was objected, that no writ of seizin or entry of the reco-verors appeared, and for that reason the recovery was held to be void and without effect. 2 Strange 1185. The question to be decided in this case is. then, whether the entry by the recoveror was a sufficient execution to render the recovery effectual ? If it were, the tenants are entitled to judgment. A recovery is always to uses, and no use can arise until the recoveror has seizin. Pigott on Recoveries 153.

What then is seizin ? Coke says that seizin signifies in the common law, possession. Co. Litt. 153, a. Again he says that seizin is derived from sedendo. “ For till a man have seizin all is labor “ et dolor et vexatio spiritus; but when he hath seizin, he “ may sedere et acquiescere. In all suits to recover seizin, or “possession, he who prosecutes them ought to labor, but when “he hath obtained seizin he may sedere et accumbere in “peace and tranquillity.” 6 Rep. 58. Seizin then is only possession.

At the common law a judgment in a writ of entry did not vest in the demandant seizin or actual possession until it was executed. But after judgment in his favor in a writ of entry the demandant might enter. Comyn’s Digest, “ Execution,” A 1; Co. Litt. 34, b. And if after such entry he sue a scire facias to have a writ of seizin, his entry may be pleaded in bar of the scire facias. Rastell’s Entries, 539. In CapeVs case, 1 Coke’s R. 57, a common recovery is pleaded as executed by entry. In this case, the recoveror has been in possession of the demanded premises ever since the recovery.

The recove-ror and Joseph Frost, to whose use the recovery was had, were both in possession and upon the land immediately upon the recovery. And Littleton says, when two be in one house, and the one claimeth by one title and the other by another title, the law shall judge him in possession that hath right to be in possession. In this ease the judgment gave Miriam a right of entry, and the moment she entered she acquired a seizin of the land, and the recovery was thus duly executed. We are therefore of opinion that there must be Judgment for the tenants.