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Updated: May 1, 2025
It has been mentioned above, that words of covenant may annex an easement to land, and that words of grant may import a covenant. It would be rather narrow to give a disseisor one remedy, and deny him another, where the right was one, and the same words made both the grant and the covenant. /5/
The disseisor would be protected in his possession of the land against all but the rightful owner, and he would equally be protected in his use of the way. This rule of law does not stand on a succession between the wrongful possessor and the owner, which is out of the question. Neither can it be defended on the same ground as the protection to the occupation of the land itself.
As was said in a case of the time of Edward I., "no one can bind assigns to warranty, since warranty always extends to heirs who claim by succession and not by assignment." /2/ But when particular land was bound, the warranty went with it, even into the hands of the King, because, as Bracton says, the thing goes with its burden to every one. /3/ Fleta writes that every possessor will be held. /4/ There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful.
But when the former possessor has already gained a right of way before he is turned out, a new principle comes into operation. If the owner of the land over which the way ran stopped it up, and was sued by the wrongful possessor, a defence on the ground that the disseisor had not succeeded to the former owner's rights would not prevail.
This instance, therefore, comes very near that of a disseisor. Services and rent, then, were, and to some extent are still, dealt with by the law from the point of view of property. They were things which could be owned and transferred like other property. They could be possessed even by wrong, and possessory remedies were given for them.
Thus Brian, Chief Justice of England under Henry VII., says, "If I am disseised of a manor, and the tenants pay their rent to the disseisor, and then I re-enter, I shall not have the back rent of my tenants which they have paid to my disseisor, but the disseisor shall pay for all in trespass or assize." /5/ This opinion was evidently founded on the notion that the rent was attached to the chief land like an easement.
And therefore it would seem that in such a case the tenant could refuse to pay him rent, and that payment to him would be no defence against the true owner. /1/ Nevertheless, if the tenant recognized him, the disseisor would be protected as against persons who could not show a better title. /2/ Furthermore, the rent was so far annexed to the land that whoever came by the reversion lawfully could collect it, including the superior lord in case of escheat. /3/ Yet escheat meant the extinction of the fee of which the lease and rent were parts, and although Bracton regarded the lord as coming in under the tenant's title pro herede, in privity, it was soon correctly settled that he did not, but came in paramount.
The writ against a disseisor was for "so much land and its appurtenances," /2/ which must mean that he who had the land even wrongfully had the appurtenances.
It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and this conclusion was adopted by the early law. The lord could require the services, /1/ or collect the rent /2/ of any one who had the land, because, as was said in language very like Bracton's, "the charge of the rent goes with the land." /3/
If a right in the nature of an easement could be attached to land by prescription, it could equally be attached by grant. If it went with the land in one case, even into the hands of a disseisor, it must have gone with it in the other. No satisfactory distinction could be based on the mode of acquisition, /2/ nor was any attempted.
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