Odger's English Common Law

Chapter III.
RECOVERY OF LAND.
Before the Judicature Act, 1878, actions at law were
divided into three classes—real, personal and mixed. In real
actions, questions of title to land were decided ; in mixed
actions, claims to possession of land ; and in personal actions,
claims for debt or damages. In 1873 the only mixed action
surviving was the action of ejectment. The Judicature Act
created the action for the recovery of land, which practically
takes -the place of both the former real and mixed actions.
If the plaintiff succeeds in such an action, a writ will issue
to the sheriff, bidding him enter on the land and without
delay "cause the plaintiff to have possession of the said
land and premises with the appurtenances." But although
this action is in form brought only to recover possession of
land, yet in it questions .of title are frequently decided ; and
in such an action the plaintiff can apply to the Court for a
declaration that he is entitled to the land in question. 1 But
where the action is brought by a landlord against his tenant,
no question of title can arise, as a tenant is estopped from
denying his landlord's title. 2
The plaintiff in an action for the recovery of land is always
a person who is out of possession, but who claims to have a
right to the immediate possession of the land. If he desires
to recover the whole of the premises mentioned on his writ, he
should join as a defendant every person who is in possession
of any part of them. He will be prima facie entitled to a
verdict on proof that the land is his ; for the ownership of land
involves a right to the possession of it, unless the owner has
voluntarily parted with possession to some third person. If the
1 Gledhill v. Hunter (L830), It Ch. D. 492; and see Declaration of Title, post,
p. 1161.
2 Seepost, p. 1265.